Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors (No 2) [2005] NSWCA 1

New South Wales Court of Appeal

CITATION: Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors (No 2) [2005] NSWCA 1

HEARING DATE(S): On written submissions

JUDGMENT DATE: 4 March 2005

JUDGMENT OF: Santow JA at 1; Ipp JA at 2; Pearlman AJA at 36

DECISION: (1) The first and second appeals by Multiplex and Fugen are allowed as against Mr Irving (2) The first and second appeals by Multiplex and Fugen are dismissed as against Royal (3) The orders made by the trial judge in relation to Mr Irving's future economic loss and superannuation on future economic loss be varied as follows: (a) In lieu of the assessment of future economic loss, substitute the sum of $163,075.90 against Fugen and the sum of $198,214 against Multiplex (b) In lieu of the assessment of superannuation on future economic loss, substitute the sum of $17,612.20 against Fugen and $21,407.11 against Multiplex (4) In lieu of order (1) made by the trial judge, judgment be entered for Mr Irving against Multiplex in the sum of $434,735.11 (5) In lieu of Order (2) made by the trial judge, judgment be entered for Multiplex against Fugen in the sum of $434,735.11 (6) Mr Irving to pay Multiplex's costs in the first appeal insofar as those costs relate to grounds 1 to 4 stated in the Notice of Appeal With Appointment dated 4 November 2003 in the first appeal (7) Mr Irving to pay Fugen's costs in the second appeal insofar as those costs relate to grounds 1 to 3 stated in the Notice of Appeal With Appointment dated 24 November 2003 in the second appeal (8) Multiplex to pay Royal's costs of the first appeal and Fugen to pay Royal's costs of the second appeal.

CATCHWORDS: COURTS - Discretion to allow a new argument to be raised after judgment is delivered but before formal orders have been entered - Policy involving finality of litigation precludes raising the argument. D