El-Mir & 1 Or v Risk [2005] NSWCA 215

New South Wales Court of Appeal

CITATION: El-Mir & 1 Or v Risk [2005] NSWCA 215

HEARING DATE(S): 25 August 2004

JUDGMENT DATE: 24 June 2005

JUDGMENT OF: Handley JA at 1; Ipp JA at 2; McColl JA at 3

DECISION: (1 ) Appeal allowed with costs.; (2) Judgment and orders of the District Court made on 18 July 2003 set aside.; (3) Grant leave to the appellants to amend their Notice of Grounds of Defence by adding para 3A in accordance with the Draft Amended Notice of Grounds of Defence tendered during the hearing of the appeal subject to such terms as to the costs of the earlier proceedings in the District Court and the reference as this Court may impose after receiving further submissions.; (4) Order pursuant to DCR Pt 26 r 5AA that the questions of fact and law raised by para 3A of the Amended Defence be tried separately from any other question.; (5) If the appellants succeed on the separate questions direct that judgment be entered for them in the action and for the plaintiff on the cross-claim, the costs of the separate hearing to be in the discretion of the judge presiding at that hearing. ; (6) If the appellants fail on the separate question direct that judgment be entered for the plaintiff in the action for $199,172.88 with effect from 30 July 2003, the costs of the separate hearing to be in the discretion of the judge presiding at that hearing.; (7) The respondent to file written submissions as to the terms, if any, to be imposed as a condition of granting leave to amend within 14 days.; (8) The appellants to file written submissions in reply within a further 14 days.; (9) The respondent to file any submissions in reply within a further 7 days.; (10 )The respondent to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: CONTRACT - accord and satisfaction - whether terms of settlement amounted to accord and satisfaction of claims under building contract - effect of accord and satisfaction - discharge of original cause of action - WAIVER - whether filing of defence and cross-claim constituted waiver - PRACTICE AND PROCEDURE - amendment of pleadings to accord with basis upon which reference conducted -APPEAL - Referee's report - appeal from adoption of referee's report - whether judge erred in ordering report be adopted. (D)