Chelva v Brodyn [2005] NSWSC 701

New South Wales Supreme Court

CITATION : Chelva v Brodyn [2005] NSWSC 701

HEARING DATE(S) : 24/06/2005

JUDGMENT DATE : 15 July 2005

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 20

CATCHWORDS : Reference under Part 72 of the Supreme Court Rules. Whether Referee adopted an appropriate method of determining reference. Report adopted.

PARTIES : Chelva Holdings Pty Limited v Brodyn Pty Limited

FILE NUMBER(S) : SC 55076/2005

Mr D Shoebridge for plaintiff/applicant COUNSEL : Mr T.O. Bland for defendant/respondent

Taylor & Scott for plaintiff/applicant SOLICITORS : Johninfo Lawyers for defendant/respondent

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION TECHNOLOGY AND CONSTRUCTION LIST

Associate Justice Macready

Friday 15 July 2005

55076 2004 Chelva Holdings Pty Limited v Brodyn Pty Limited JUDGMENT 1 His Honour: This is the hearing of the defendant's motion filed a 18 May 2005 which seeks a partial adoption of a report of Mr Austin dated 2 May 2005. Mr Austin made the report pursuant to a reference under part 72 of the Supreme Court Rules. The applicant sought the adoption of paragraphs 1 to 4 and paragraphs 7 to 11 of the amended determination of Mr Austin. The applicant sought the rejection of paragraphs 5, 6 and 12 of the determination. The motion did not seek any orders as to the determination of the parts in respect of which it was suggested there be rejection. In argument it appeared that the applicant wished the Court to determine those matters or, alternatively, order a further report. 2 The dispute arose out of a contract for the cement rendering of an apartment building at 301-313 Stanmore Road, Petersham. It appears that late last year the parties agreed to have Mr Austin carry out the determination. In a letter dated 16 December 2004 he suggested a procedure; the provision of all available documents to him; a view with perhaps a few questions after it; and then submissions from the parties. This procedure was put in place and he was supplied with a series of documents including various affidavits from the parties. 3 In due course Mr Austin made his report on 23 February 2005. When the matter was back before the Court the parties realised that in fact there had been no order made for the reference. On 26 April 2005 the Court made the usual order for reference to Mr Austin for him to enquire and report on the matter in the schedule to the order. The relevant parts of the schedule were as follows: "SCHEDULE To re-consider (on the basis of further submissions by the parties) certain aspects of the expert determination dated 23 February 2005 as outlined below. The evidence to be considered by the expert is all evidence submitted to the expert prior to his determination dated 23 February 2005, together with any observations made by the expert during his site visit. Matters for re-consideration on the basis of the parties submissions: 1. To confirm or amend the finding in paragraph 5.04 of the expert determination dated 23 February 2005 as to the actual quantity of external render; 2. To confirm or amend the finding of the actual quantities of lineal meters of external render carried out by Chelva Holdings in paragraph 5.05; 3. To confirm or amend the findings in paragraph 6.06 – 6.08 as to whether or not openings have been or are not to be deducted from the total of 4871.77 and thereafter reconcile that finding with the alleged term of the contract as stated in paragraphs 10 to 15 of the affidavit of Brett Matterson dated 31 January 2005 and Subcontractor pre-award minutes referred to therein to the effect that if openings are not deducted then there shall be no allowance for reveals; 4…… 4 The defendant complained about paragraph 5 of the report which dealt with the measurement of the external render and paragraph 6 which measured the internal render. In essence the defendant submitted that what was required of the expert was a physical measurement of actual areas of the two items of work rather than the method adopted by the referee.