U.S. Manufacturing Company Limited v ABB Service Pty Limited [2006] NSWSC 651

New South Wales Supreme Court

CITATION : U.S. Manufacturing Company Limited v ABB Service Pty Limited [2006] NSWSC 651

HEARING DATE(S) : 23 June 2006

JUDGMENT DATE : 3 July 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The application fails. The Notice of Motion is dismissed. The Plaintiff is to pay the costs of the Notice of Motion.

CATCHWORDS : Application to adduce further evidence in appeal - distinction between fresh evidence and further evidence - special grounds - witness said to be in ill health at time of trial becomes available after bringing of appeal.

LEGISLATION CITED : Supreme Court Act 1970, s 75A, r 46.16

CASES CITED : Akins v National Australia Bank (1994) 34 NSWLR 155

PARTIES : U.S. Manufacturing Company Limited (ACN 935 231 553) (Plaintiff) ABB Service Pty Limited (ACN 68 003 337 611) (Defendant)

FILE NUMBER(S) : SC 15221/05

COUNSEL : R G Hanrahan (Plaintiff) W V McManus (Defendant)

SOLICITORS : Thomas Booler & Co (Plaintiff) Peter Kinsey (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1558/04

LOWER COURT JUDICIAL OFFICER : Johnson LCM

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Monday, 3 July 2006

15221 of 2005 U.S. Manufacturing Company Pty Limited (ACN 935 231 553) v ABB Service Pty Limited (ACN 68 003 337 611)

JUDGMENT 1 His Honour: These proceedings concern a dispute relating to the number of gearboxes delivered by the Plaintiff to the Defendant. The Plaintiff contends that in December 2002 it delivered eight gearboxes. The Defendant alleges that only four were delivered. The Plaintiff further contends that in January 2003 it delivered another eight gear boxes (six being new and two being reconditioned). The Defendant alleges that once again only four were delivered at that time. The place of delivery was a Sydney Water sewerage plant at Winmalee. 2 There is common ground that the Defendant paid for eight gearboxes in December 2002. The dispute that remains is the question of payment for the other eight gearboxes. At its highest, the Plaintiff's claim is in the order of $23,000. 3 The Plaintiff commenced proceedings in the Local Court in June 2004. There was an arbitration. The Plaintiff was unsuccessful. It applied for a rehearing. The rehearing took place before Johnson LCM. It involved four hearing days occupying the period between 22 April 2005 and 9 September 2005. Judgment was delivered on 10 October 2005. Again, the Plaintiff was unsuccessful. 4 On 9 November 2005, the Plaintiff filed a Summons in this Court. It seeks the setting aside of the decision of the Magistrate and the remitting of the matter to the Local Court for rehearing. 5 At relevant times, Mr O'Brien was an employee of Sydney Water and based at Winmalee. Some months prior to 7 March 2006, he spoke to a fellow employee (Mr Fitzpatrick). Mr Fitzpatrick had been a witness for the Plaintiff in the proceedings before the Magistrate. Following the conversation, Mr O'Brien received a telephone call from Mr Dogramaci. He is or was a principal of the Plaintiff. 6 Following that conversation, Mr O'Brien attended the offices of the solicitors for the Plaintiff. He provided them with material which led to the swearing of an affidavit on 7 March 2006. 7 Generally speaking, inter alia, the affidavit sets out the evidence that Mr O'Brien would have been able to give had he been called at the trial before the Magistrate. The evidence includes material relevant to the delivery of the gearboxes. One matter deposed to is his presence at the time of delivery. 8 The affidavit contains, inter alia, the following:- "17. Leading up to the proceedings in the Local Court commencing on 22 April 2005, I was suffering from hypertension, stress, different types of pain and a skin condition which also caused me considerable pain and prevented me from exposure to sun light. Annexed hereto and marked "C" is a copy of my doctor's report and letters on my condition and annexed hereto and marked "D" is photographs of my skin problems. …