Marinchek v Cabport Pty Ltd [2010] NSWCA 334

New South Wales Court of Appeal

CITATION: Marinchek v Cabport Pty Ltd [2010] NSWCA 334

HEARING DATE(S): 23 September 2010

JUDGMENT DATE: 9 December 2010

JUDGMENT OF: Macfarlan JA at 1; Handley AJA at 65; Harrison J at 66

(1) Appeal allowed; (2) Set aside the orders made at first instance dismissing the appellant's Cross-Claim against the first respondent, Cabport Pty Ltd, and that the appellant pay the first respondent's costs of that Cross-Claim; (3) Order that a new trial be held of the appellant's Cross-Claim in so far as that Cross-Claim relates to alleged defects in the subject works (other than Defects 13 and 14 identified in the schedules submitted by the parties to this Court) and to alleged overpayment by the appellant; DECISION: (4) Order the appellant to pay the second, third and fourth respondents' costs of the appeal; (5) Order the first respondent to pay one-half of the appellant's costs of the appeal; and (6) The first respondent to have a certificate under the Suitors' Fund Act 1951, if qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: CONTRACT - agreement to settle disputes - held not to preclude claims in relation to matters of which parties unaware at date of agreement.

LEGISLATION CITED: Home Building Act 1989 Trade Practices Act 1974 (Cth)