New South Wales Court of Appeal CITATION: Selwan Property Holdings Pty Ltd v Grocon Constructions Pty Ltd [2009] NSWCA 73 HEARING DATE(S): 31/03/2009 JUDGMENT DATE: 31 March 2009 JUDGMENT OF: Handley AJA at 1; Sackville AJA at 10 EX TEMPORE JUDGMENT DATE: 31 March 2009 DECISION: Summons dismissed with costs. CATCHWORDS: Leave to appeal from interlocutory order for costs. PARTIES: JA & BM Bowden & Son Pty Ltd (Applicants) Paul Doughty (Respondent) FILE NUMBER(S): CA 40379/2008 COUNSEL: F Corsaro SC and F Kalyk - Applicants J Simpkins SC and D Manly - Respondents SOLICITORS: Ross Koffel, Koffels Pty Ltd - Applicants Cosoff Cudmore Knox - Respondents LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 55092/2005 LOWER COURT JUDICIAL OFFICER: Palmer J LOWER COURT DATE OF DECISION: 7 August 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40379/08 HANDLEY AJA SACKVILLE AJA TUESDAY 31 MARCH 2009 SELWAN PROPERTY HOLDINGS PTY LIMITED & 2 ORS v GROCON CONSTRUCTIONS PTY LIMITED Judgment 1 HANDLEY AJA: The application presently before the court arises out of proceedings pending in the Technology and Construction list involving a contract for the construction of a multi-storey building in the central business district of Sydney. Large amounts of money are at stake on both sides. 2 The hearing was fixed to commence before Mr Justice Palmer on 4 August 2008. As a result of events occurring shortly before it became apparent that the hearing could not proceed and ultimately it was adjourned. His Honour declined to sever the issues of liability and damages and that decision is not challenged. The challenge brought by the defendants relates to his Honour's order on 7 August that they pay the costs thrown away as a result of the adjournment. 3 His Honour said that the defendants had, without leave and outside the time limits imposed by the court's directions, served a substantial expert's report on quantum which changed the nature of their case. He attributed to counsel for the defendants a concession to that effect and a further concession that the plaintiff would not have sufficient time to meet the new case if the matter were to proceed on all issues at that stage. 4 His Honour later added that the defendants had abandoned an earlier expert report as to damages and had sought at the very last moment to substitute a new report from that expert "which departs radically from his previous report." 5 Although these reports had been provided by the defendants on the record, they related to their cross claim in which damages were sought running into many millions of dollars. The reports related to the cross claimant's claim for damages for loss of the bargain following the alleged repudiation of the building contract by the plaintiff. 6 Mr Corsaro SC, who appears for the applicants on the application for leave, denied making the concessions attributed to him by the primary judge and we have not been shown anything in the transcript which records the clear concession found by the judge. Nevertheless, the sheer size of the two new expert's reports and the changes in the damages claim distilled in the affidavit of the plaintiff's solicitor, demonstrates that his Honour was certainly entitled to take the view expressed in the passages referred to. 7 The application relates to a matter of practice and procedure and the court's approach to applications for leave to appeal in such cases has reflected the statement of principle by Jordan CJ in The Will of Gilbert, (1946) 46 SR 318 at 323 where his Honour said: "If a tight rein were not kept on interference with the orders of judges at first instance, the result would be disastrous for the proper administration of justice. The disposal of cases could be delayed interminably and costs heaped up indefinitely if a litigant with a long purse or a litigious disposition could at will in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a court of appeal." 8 The grounds on which an appellate court will interfere with an order made in the exercise of a judge's discretion in a matter of practice and procedure are well known. We have not been persuaded that the learned primary judge fell into any error of a kind which would warrant the grant of leave to appeal and the allowance of that appeal. 9 Accordingly, the summons is dismissed with costs. 10 SACKVILLE AJA: I agree. oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.