Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 Hearing dates: 18 and 19 July 2011 Decision date: 08 September 2011 Before: Basten JA at [1] Macfarlan JA at [33] Sackville AJA at [117] Decision: (1)Appeal allowed in part. (2)Set aside orders 1 to 5 inclusive made at first instance on 10 June 2010. (3)Remit the proceedings to the Common Law Division, to be heard by a judge other than the primary judge, to determine the respondent's contract claim but only insofar as it claims damages of $147,159 in respect of part of the original contract sum unpaid and $90,000 arising out of an alleged written variation of the building contract entered into in November 2004, and to make consequential orders. (4)Direct that: (a)within seven days of the date of this judgment the appellants file and serve written submissions as to the costs orders that should be made in respect of the proceedings at first instance and on appeal; (b)the respondent file and serve its submissions as to those orders within seven days thereafter; and (c)the appellants file and serve any reply within a further seven days. [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 - whether primary judge erred in finding that the appellants promised for consideration to sign forms of guarantee