Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2012] NSWCA 61 Hearing dates: 12, 14 March 2012 Decision date: 14 March 2012 Before: Young JA Decision: Notice of motion seeking appeal to be dismissed as incompetent dismissed with costs. The second (defensive) notice of motion is dismissed as otiose. The costs of that motion can be as part of the costs in the first motion. [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: APPEAL- notice of motion to dismiss appeal as incompetent- whether decision was final, interlocutory or a special class of interlocutory decision- appellant and respondent in dispute over extensions of time under a contract- technical questions referred to a referee- referee's report substantially adopted by first trial judge- subsequent legal questions determined by a second trial judge- whether first trial judge's decision was final or interlocutory- the test as to whether a judgment is final or interlocutory is whether the decision finally determines the rights of the parties- held that the decision of the first trial judge did not finally determine the rights of the parties- therefore decision was interlocutory- motion dismissed with costs.

APPEAL- estoppel from appeal based on prior conduct- appellant filed notice of intention to appeal from decision of first trial judge after date set down for hearing before second trial judge- hearing proceeded with no further action taken in relation to appeal from first trial judge's decision- whether proceeding on the basis of the correctness of the first trial judge's decision operates as an estoppel or unconscientious conduct short of an estoppel- conduct of appellant did not mislead respondent or second trial judge to conclude that there would be no appeal- held that there was no estoppel. Cases Cited: Becker v Marion City Corporation [1977] AC 271 Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 Crowley v Glissan [1905] HCA 13; 2 CLR 402 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 Major Engineering Pty Ltd v Timelink Pacific Pty Ltd [2007] VSCA 228 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 86 ALJR 14 Smith v Tabain (1987) 10 NSWLR 562 Triden Properties Ltd v Capita Financial Group Ltd [1993] NSWCA 272 Category: Interlocutory applications Parties: Illawarra Hotel Company Pty Ltd (Appellant) Walton Construction Pty Ltd (Respondent) Representation: Counsel: S Donaldson SC and H Durham (Appellant) M R Gracie and D Neggo (Respondent) Solicitors: Norbert Lipton & Co (Appellant) Crisp Legal Pty Ltd (Respondent_ File Number(s): CA 2008/290556