Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Taupau v HVAC Constructions (Queensland) Pty Limited & Ors [2012] NSWCA 293 Hearing dates: 28 and 29 February 2012 Decision date: 18 September 2012 Before: Beazley JA at [1]; Basten JA at [219]; Macfarlan JA at [220] Decision: 1. Appeal allowed; 2. Cross-appeal allowed; 3. Set aside the orders of the trial judge; 4. Dismiss the appellant/plaintiff's statement of claim against the first respondent/first defendant; 5. Dismiss the appeal against the first respondent/first defendant; 6. Note that no order for costs is made in respect of the proceedings against the first respondent/first defendant, either of the appeal or in the court below with the intent that the appellant/plaintiff and first respondent/first defendant are to bear their own costs of each proceeding; 7. Judgment for the appellant/plaintiff against the second respondent/second defendant. The parties to bring in short minutes of order in respect of the judgment sum assessed in accordance with these reasons. 8. The second and third respondents are to bring in short minutes of order in respect of the cross-claim; 9. Order that the second respondent/second defendant pay the appellant's costs of the appeal and in the court below. 10. Order that the second respondent/second defendant pay the costs of the third respondent/third defendant's cross claim and cross-appeal. [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 - Appellate review - Applicable legal principles - Appeal by way of rehearing - Real review of the trial - Court of Appeal required to give effect to independent review bearing in mind advantages enjoyed by trial judge.