Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2013] NSWCA 6

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd [2013] NSWCA 6 Hearing dates: 1, 2 November 2012 Decision date: 11 February 2013 Before: Meagher JA (at [1]); Barrett JA (at [2]); Ward JA (at [149]) Decision: 1. Direct that, if the parties agree on the form of the orders appropriate to give effect to the decision of this Court, they shall within 14 days file short minutes of those orders. 2. Direct that, if the parties do not agree on the form of the orders appropriate to give effect to the decision of this Court, each shall within 21 days file short minutes of the orders for which it contends together with brief written submissions in support of the making of those orders. 3. Direct that the parties exchange brief written submissions on costs and that those submissions be filed within 21 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: CONTRACTS - building engineering and related contracts - variations - delays - extensions of time - PROCEDURE - proceedings or part thereof referred to a referee for inquiry and report - function of court upon motion for adoption of referee's report - function of appellate court upon appeal from decision on such motion - consideration of whether sufficient evidentiary basis for various decisions of judge upon motion for adoption - DAMAGES - breach of contract - delay in completion of works - appropriate manner of assessing damages for late completion - INTEREST - pre-judgment interest - applicable regime for computing interest in the particular case Legislation Cited: Civil Procedure Act 2005, s 100 Industrial Relations Act 1996, s 127 Supreme Court Rules 1970, Part 72 Uniform Civil Procedure Rules 2005, Division 3 Part 20, rule 20.24 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228 Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60 Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615 Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 (per Alderson B at ER 151) House v The King [1936] HCA 40; (1936) 55 CLR 499 Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd (unreported, New South Wales Court of Appeal, 8 June 1994) Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 Walton Construction Pty Ltd v Illawarra Hotel Company Pty Ltd [2011] NSWSC 534 Walton Construction Pty Ltd v Illawarra Hotel Company Pty Ltd [2011] NSWSC 1188 Wenco Industrial Pty Ltd v WW Industries Pty Ltd [2009] VSCA 191; (2009) 25 VR 119 White Constructions (NT) Pty Ltd v Commonwealth of Australia (1990) 7 BCL 193 Category: Principal judgment Parties: Illawarra Hotel Company Pty Ltd - Appellant Walton Construction Pty Ltd - Respondent Representation: S R Donaldson SC/ Ms H M Durham /D A Moujalli - Appellant W Sofronoff QC/M R Gracie/D A Neggo - Respondent Norbert Lipton & Co - Appellant Crisp Legal - Respondent File Number(s): 2008/290556 Decision under appeal Citation: (1) Walton Construction Pty Ltd v Illawarra Hotel Company Pty Ltd [2011] NSWSC 534; (2) Walton Construction Pty Ltd v Illawarra Hotel Company Pty Ltd [2011] NSWSC 1188 Before: (1) Einstein J; (2) McDougall J File Number(s): 2008/290556