Relative Mirait Services Pty Ltd v Midcoast Under Road Boring Pty Ltd [2013] NSWSC 107

Supreme Court New South Wales

Medium Neutral Citation: Relative Mirait Services Pty Ltd v Midcoast Under Road Boring Pty Ltd [2013] NSWSC 107 Hearing dates: 9 August 2012 Decision date: 22 February 2013 Jurisdiction: Common Law Before: Latham J Decision: Leave to appeal refused Catchwords: LEAVE TO APPEAL - application for leave to appeal from Local Court to the Supreme Court - s 40(1), Local Court Act 2007 (NSW) - no question of mixed fact and law raised by the appeal - no denial of procedural fairness - magistrate correctly applied test for implying terms contained in Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 - magistrate did not rely on an implied term of law but correctly implied the term based on fact - magistrate did not draw an inference from facts that could not reasonably be drawn - leave refused. Legislation Cited: Building and Construction Industry Security of Payment Act 1999 Local Court Act 2007 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 BP Refinery (Westernport) Pty Ltd v Shire of Hasting (1997) 180 CLR 266 Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 Carr v Neill [1999] NSWSC 1263 Gangemi Holdings Pty Ltd v Salter [1999] NSWSC 1004 Haines v Leves & Anor.(1987) 8 NSWLR 442 Mahony v Industrial Registrar of New South Wales & Anor. (1986) 8 NSWLR 1 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 State Rail Authority v Smith [2000] NSWSC 334 Category: Principal judgment Parties: Relative Mirait Services Pty Limited - (Plaintiff) Midcoast Under Road Boring Pty Limited - (Defendant) Representation: Counsel Jennifer D Beck - (Plaintiff) AD Justice - (Defendant) Solicitors Priority Business Lawyers - (Plaintiff) Roberts Legal - (Plaintiff) File Number(s): 2011/00344671