Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 271

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gray t/as Clarence Valley Plumbing Services v Ware Building Pty Ltd [2013] NSWCA 271 Hearing dates: 4 July 2013 Decision date: 23 August 2013 Before: Meagher JA at [1] Ward JA at [2] Leeming JA at [102] Decision: 1. Appeal allowed. 2. Judgment and orders made on 14 June 2012 by Toner DCJ be set aside. 3. The matter be remitted to the District Court for rehearing. 4. The respondent is to pay the costs of the appeal and of the hearing below. 5. The respondent is to have a certificate under the Suitors' Fund Act, 1951 (NSW), if qualified. [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 AND NEW TRIAL - procedural fairness - where request for adjournment and transfer of trial to another location refused - where defendant (now appellant) did not attend - whether violation of the hearing rule established

CONTRACT - construction of clause giving rise to an election to terminate on a insolvency event - whether there was anything that indicated the defendant (now appellant) was or would be insolvent at the relevant time - whether contract validly terminated

EVIDENCE - where evidence adduced ex-parte - where evidence is comprised of hearsay - whether evidence should be given less weight Legislation Cited: Betting, Gaming and Lotteries Act 1963 (UK) Building and Construction Industry Security of Payment Act 1999 Civil Procedure Act 2005 Social Security Act 1947 (Cth) Suitors' Fund Act, 1951 Cases Cited: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Ballas v Theophilos [No 2] [1957] HCA 90; (1957) 98 CLR 193 Bellgrove v Eldridge (1954) 90 CLR 613 Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 558 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWSCA 184 1073 Cussen as liquidator of Akai Pty Ltd (in liq) v Commissioner of Taxation [2004] NSWCA 383 Federal Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 Fingleton v Richardson (1980) 23 SASR 297 Forster v Harvey [2006] NSWSC 1112 Hymix Concrete Pty Ltd v Garritty (1977) 2 ACLR 559 Iso Lilodw' Aliphumeleli Pty Ltd (in liq) and Anor v Commissioner of Taxation [2002] NSWSC 644 Jeray v Blue Mountains City Council [2012] NSWCA 339 McDonald v McDonnell & East Pty Ltd Ex parte McDonald [1957] Qd R 540 Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Manpac Industries v Ceccattini [2002] NSWSC 330; (2002) 20 ACLC 1304 Maurice Binks (Turf Accountants) Ltd v Huss [1971] 1 WLR 52; [1971] 1 All ER 104 Noxequin Pty Ltd v Deputy Commissioner of Taxation [2007] NSWSC 87 OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd [2013] NSWCA 27 Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 Re Secretary, Department of Social Security and Truscott [1995] AATA 278; (1995) 39 ALD 597 Reid v Moreland Timber Co Pty Ltd [1946] HCA 48; (1946) 73 CLR 1 Richardson v Fingleton (1980) 24 SASR 511 Seltsam v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 Walker v Walker [1937] HCA 44; (1937) 57 CLR 630 Category: Principal judgment Parties: Robert Gray t/as Clarence Valley Plumbing Services (Appellant) Ware Building Pty Ltd (Respondent) Representation: Counsel: K J Pierce (Appellant) Ms L Thomas (Respondent) Solicitors: Barraclough Jones & Associates (Respondent) File Number(s): CA 2012/318523 Decision under appeal Jurisdiction: 9101 Citation: Ware Building Pty Ltd v Robert Gray Trading as Clarence Valley Plumbing Services Date of Decision: 2012-06-14 00:00:00 Before: Toner DCJ File Number(s): DC 2010/210587