Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 Hearing dates: 25 November 2013 Decision date: 18 December 2013 Before: McColl JA at [1]; Basten JA at [2]; Emmett JA at [105] Decision: In the indemnity proceedings CA 2012/300884: (1) Dismiss the appeal. (2) Order the appellant to pay the respondent's costs. In proceedings CA 2012/300879: (1) If either party wishes to: (a) submit that the issue of contributory negligence should be remitted to the District Court, and (b) supplement its written submissions with respect to the proper finding with respect to of contributory negligence he or it should file written submissions, not exceeding eight pages, no later than 24 January 2014. (2) Each party has until 5 February 2014 to file submissions in response, not exceeding five pages. (3) If either party seeks to have the Court reconvene for the purpose of further oral argument, that application should be contained in the submissions referred to above. (4) A party seeking a retrial should nevertheless comply with order (1)(a). (5) If there is a reason why the Court should not dispose of costs at this stage, that should be noted in the submissions; otherwise the submissions may include proposed orders as to costs. [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 - erroneous fact-finding - whether appeal court can substitute its own findings - whether substantial miscarriage warranting retrial