Morrison v Moss (No. 3) [2020] NSWDC 136

District Court New South Wales

Medium Neutral Citation: Morrison v Moss (No. 3) [2020] NSWDC 136 Hearing dates: 23 April 2020 Date of orders: 23 April 2020 Decision date: 23 April 2020 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 45-48 Catchwords: BUILDING AND CONSTRUCTION – referral of question of rectification costs for defective works to referee – whether referee's approach should be wholly or partly adopted – whether a conclusion by referee contrary to evidence Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228 BestCare Foods v Origin Energy [2012] NSWSC 574 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 310 ALR 113 Morrison v Moss & Anor [2019] NSWDC 746 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Texts Cited: Rawlinsons Australian Construction Handbook, 38th edition (2020) Category: Principal judgment Parties: Mr J Morrison (Plaintiff) Mr A Moss (Defendant) Ms E Moss (Defendant) Representation: Counsel: Mr T Bland for the Plaintiff Defendants appeared in person

Solicitors: Osborn Law for the Plaintiff File Number(s): 2018/121395 Publication restriction: Nil

Judgment

BACKGROUND 1. This proceeding concerns construction work at a dwelling at Murrays Beach, near Lake Macquarie. On 12 December 2019, I delivered reasons for judgment [1] . A summary of the findings appeared at [463] of the Earlier Reasons. I do not propose to repeat them here. The gist of the findings was to the effect that the defendants (the 'Builders') were entitled to receive payment for the sum of $56,470.56 (incl. GST) plus interest at the contractual rate. This entitlement was, however, subject to the entitlement of the plaintiff (the 'Owner') to recover damages for defective works in various respects set out in the Earlier Reasons. Specifically, (at [311]-[408]) I made detailed findings as to each of the contested items and whether they amounted to defects and, if they did, indicated my view as to the appropriate scope of rectification works. 2. I directed that the quantum of the rectification costs for the defective works be referred to a referee. On 21 February 2020, I appointed Mr David Madden, of the firm MBMpl Pty Ltd, as that referee. On that occasion, Mr Madden was one of two nominees proposed as referee by the Owner, without objection from the Builders. 3. The terms of reference for that referral were set out in a Schedule appended to the Earlier Reasons (at [466]) which the referee reproduced at Annexure B of his report.