Claire Schneider and Jason Mitchenson (led by P O’Shea KC, J Rowland KC, D Piggott KC, A Stumer KC and leading J Menzies) appeared for the plaintiff, instructed by Corrs Chambers Westgarth.
The proceeding concerned the validity of a referees’ report that examined contractual claims made by the plaintiff against the defendants, that arose from the construction of a coal-seam gas project. The case considered two applications.
Firstly, the defendant brought an application to set aside the draft referee report on the basis of five alleged failures made by the referees – notably apparent bias, a lack of procedural fairness, and a miscarriage of justice (the SA application). During the proceedings, the referees converted their draft report into a final report. This led the plaintiff to bring a cross-application (the 505 application), arguing the court should adopt the referees’ report pursuant to rule 505D of the Uniform Civil Procedure Rules (1999).
Freeburn J dismissed the SA application finding that none of the defendant’s allegations could be established. Further, the 505 application was allowed, with the court adopting the report’s findings, subject to some modifications. Notably, his Honour found the referees incorrectly concluded that clause 29.4 was ineffective because it claimed substantially more than the amount properly due and therefore had to be varied.
The judgment can be read by clicking here
