A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Wednesday, 24 September 2014
Executive Summary (One Minute Read)
Ball v McInerney (NSWCA) - negligent construction claim - defendant allegedly succeeded at trial on case not pleaded - trial will only miscarry on this basis where there is real practical injustice - appeal dismissed
Summaries With Link (Five Minute Read)
Ball v McInerney [2014] NSWCA 331
Court of Appeal of New South Wales
Beazley P, Emmett & Gleeson JJA
Construction - Ball and Carey retained McInerney to design and develop horse riding and training facilities - drainage problems - Ball and Carey sued - primary judge dismissed claim - found defects did not arise from faulty design or construction, but from failure of maintenance by Ball and Carey - Ball and Carey appealed - claimed maintenance issue had not been pleaded at trial - held: denial of procedural fairness depends on circumstances of each case - ultimate focus is on practical rather than theoretical injustice - issue is unfairness, not whether an expectation has been disappointed - appellants had to show a substantial wrong or miscarriage - maintenance issue had been clearly articulated prior to trial in McInerney's response to Scott Schedule - also raised in McInerney's experts' reports - appellants not taken by surprise - no procedural unfairness - appellants bound by conduct of case at trial where no objection to tender of further evidence - no error shown in findings of primary judge - appeal dismissed.