1 Brushbox Street

BUILDING AND CONSTRUCTION – defective sunshades on façade of residential tower – referral of issues to referee – referee to determine whether builder liable and, if so, what is the proper rectification method – referee finds builder liable in respect of structurally inadequate sunshades – referee faced with competing rectification methods – referee concludes that C Bracket Solution is proper rectification method – whether referee misconstrued contract in finding that C Bracket Solution would achieve conformity with the contract – whether referee’s findings concerning visibility of brackets perverse or based upon a failure to understand evidence – held that referee made no error of principle, and his findings of fact were clearly open to him – not appropriate to exercise discretion to reject or vary the referee’s report – motion dismissed

COSTS – costs of reference – where both parties failed to establish their preferred case

APPEALS – leave to appeal – principles governing – where Applicant sought leave to appeal from a discretionary decision of the primary judge to adopt aspects of a referee’s report – whether matter raises an issue of principle, a question of public importance, or a reasonably clear injustice going beyond something that is merely arguable

APPEALS – Leave to appeal – Arguable case – Whether primary judge erred in making advance finding that expert evidence was inadmissible – Where evidence was submitted to be relevant as responsive to issue of causation by providing an alternative explanation for cause of loss – Where primary judge found such alternative should have been pleaded and thus admitting the evidence would be a breach of procedural fairness – Appeal raises insufficiently arguable case that primary judge erred