711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd

The background to this matter is set forth in my judgment of 1 June 2016 and in the judgment of the Court of Appeal of 1 September 2016 refusing leave to appeal from my decision: 711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 697 at [9]ff and 711 Hogben Pty Ltd v Tadros [2016] NSWCA 244 [3]ff.

On 11 December 2015 Hammerschlag J made this order:

I heard argument on those matters on 18 May 2016 and delivered judgment on 1 June 2016. In that judgment I recited that the matter to be determined "separately" was:

The plaintiff's point on that question was that the expert had misapprehended the nature of the "landlord's works" as defined in the Deed of Agreement for Lease. During argument, Mr Bevan, who appeared for the plaintiff, stated that he was proceeding upon the basis that he was not permitted by the orders of 11 December 2015 to argue that the expert’s alleged misapprehension of the nature of the "landlord's works" also bespoke a "manifest error" on his part for the purposes of cl 14 of the Deed of Agreement for Lease.

Thus, during argument the following exchanges occurred between me and counsel:

I concluded that the expert had not misapprehended the nature of the “landlord's works" and that his determination was an expert determination for the purpose of the Deed of Agreement for Lease.

I went on to say at [50] in the judgment:

My intention in making those remarks was to express the opinion that the expert had made no "manifest error" in relation to his interpretation of the definition of "landlord's works".

Mr Bevan submits today that on 18 May 2016 he did not argue the question of "manifest error" in relation to the question of "landlord's works" (or at all), and stated that the plaintiff wishes to contend that the expert did make manifest errors other than in relation to any other alleged misapprehension of the nature of the "landlord's works".

Mr Bevan submits that a reasonable bystander might conclude that I may have prejudged the question of "manifest error" by reason of my remarks at [50] of my reasons and, thus, by notice of motion filed on 15 August 2016 seeks an order that I recuse myself from further involvement in the matter.

I certainly did not intend by my reasons to express any opinion about "manifest error" otherwise than in relation to the question of "landlord's works". I doubt that any reasonable reader of my reasons would come to a different conclusion.

However, as there are other judges likely to be available, I accept it would be better (to avoid any suggestion of predisposition of mind) if another judge was to deal with the balance of the plaintiff's proceedings.

Having had discussion with Mr Bevan and Mr Hadley today about the sensible course to now be adopted, the conclusion to which I have come is that I should refer the matter to the list judge so that the entirety of the balance of the plaintiff's case can be fixed for hearing as early as is convenient to the Court and to counsel.

Mr Hadley, who appears for the defendants/cross-claimants has told me that it would not be convenient, from the defendants/cross-claimant's point of view, to have the cross-claim fixed for hearing at the moment for two reasons. The first is that the cross-claim is not ready for hearing. The second is that if Mr Hadley's case, as to what the parties call the "cl 14 issue" in the plaintiff's case, fails that may be an impediment to the cross-claim proceeding.

The only order I will make is to refer this matter now to the list judge for allocation of a hearing date and I will note that the hearing will be conducted by a judge in the list other than me.