Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors (No 2)

[2005] NSWCA 1

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Reopening judgment after delivery
3. › Discretion to allow new argument after judgment delivered but before formal orders entered
4. › Whether exceptional circumstances exist
5. › Policy of finality of litigation
6. › Whether argument raised as afterthought without explanation for failure to raise earlier
1. Practice and Procedure
2. › Costs
3. › Costs orders on appeal
4. › Whether party entitled to indemnity costs order based on contractual indemnity not raised in appeal

Quick Take

A party that fails to raise a statutory construction argument during the hearing of an appeal cannot raise it for the first time in submissions on draft orders after judgment has been delivered, where the omission was due to the party's own conduct and no explanation is offered. The policy of finality of litigation precludes treating such an omission as an exceptional circumstance warranting reopening.