The recent case of Harris v Morabito Holdings [2018] NSWSC 912 is just one of an increasing number of construction disputes in which the courts have relied on the reports of a special referee to make a decision. Special referees are an independent third party who are not bound by the usual rules of evidence and can make their own inquiries about the questions they have been assigned.

In this case, a dispute between the developers and their builder revolved around the builder’s defective works, so the special referee decided to inspect the site himself. He came to the conclusion that the builder was required to pay $328,000 to the developers. However the developers were unhappy with this amount and strongly argued against the report being accepted. McDougall J held that the court had the discretion to accept, vary or reject a special referee’s report, and in this case the court found no reason not to accept it.

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