Australia, June 24 -- New South Wales Land and Environment Court issued text of the following judgement on May 23:

1. HER HONOUR: In these proceedings, the plaintiff builder sues the defendant owner for unpaid amounts under a building contract, together with lost profits said to flow from termination of that contract. The defendant owner cross-claims against the builder and the superintendent, alleging that the building works were not performed with reasonable care and skill. The matter has yet to be allocated a hearing date.

2. The builder seeks a ruling under s 192A of the Evidence Act 1995 (NSW), which provides:

192A Advance rulings and findings

Where a question arises in any proceedings, being a question about-

(a) the admissibility or use of evidence proposed to be adduced,

...

the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings.

3. The builder seeks a ruling that the expert report of Timothy Haynes dated 25 October 2024 is not admissible, either as to the whole of the report or as to Appendix 4. The plaintiff also seeks a ruling that parts of the expert report of quantity surveyor David Madden dated 22 November 2024 are inadmissible, being some paragraphs within the body of the report and also Annexure K. Both expert reports were served by the owner.

4. The circumstances in which such a ruling may be made were canvassed in the Owners Strata Plan 90189 v Park View Constructions [2022] NSWSC 1382 at [39]-[48]. In short, it may be considered appropriate to give an advance ruling in circumstances where (at [42]): (citations omitted)

(a) it is apparent that there is a problem with the admissibility of the evidence in question;

(b) it is inevitable that a ruling will need to be made in respect of that evidence, such that the Court's time will not be wasted in doing so;

(c) the material necessary to make a ruling has been or can then be ascertained; and

(d) such a ruling will assist with the efficient conduct of the final hearing, including by giving the party whose evidence is the subject of an adverse advance ruling the opportunity to marshall evidence in proper form, avoiding the need to call witnesses or to require other witnesses for cross-examination, or where there is an objection to the trial judge considering the evidentiary material.

5. I consider that it is appropriate to make such a ruling in this case for, essentially, the reasons advanced by the builder's solicitor, Jessica Rippon.

a) The parties have served their evidence-in-chief.

b) The builder will need to retain three experts to respond to the owner's expert evidence which the builder considers is inadmissible. The likely cost of responding to the owner's expert reports will be some $200,000 as matters presently stand, but will be some $50,000 if the reports are ruled inadmissible, as the builder thinks will be the case.

c) The builder is concerned that if its objections are taken at trial, and succeeds, there is a risk that the trial will be vacated on an application by the owner to fix the resulting problem with its case.

6. Having reviewed the expert reports in question, it is apparent that there is a problem with the admissibility of the expert evidence, in particular, how defective building work has been identified and how that identification is then relied upon by subsequent experts. It is inevitable that a ruling will need to be made in respect of that evidence. The builder has squarely raised its objection in correspondence. The builder clearly intends to take the same objection at trial. The material necessary to make a ruling has been assembled in the Court Book on this application. Such a ruling will assist with the efficient conduct of the trial, including by giving the owner an opportunity to address any problem with the admissibility of its expert evidence before trial.

7. Turning to the objections, it is necessary to give some factual background. In November 2020, the owner retained the builder to perform remedial building work on a heritage building, being the old 'Grace Brothers' building on Broadway. In 2022, the builder sought approval for two variations to the work. The variations were rejected. On 6 July 2022, the builder suspended work.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1970f125c23fcaabbe226e13)

Disclaimer: Curated by HT Syndication.