Australia, July 28 -- New South Wales Land and Environment Court issued text of the following judgement on June 27:

1. HER HONOUR: On 23 May 2025, I heard an application by the plaintiff builder for advance evidentiary rulings under s 192A of the Evidence Act 1995 (NSW): Max Build Pty Ltd v The Owners - Strata Plan No 54026 [2025] NSWSC 533. I made rulings in respect of various expert reports.

2. Two reports prepared by quantity surveyor, Robert Madden, remained for consideration. While each report was entitled "Defect Inspection Report", there was no evidence that Mr Madden had expertise in identifying building defects. The defendant owner made plain that they relied on Mr Madden as a witness of fact only. I posited whether the reports would be admissible as business records under s 69 of the Evidence Act 1995 (NSW), but there was insufficient evidence before the Court to take that possibility any further. At the conclusion of the hearing, I made directions for the parties to file affidavits and submissions on this issue, and the costs of the plaintiff's motion, with both matters to be determined on the papers. This judgment concerns those remaining matters.

3. The owner read the affidavits of Mr Madden dated 28 October 2024, 9 April 2025 and 6 June 2025 and tendered the exhibits to the first and last of these affidavits (which are marked Exhibit RM-1 and Exhibit RM-2 respectively). The owner also provided submissions and "supplementary" submissions.

4. The builder provided proposed redactions for the Defect Inspection Reports, highlighting text said to record opinions or 'second-hand' hearsay evidence. The builder also provided written submissions.

Facts

5. The builder suspended work on 6 July 2022. The owner's architect engaged Mr Madden to conduct a peer review of the administration of the building contract by the superintendent and to review the builder's progress claim to ensure that the builder was not overpaid, including having regard to any defects or incomplete works. At the time, the architect was trying to mediate the issues which had arisen between the builder and the owner so that building works could resume.

6. On 29 August 2022, Mr Madden inspected the building site "to identify any items of visibly defective, incomplete or non-compliant work". He did a walkthrough of the building and took photographs. Mr Madden then reviewed the builder's progress claim No 20 and a claim for delay costs. In that context, Mr Madden asked the architect whether the owner "can provide evidence of loss in regard to the wrongful suspension of the works [as the] client [is] entitled to damages due to breach of contract". It does not appear that any evidence of loss was provided.

7. On 5 September 2022, Mr Madden issued his first report and attached photographic report. The builder has proposed that certain portions of the report, together with text accompanying the photographs, be redacted as stating Mr Madden's opinions. Other portions appear to contain hearsay from tenants of the apartments inspected by Mr Madden. Having reviewed the redactions, I agree that the highlighted text records either an opinion or 'second-hand' hearsay, save for the following text in the photographic report:

a) On page 1, "Protective plastic not fixed";

b) On page 2, "Protective sheeting loose", twice appearing, for apartments 1055 and 1065.

I consider this text records Mr Madden's visual observations and does not include expressions of opinion.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197b008e6c8a928a4a4efbd7)

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