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Ballard v Brookfield Multiplex Ltd

Ballard v Brookfield Multiplex Ltd

Case [2010] NSWSC 1460 21 December 2010

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CITATION: Ballard v Brookfield Multiplex Ltd [2010] NSWSC 1460

HEARING DATE(S): 16 - 19 November 2010

JUDGMENT DATE :
21 December 2010

JUDGMENT OF: Smart AJ

DECISION: Report of 23 December 1996 of Mr Ian McIntyre of EPM not admitted as to previous representations - see section 135 of Evidence Act 1995.

CATCHWORDS: VOIR DIRE - inability of defendants to cross examine adequately due to 14 year lapse of time and lack of recollection - McIntyre reliant for facts on B Young, co-director of Stoneglow Pty Ltd (not being called) and P Hammond (similarly affected by lapse of time and lack of recollection) - admission of report of 23 December 1996 containing previous representations unfairly prejudicial - non-compliance with UCPR 31.17 - 29 - provisions apply to any expert report, in substance, sought to be relied on - not appropriate to otherwise order under UCPR 31.23(3) or to give leave under UCPR 31.28(3) where s 135 applied to report and previous representations

LEGISLATION CITED: Evidence Act 1995
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Agricultural and Rural Finance Ltd v Atkinson [2010] NSWSC 635
ASIC v Rich [2005] 53 ACSR 752
Hansen Beverage Co v Bickfords Australia Pty Ltd [2008] FCA 406
Investmentsource v Knox Street Apartments [2007] NSWSC 1128
Makita v Sprowles (2001) 52 NSWLR 705
Re Enviro Energy Australia Pty Ltd (in liq) [2010] NSWSC 1217
Ringrow Pty Ltd v BP Australia Ltd (2003) 130 FCR 569
Roach v Page (No 15) [2003] NSWSC 939
Shoshana Pty Ltd v 10th Cantanae Pty Ltd (1987) 18 FCR 285
State of NSW v Mannall [2005] NSWCA 367
Supetina Pty Ltd v Lombok Pty Ltd (1984) 5 FCR 439
Waterwell Shipping Inc v HIH Casualty and General Insurance Ltd, unreported, Supreme Court, NSW, Giles CJ Com D, 8 September 1997

TEXTS CITED: Odgers Uniform Evidence Law 9th Edition

PARTIES: David Ballard (Plaintiff)
Brookfield Multiplex Limited (First Defendant)
Multiplex Corporate Agency Pty Ltd (Second Defendant)
Construction Forestry Mining and Energy Union (Third Defendant)
Construction Forestry Mining and Energy Union, NSW Branch (Fourth Defendant)
Andrew Ferguson (Fifth Defendant)

FILE NUMBER(S): SC 2007/266587

COUNSEL: AJ Bannon SC, J Duncan and E Elbourne (Plaintiff)
AS Bell SC and I Pike (First & Second Defendants)
BC Oslington QC and J Pearce (Third, Fourth & Fifth Defendants)

SOLICITORS: Sagacious Legal (Plaintiff)
Clayton Utz (First & Second Defendants)
Taylor & Scott (Third, Fourth & Fifth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Smart AJ

Tuesday 21 December 2010

2007/266587 David Ballard v Brookfield Multiplex Limited & Ors

JUDGMENT – Voir Dire

1 HIS HONOUR: A number of arguments arose as to the admissibility of evidence sought to be led by the plaintiff. They concerned primarily the admissibility of the report of Mr Ian McIntyre, a civil engineer, who has worked in the construction industry since 1979 and was at all relevant times a principal of Evans and Peck Management (“EPM”). He has had extensive experience in valuing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ballard v Brookfield Multiplex Ltd

Details

AGLC: Ballard v Brookfield Multiplex Ltd [2010] NSWSC 1460
Case: [2010] NSWSC 1460
Decision Date: 21 December 2010

CaseChat Overview and Summary

The case of Ballard v Brookfield Multiplex Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Ballard, sought to hold Brookfield Multiplex Ltd accountable for damages arising from the construction of a commercial building. The dispute centred on the quality and safety of the building, with Ballard alleging that the construction was defective and unsafe. The court was tasked with determining whether the defendants had a viable defence based on the unavailability of key witnesses and the admissibility of certain expert reports.

The primary legal issues revolved around the ability of the defendants to adequately cross-examine witnesses due to a 14-year time lapse and the associated loss of recollection. This issue was complicated by the fact that McIntyre, one of the defendants, relied on information from B Young, co-director of Stoneglow Pty Ltd, who was not called to testify. Additionally, P Hammond, another key witness, was similarly affected by the time lapse and lack of recollection. Furthermore, the court had to address the unfairness of admitting a report from December 1996, which contained previous representations that could not be cross-examined due to the witnesses' impaired recollection. The report also failed to comply with the relevant provisions of the Uniform Civil Procedure Rules (UCPR).

The court held that the defendants' inability to cross-examine witnesses due to the significant time lapse and loss of recollection rendered their defence ineffective. This was compounded by the unfairness of admitting the 1996 report which contained previous representations that could not be challenged. The court concluded that the provisions of the UCPR regarding expert reports applied to this situation and that it was not appropriate to order the report under UCPR 31.23(3) or to give leave under UCPR 31.28(3) where section 135 applied. Consequently, the court ruled in favour of the plaintiff, Ballard. The final orders were made in favour of the plaintiff, with the defendants being held liable for the damages claimed.

Orders