Barnden v Tadrosse (No.2)

In *Barnden v Tadrosse (No.2)*, the Supreme Court of New South Wales was asked to determine whether a party who had been successful in a claim for damages for breach of contract was entitled to recover the costs of an expert witness report that had been obtained for the purposes of the litigation. The defendant, Mr Tadrosse, had been found liable for breach of contract, and the plaintiff, Mr Barnden, sought to recover the costs associated with an expert report prepared by a quantity surveyor.

The central legal issue before the Court was whether the expert witness report was reasonably necessary for the conduct of the proceedings, and therefore recoverable as a cost. This involved an assessment of the nature of the dispute, the complexity of the issues requiring expert opinion, and whether the report was obtained in good faith and for a proper purpose. The Court had to consider the principles governing the recovery of expert witness costs, particularly in circumstances where the expert's evidence might have been helpful but not strictly essential to establishing liability.

Judge Altobelli reasoned that the recoverability of expert witness costs is not automatic and depends on a careful consideration of necessity and reasonableness. His Honour noted that while the expert report provided valuable information and assisted in quantifying the damages, it was not indispensable to proving the breach of contract itself. The Court applied the principles established in cases concerning the recovery of costs, emphasizing that costs are generally awarded to indemnify a successful party for expenses reasonably incurred. In this instance, while the report was useful, it was not deemed to be so essential that its cost was a necessary expense for the successful prosecution of the claim.

Consequently, the Court ordered that the costs of the expert witness report were not to be allowed on the party and party basis, meaning Mr Barnden would not recover those specific costs from Mr Tadrosse.