Chemtieh v Atieler Hazzouri Architects Pty Ltd ACN 095725072 and CDC Certifiers Pty Ltd ACN 609740285

[2025] NSWDC 2

District Court

New South Wales

Medium Neutral Citation:

Chemtieh v Atieler Hazzouri Architects Pty Ltd ACN 095725072 and CDC Certifiers Pty Ltd ACN 609740285 [2025] NSWDC 2

Hearing dates:

17 December 2024

Date of orders:

06 February 2025

Decision date:

06 February 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1)   The plaintiff’s motion filed on 5 July 2024 is dismissed.

Catchwords:

CIVIL PROCEDURE — Originating process — Amendment – application for amendment 16 months after filing – adequacy of explanation – detriment to defendants – application to set aside a guillotine order – explanation and timeliness of efforts

Legislation Cited:

Australian Consumer Law

Civil Procedure Act 2005 (NSW)

Sale of Goods Act 1923 (NSW)

Uniform Civil Procedural Rules 2005

Cases Cited:

Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266

Brooks Robinson Pty Limited v Rothfield [1951] VLR 405

Irfan v Western Sydney Local Health District [2023] NSWSC 845

Les & Zelda Investments Pty Limited v Whitehaven Coal Limited [2024] NSWSC 1037

Soma-Devan v Scentre Shopping Management Pty Ltd t/as Westfield Hurstville No 2 [2024] NSWSC 95

The Owners - Strata Plan No. 94784 v Mirvac Projects Pty Ltd [2024] NSWSC 741

Toby Constructions Products Pty Limited v Computa Bar (Sales) Pty Limited [1983] 2 NSWLR 48

Category:

Procedural rulings

Parties:

Karim Abdallah Chemtieh (Plaintiff)
Atieler Hazzouri Architects Pty Ltd ACN 095725072 (First Defendant)
CDC Private Certifiers Pty Ltd ACN 609740285 (Second Defendant)

Representation:

Counsel:
D Hawkins (Plaintiff)
A Berriman (Defendants)

Solicitors:
Slattery Thompson (Plaintiff)
Carter Newell (First Defendant)
Wotton + Kearney (Second Defendant)

File Number(s):

2023/00242408

Publication restriction:

Nil

JUDGMENT

1. The plaintiff commenced this action by filing a Statement of Claim on 28 July 2023.

2. By Notice of Motion filed on 5 July 2024 and amended orally at the hearing on 17 December 2024, the plaintiff seeks:

(1) Leave to amend his Statement of Claim pursuant to s 64 of the Civil Procedure Act 2005 in the form set out in the draft Amended Statement of Claim produced to the Court on 17 December 2024.

(2)   Leave to set aside the guillotine orders concerning the service of evidence previously made by the Judicial Registrar on 19 April and replaced with a new timetable allowing for the service of further expert reports as to both liability and quantum.

(3)   The plaintiff to pay the defendant’s costs of and incidental to this Notice of Motion in relation to orders 1 and 2.

(4)   Such further orders as the Court sees fit.

3. The plaintiff’s application was heard on 17 December 2024.

Procedural history

4. Following the commencement of the action on 28 July 2023, procedural orders were made on seven occasions.

5. Each of the defendants filed a Defence in December 2023.

6. On 16 April 2024, the Court was informed that the plaintiff had not complied with the order of 29 September 2023 directing him to serve all expert evidence upon which he intended to rely by 29 December 2023. The Court was further informed that the plaintiff had failed to comply with the orders of 20 October 2023, directing the plaintiff to serve all expert evidence by 1 March 2024.

7. On 19 April 2024, the following orders were made by the Judicial Registrar and issued to the parties:

(1)   The plaintiff is to serve any lay or expert evidence upon which he intends to rely by 13 May 2024.

(2)   The plaintiff may not rely on any expert evidence not served by 13 May 2024, without further order of the Court.

(3)   The first and second defendants are to serve any lay and expert evidence by 12 July 2024.

(4)   The plaintiff is to serve any reply evidence by 26 July 2024.

8. On 27 June 2024, the following further orders were made by the Judicial Registrar and issued to the parties:

(1)By 5 July 2024, the defendants are to file and serve any motion (including supporting affidavit) in relation to the Telstra Subpoena that is returnable 19 July 2024.

(2)   By 5 July 2024, the plaintiff is to file and serve any motion (including any supporting affidavit) seeking leave:

(a)   to rely on the report of Mr Dowse, served after the guillotine order elapsed; and

(b) to amend the Statement of Claim pursuant to the Civil Procedure Act s 64 attached to the affidavit of Mr Peter Livers;

that is returnable 19 July 2024.

9. A further order was made on 18 July 2024 for the filing and serving by the defendants of affidavits in relation to the Notice of Motion.

10. The plaintiff’s Notice of Motion was listed for hearing on 29 August 2024 before Judge Neilson.

11. In the course of the hearing, Judge Neilson noted that the plaintiff would need to make another attempt at amending the Statement of Claim (with the intention that the further draft be substituted for the draft annexed to the affidavit of Mr Livers). Among other orders, Judge Neilson made the following order:

3. Plaintiff to prepare and serve upon each Defendant a proposed Amended Statement of Claim complying with UCPR 19.5, correcting all spelling and grammatical errors and, as discussed in court today, omitting the currently proposed clause 13B and pleading in full the allegations made against the Second Defendant which are intended to mirror the allegations against the First Defendant, deleting the chapeau to the currently proposed clause 26 and pleading matters correctly, deleting currently proposed clauses 28 and 29 and properly pleading against each Defendant correctly and separately, and correctly pleading losses claimed, but not to include the stamp duty for the purchase of the Plaintiff’s current abode but stamp duty paid by the Plaintiff for the premises known as [address of premises].

12. On 14 October 2024, the plaintiff filed (without leave) and served a third version of its Amended Statement of Claim (“the third draft”).

13. The third draft was not marked up in accordance with the Uniform Civil Procedural Rules 2005 (“UCPR”) rule 19.5(2). The third draft did not address all of the issues set out in the order of 29 August 2024.

14. The matter came before Judge Gibson on 15 October 2024. Judge Gibson noted that leave had not been granted for the filing of an Amended Statement of Claim, and made the following orders:

(1)   Plaintiff’s application to amend the statement of claim is listed for hearing on 18 November 2024 (2 hours plus).

(2)   Plaintiff is to circulate a copy of the proposed amended statement of claim with all amendments underlined together with any additional submissions by 22 October 2024.

(3)   Any reply submissions by 12 November 2024.

(4)   Costs of today reserved.

15. The hearing of the Notice of Motion was listed on 18 November but was unable to proceed due to the unexpected unavailability of counsel for the plaintiff.

16. The hearing eventually proceeded on 17 December 2024.

17. At the hearing on 17 December 2024, a further draft Amended Statement of Claim (“the fourth draft”) was produced to the Court. The fourth draft had been served upon the defendants in the evening of 16 December 2024.

18. At some stage in 2024, a mediation was conducted, but settlement was not reached.

The application to amend the Statement of Claim

The plaintiff’s argument

19. At the hearing, the plaintiff amended his application so that it sought to amend the Statement of Claim in accordance with the fourth draft. Ms Hawkins, counsel for the plaintiff, relied upon written submissions dated 28 August 2024, which were handed up during the hearing. The written submissions relate to the third draft.

20. The plaintiff read and relied upon the affidavit of Mr Livers of 4 July 2024.

21. It was argued that the errors in spelling and incorrect address in the Statement of Claim were inadvertent drafting errors, and not intended to deceive.

22. It was argued that the amendments should not cause any “real inconvenience or prejudice to the Defendants’ lawyers”. The issue, of course, is whether the amendments prejudice the defendants. Ms Hawkins’ attention was drawn to the expenditure of the defendants on costs to date. Mr Berriman, counsel for the defendants, said that the defendants had incurred combined costs of approximately $100,000 to date in defending the matter. Ms Hawkins conceded that costs would have been incurred to date, but said that there was no other prejudice.

23. The plaintiff argued that the Court had power to give the plaintiff leave to amend the Statement of Claim under s 62 of the Civil Procedure Act 2005 (NSW).

24. The plaintiff argued that the fourth draft seeks (paragraph 7, written submissions):

to further particularise the plaintiff’s claim, to narrow the issues for the Court, expanding the claim to cover the same conduct and facts but broadening the claims. The defendants need to know the case to answer in a broad manner, no hearing has been set down, and if there is prejudice, it can be ameliorated by a costs order in favour of the defendants. The ASOC more succinctly defines the Plaintiff’s case against the defendants and will assist in saving court time.

25. The plaintiff’s written submissions listed twelve ways in which the third draft was said to achieve these objectives. I have considered them in the context of the fourth draft.

26. As to the extent of the delay and the explanation for the delay, the written submissions said:

i.   The extent of the delay between the initial pleadings and the Amended SOC being provided to the defendants is not as lengthy a process as the circumstances produced, where the initial pleadings done by a previous retired counsel were served on 4 August 2023 and the ASOC was served on 28 June 2024.

ii   There has been a high level of difficulty in obtaining documents, such as records of what occurred back in 2019 prior to Covid-19, and as a result of the 2nd defendants being given a fine by the Council for his part in the granting of a CDC where there was no evidence of a home on the land, although the 2^nd defendant had stated otherwise.

27. It was submitted that the plaintiff had “only a rudimentary understanding of English”. Ms Hawkins acknowledged, however, that the plaintiff had sworn an affidavit verifying the Statement of Claim on 25 July 2023 without the use of an interpreter. In his affidavit, Mr Livers says that the plaintiff “does not respond in a timely fashion and has a rudimentary education and knowledge of English”. There is no evidence from the plaintiff himself. The events the subject of the proceedings occurred in 2019 and 2020. Ms Hawkins said that the plaintiff sold the subject property in about December 2020.

28. Ms Hawkins submitted that there had been a change of counsel for the plaintiff, which had contributed to the delay.

29. Mr Livers, in his affidavit, said “I acknowledge that I have not been as diligent as I should have been…”.

30. The fourth draft mentions the Australian Consumer Law, which is not mentioned in the Statement of Claim (but may, arguably, be alluded to in the Statement of Claim). The fourth draft introduces a claim under the Sale of Goods Act 1923 (NSW) (“the Sale of Goods Act”) for the first time. In her written submissions, Ms Hawkins described the amendments regarding the Australian Consumer Law as “not substantial”.

31. It was submitted in the plaintiff’s case that confidence in the judicial system would not be undermined “where delay has occurred due to a lack of understanding, English language, difficulties in obtaining evidence, a change in counsel and the personal life of the plaintiff disintegrating.”

32. The plaintiff relied upon Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (“Aon”).

33. In Aon, Gummow, Hayne, Crennan, Kiefel and Bell JJ said, at [102] and [111]-[113]:

102.   The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.

103.   The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.

…

111.   An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in J L Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

112.   A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

113.   In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

Aon dealt with the rules of the Supreme Court of the Australian Capital Territory. In Aon, at [90], rule 21 of those rules was equated with ss 56-58 of the Civil Procedure Act 2005 (NSW).

34. It was submitted that the defendants would not suffer any detriment beyond having expended costs.

The defendants’ argument

35. The defendants provided three sets of written submissions; the first filed on 28 August 2024 (“the August submissions”), the second filed on 12 November 2024 (“the November submissions”) after receipt by Mr Berriman of the third draft and the third prepared after receipt of the fourth draft on 16 December 2024 and handed up at the hearing on 17 December 2024 (“the December submissions”).

36. In the August submissions, the principles relevant to the application to amend the Statement of Claim are set out at paragraph 18:

18. The principles relating to the amendment of pleadings are well known. Leave is required pursuant to section 64(1)(b) of the Civil Procedure Act 2005 (NSW) (CPA), such amendments to be made to determine the real issues in the proceeding: section 64(2) of the CPA. Such decisions are to be made in accordance with the dictates of justice: section 58(1) of the CPA and the factors in section 58(2). Those factors are to be weighed in light of (a) the nature and importance of the amendments sought; (b) the extent of delay and the explanation for it; (c) the prejudice flowing from the amendment; (d) the parties’ choices to date; and (e) the effect on the civil justice system – on other participants; the use of public resources; and the potential loss of confidence that arises from applications acceded to without proper explanation: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 75; [2009] HCA 27 (Aon).

37. The defendants pointed out that more than sixteen months had elapsed between the filing of the Statement of Claim and the service of the fourth draft.

38. The defendants said that Mr Livers’ affidavit did not explain the delay between the filing of the Statement of Claim and the service of any of the draft amendments. The defendants said, in the August submissions, “It is unclear what has prompted the amendments, and correspondingly why they should be allowed”. It was said that, in the absence of an explanation, there could be no exercise of weighing the explanation against the effects of delay and the objectives of the Rules, as required by Aon. In those circumstances, there could be no amendment.

39. It was argued that the fourth draft is defective to the point where it cannot be filed. This argument is set out in the December submissions. The argument is put in two parts: firstly, formal matters, and secondly, substantive matters. I will set out the argument as it was put in the December submissions:

Formal matters

…

10.   …the Fourth PASOC appears to insert new matter without the appropriate underlining to indicate that it is in fact new, contrary to the requirements of r 19.5(2) of the Uniform Civil Procedure Rules 2005 (NSW). In particular:

a. Paragraphs 26 to 36 of the Fourth PASOC appear to be new. Paragraph 26 as it appears in the Fourth PASOC is entirely different to the paragraph 26 that appears in the Statement of Claim.

b. Paragraph 27 of the Statement of Claim appears to have been either deleted in its entirety or moved to paragraph 41 without the appropriate interlineation.

c. The words 'Plaintiff' and 'Defendant' are not capitalised in the Statement of Claim but are capitalised in the Fourth PASOC. While not fatal, it raises a concern that there are other amendments not appropriately marked out in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

d. Finally, Fourth PASOC does not build upon the First or Second PASOC. For example, paragraph 26 that appears in the Second PASOC does not appear in the Fourth PASOC; and the Fourth PASOC restores paragraphs 31 to 45 whereas these had been deleted from previous versions.

11. The following sections address more substantive points by reference to the headings used in the Fourth PASOC.

Narrative

12. Paragraphs 1 to 18 narrate certain events. Objection is taken to those paragraphs for the following reasons.

13. First, paragraphs 1 c and 1 d are conclusory. Each asserts that an individual is liable for the conduct of a third person; and that the conduct of those third parties was negligent without specifying the acts, the omissions or the bases on which those acts are said to be negligent.

14. Second, the particulars to paragraphs 7 and 13 do not support the pleaded implied term. In particular, particulars 7c., 7d., 18c., 18d., are elements of a duty of care in negligence and have no work to do in the context of implication of terms. Further, particulars 18f., 18g., and 18h are irrelevant to the implication of terms.

15. Third, paragraph 12 pleads that the First Defendant engages the Second Defendant on behalf of the Plaintiff. To the extent that an agency relationship is intended to be pleaded as between the Plaintiff and the First Defendant, it is incompletely pleaded.

16. Fourth, paragraph 13 does not specify whether the term is implied by law or implied in fact. The reader may infer that the term pleaded in paragraph 13 is implied in fact by contrasting the text of paragraph 13 with the text of paragraph 7 and its particulars. The corollary of that analysis is that paragraph 13 is inadequate, because it fails to plead the satisfaction of the criteria for the implication of terms as articulated in BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266, namely that a) the term must be capable of clear expression; b)not inconsistent with any express term of the parties' agreement; c) necessary to give business efficacy to the contract; d) be fair and equitable ; and e) so obvious that it goes without saying. None of these criteria are addressed, let alone satisfied.

The Australian consumer law claim

17. To the extent that paragraphs 19 to 25 rely upon the report of Mr Jake Dowse dated 10 May 2024, those paragraphs impermissibly rely upon evidence served in defiance of a guillotine order made on 19 April 2024 by Judicial Registrar Howard. As the Plaintiff has not substantiated any application to lift that guillotine order by reference to the applicable authorities, the Plaintiff should not be permitted to circumvent it by particularising the report in the Fourth PASOC.

Breach of s 19 of the Sale of Goods Act 1923 (NSW)

18. Paragraphs 26 to 35 should be regarded as embarrassing for three reasons:

a. First, the claim for a breach of s 19 of the Sale of Goods Act 1923 (NSW) suffers from several conceptual difficulties.

b. Second, the claim impermissibly rolls up the claims against the First and the Second Defendants.

c. Third, the paragraphs do not plead a complete cause of action as against either Defendant.

19. First, the Sale of Goods Act 1923 (NSW) applies to agreements for the transfer of property in goods from the seller to the buyer for monetary consideration (s 6(1)). The Act defines 'goods' as including chattels personal other than things in action and money (s 5(1)). A contract, the substance of which is the execution of work or the application of skill is not a contract to which the Act applies: Brooks Robinson Ply Limited v Rothfield [1951] VLR 405; affirmed Toby Constructions Products Ply Limited v Computa Bar (Sales) Ply Limited [1983] 2 NSWLR 48.

20. On the terms of the Fourth PASOC, the Plaintiff retained the First Defendant to provide architectural services ([6]) and, inferentially, retained the Second Defendant to provide certification services ([13]). So much is apparently acknowledged in paragraph 27 of the Fourth PASOC. On the authorities referred to in paragraph 19 above, the Sale of Goods Act 1923 (NSW) applies to neither defendant, because neither has entered into a contract for the sale of goods as defined by sections 5 and 6 of the Act.

21. A further conceptual difficulty arises from paragraph 33, which alleges that s19(2) of the Act applies in respect of the Complying Development Certificate. Inferentially, this is a claim against the Second Defendant exclusively. Section 19(2) of the Act relates to sales of goods by description. The characterisation of the relevant contract as a sale by description should be expressly pleaded; it is not; and the claim is therefore incomplete.

22. Paragraphs 28 and 29 impermissibly elide the distinction between the First Defendant and the Second Defendant. That arises because a) paragraph 28 fails to distinguish between the works of each defendant; and b) paragraph 29 refers to 'the Agreement', presumably being a reference to the contractual relationship that is alleged to exist as between the Plaintiff and each of the Defendants separately; or perhaps referring to an agreement to which all three were a party. The Defendants should not be left to guess.

23. Returning to point a) made in paragraph 22 above, the Fourth PASOC does not plead a complete cause of action as against either Defendant as it does not specify the relevant defect in the services provided to support a finding of a breach of either the conditions implied by s 19(1) or s 19(2) of the Act. More specifically:

a. paragraph 28 refers to the "advice, architectural plans, information" presumably being the services provided by the First Defendant. However, no defect is pleaded sufficient to establish a breach of the statutory conditions.

b. paragraph 30 pleads that the Complying Development Certificate is not fit for the "Intended Purpose" a term left undefined. None of the particulars assist to understand the "Intended Purpose". The particularisation of paragraphs 7 to 9 is especially unhelpful as they plead allegations against the First Defendant only.

c. paragraph 34 of the Fourth PASOC fails to specify the particular "matters" (that being the term used) that comprise the First Defendant's breach of either or both of the implied conditions.

A claim in negligence

24. Paragraph 39 to 41 plead a rolled-up claim in negligence against the First and Second Defendants. Shortly put those paragraphs are embarrassing because they are conclusory; and conflate the cases as against each of the Defendants. For completeness, paragraph 40 suffers from the further defect that it makes unparticularised allegations of actual and constructive knowledge against each Defendant.

Consideration

40. The Civil Procedure Act 2005 provides, in s 64:

64   Amendment of documents generally

(1)  At any stage of proceedings, the court may order—

(a)  that any document in the proceedings be amended, or

(b)  that leave be granted to a party to amend any document in the proceedings.

(2)  Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3)  An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4)  If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5)  This section does not apply to the amendment of a judgment, order or certificate.

41. Rule 19.1 of the UCPR applies:

19.1   Amending a statement of claim

(1)  A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial.

(2)  If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence, the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim.

(3)  A plaintiff’s right to make an amendment under subrule (1) is not affected by any amendment the plaintiff has made under rule 7.22.

42. Rule 1.12 of the UCPR also applies:

1.12   Extension and abridgment of time

(1)  Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2)  The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.

The extent of the delay and the explanation for it

43. I reject the plaintiff’s argument that the defendants will suffer no detriment if the draft amended Statement of Claim is permitted and therefore no explanation is required for the delay in applying to amend the Statement of Claim. The defendants have spent the last 16 months addressing the proceedings, including filing defences and attending a mediation and numerous directions hearings. Fees in the vicinity of $100,000 have been incurred by the defendants, taken together. The fourth draft would introduce one completely new cause of action under the Sale of Goods Act 1923 and one arguably new cause of action under the Australian Consumer Law (“ACL”). Numerous other changes are proposed. From the defendants’ point of view, it would be almost as if they were confronting a new action. The defendants will suffer a detriment, in that much of the work which has already been done, with attendant expense, will have to be done again, so an explanation is required from the plaintiff. An order that the plaintiff pay the defendants’ costs of and incidental to the Notice of Motion would not adequately address the detriment.

44. The explanation offered, in summary, is that the plaintiff is not fluent in English, that he has sometimes been difficult to contact and that documents have been difficult to obtain. As I have said, language difficulties can easily be overcome with the use of an interpreter. They need not result in delay. On the very limited information before me, it is clear that the efforts to obtain documents have been inadequate and the use of subpoenas and notices to produce was not embarked upon in a timely way. As I have said, the events the subject of the proceedings occurred in 2019 and 2020. No adequate explanation for the delay has been forthcoming.

45. I take into account that the matter has not yet been listed for trial.

The nature and importance of the amendments sought

46. The form of the fourth draft is problematic, for the reasons set out in the December submissions of the defendants, set out above. Whilst the fourth draft is not properly annotated with reference to the filed Statement of Claim, neither is it referable entirely to either the second or the third draft. It is difficult to compare the filed Statement of Claim to the fourth draft to ascertain, for example, what is new, what has been abandoned and what is retained but repleaded in different terms.

47. The criticisms of paragraphs 1 to 18 in the defendants’ December submissions, set out above at [39], all have considerable force. There is real confusion in the fourth draft as to whether the plaintiff is suing in negligence or for breach of contract. Allegations are made without particulars or an asserted basis.

48. As to the claim under s 18 of the ACL in the fourth draft, it is not possible to ascertain with any precision what conduct of the second defendant is relied upon which is relevant to that section. Again, concepts relevant to a tortious claim and concepts relevant to a claim in breach of contract have been mixed in with the claim under the ACL.

49. As to the claim under the Sale of Goods Act 1923 (NSW), the criticisms of the defendants in the December submissions are apt (see [39] above).

50. On its face, the fourth draft conflates the first and second defendant in its Sale of Goods claim, without clearly making sufficiently particularised allegations against either of them. The fourth draft also seems to include the provision of services in the claim. The meaning of much of the text in the fourth draft is unclear and can only be guessed at. The allegations are not clearly pleaded or particularised.

51. All of the criticisms of the fourth draft in the defendants’ December submissions are valid.

52. The defects in the fourth draft are such that the filing of the fourth draft cannot be permitted. It does not convey with sufficient clarity, basis or particularity the allegations against each of the defendants which constitute causes of action. It would not be possible to draft a coherent defence to the fourth draft which engages with the issues. Contrary to the submissions of the plaintiff, amendments to the Statement of Claim as set out in the fourth draft would not streamline the proceedings or add clarity.

53. This is fatal to the application to amend the Statement of Claim in the terms of the fourth draft.

The effect on the civil justice system

54. The Civil Procedure Act 2005, in s 56 says that the overriding purpose of that Act and the UCPR is “to facilitate the just, quick and cheap resolution of the real issues in the proceedings”. In s 57, the Act says:

57   Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a)  the just determination of the proceedings,

(b)  the efficient disposal of the business of the court,

(c)  the efficient use of available judicial and administrative resources,

(d)  the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2)  This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

55. It would not be consistent with ss 56 and 57 of the Civil Procedure Act 2005 to permit the fourth draft to be filed. I note that all previous drafts suffered from similar defects.

The Application to allow the service of further expert reports as to liability and quantum

The plaintiff’s argument

56. The plaintiff has served the defendants with a report of Mr Dowse (referred to by Ms Hawkins as Mr Prowse). The report is not before me, but I understand that it anticipates the future preparation of a further report by Mr Dowse. The plaintiff seeks to have the orders of 19 April 2024 set aside and permission given to the plaintiff to file the existing report of Mr Dowse. The plaintiff further seeks a timetable to be set, allowing further time for a further report of Mr Dowse to be prepared and served, and for a report of an accountant with respect to quantum to be prepared and served, and to give the defendant time to produce and serve reports in response.

57. The plaintiff concedes that an expert report which has not been served in accordance with rule 31.28 is not admissible unless there are exceptional circumstances that warrant the granting of the leave. The plaintiff argued, however, that rule 31.28 is not applicable to an application for the setting aside of a guillotine order to give further time for the service of an expert report.

58. The plaintiff’s submissions referred to recent consideration of this issue by Dhanji J in Soma-Devan v Scentre Shopping Management Pty Ltd t/as Westfield Hurstville No 2 [2024] NSWSC 95 (Soma-Devan) which cited Irfan v Western Sydney Local Health District [2023] NSWSC 845 (“Irfan”), in which Harrison J, at [23], said:

23.   In Addison v BHP Billiton Iron Ore Pty Limited [2019] NSWSC 1433, Cavanagh J concluded that UCPR 31.28 is not applicable in circumstances similar to the present (albeit in that case where no hearing date had been fixed). His Honour held that on proper construction, UCPR 31.28 goes to the admissibility of expert evidence, which is ultimately a matter for the trial judge. His Honour observed at [23]-[29]:

(a)   the purpose of UCPR 31.28 is to ensure that each party is aware of the relevant expert reports that will be relied on by the other party well before the hearing.

(b)   UCPR 31.28(4) applies to an application for leave under UCPR 31.28(3), which concerns admissibility of reports not served in accordance with UCPR 31.28. UCPR 31.28(4) does not concern applications for leave to serve a report contrary to the orders of the Court, nor to applications for an extension of time to serve a report late but before the hearing.

(c)   consequently, his Honour did not need to consider whether or not there were “exceptional circumstances” relating to late service of the report.

24.   Cavanagh J’s construction of UCPR 31.28 was adopted by Lonergan J in Dickson v State of NSW [2021] NSWSC 234 at [29]-[31]. Her Honour agreed with the acknowledgment by defendant’s counsel that the Court has discretion to extend time for compliance with the rules under UCPR 1.12, and her Honour went on to state:

In any event, to the extent that I needed to conclude that there were special circumstances, in my view the special circumstances are first that the matter is still in the case management phase, the breach and causation aspects have some complexity to them and the reports obtained include relevant information that would assist the court in understanding the issues and practicalities relevant to duty and breach and so those reports should be allowed to be deployed by the plaintiff in the proceedings.

59. Ms Hawkins argued that r 31.28(4) “is not engaged”.

The defendants’ argument

60. The defendants said the following in their August submissions:

19. Rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) addresses the service of expert evidence, relevantly:

“(3) Except by leave of the court, or by consent of the parties—

(a) an expert’s report or hospital report is not admissible unless it has been served in accordance with this rule [. . .]

(4) Leave is not to be given as referred to in subrule (3) unless the court is satisfied—

(a) that there are exceptional circumstances that warrant the granting of leave, or

(b) that the report concerned merely updates an earlier version of a report that has been served in accordance with subrule (1).”

20.   Exceptional circumstances are those which are “unusual, special or uncommon”; they are not exceptional where there is a late retainer of an expert and the report is served late: Les & Zelda Investments Pty Limited v Whitehaven Coal Pty Limited [2024] NSWSC 1037 at [48] (Whitehaven). Leave pursuant to UCPR 31.28 remains discretionary and should be exercised with regard to the requirements of sections 56 – 58 inclusive of the Civil Procedure Act 2005 (NSW).

21.    The principles in relation to an application to set aside a guillotine order were most recently set out in The Owners v Strata Plan No. 94784 v Mirvac Projects Pty Ltd [2024] NSWSC 741 (Mirvac). In Mirvac, the plaintiff consented to a guillotine order in respect of further expert liability evidence to be served by 1 March 2024. In breach of that order the plaintiff sought to serve further expert reports going to the issue of liability. Each of the experts that were engaged to provide a further report were engaged in the closing days of February 2024: Mirvac, [10]. The solicitor for the plaintiff sought to explain the delay on the basis that they arose because of:

“…the issues in the proceedings; the number of experts; the time taken to instruct experts and to arrange and co-ordinate the inspection of the Property including 190 units and common property; the availability of experts; my own competing commitments.”

22.    Justice Stevenson rejected the explanation above as sufficient to justify dissolving or varying the guillotine order. Any such explanation must be adequate, comprehensive and candid: Mirvac, [14]. Further, even an adequate explanation may not be enough where the efforts of the plaintiff to retain an expert have not been undertaken in a timely manner: Whitehaven, [61].

61. The defendants summarised their argument against the setting aside of the guillotine order in their December submissions as follows:

C. Lifting the guillotine order

25.    The Notice of Motion seeks that the guillotine order made by Judicial Registrar Howard on 19 April 2024 be set aside.

26.    The starting point is that an interlocutory order stands unless the moving party demonstrates that there is a change in circumstances, demonstrated by evidence, that render the continuation of the order unjust: Adam P Brown Male Fashions Ply Limited v Philip Morris Inc. [1981] HCA 39; (1981) 148 CLR 170.

27.    More specifically, a guillotine order may be set aside where:

a.    The applicant provides an adequate, comprehensive and candid explanation for the failure to comply with the order: The Owners - Strata Plan No, 94784 v Mirvac Projects Pty Limited [2024] NSWSC 741, [14] per Stevenson J.

b.    The applicant demonstrates that its efforts to obtain the evidence have been conducted in a timely manner: Les & Zelda Investments Ply Limited v Whitehaven Coal Limited [2024] NSWSCD 1037, [60] - [61] per McGrath J.

28. The Plaintiff has not satisfied any of the general or specific requirements to lift the guillotine order and that application must be refused accordingly.

62. The defendants argued that no explanation has been given for the late service of Mr Dowse’s existing report. Further, no explanation has been given as to why steps were not taken to brief Mr Dowse earlier and why the material which the plaintiff contemplates obtaining by way of a second report of Mr Dowse has not already been obtained. The defendants make the point that the need for the plaintiff to provide an explanation was made clear to the plaintiff in the defendants’ August submissions and in the defendants’ November submissions and by Judge Gibson on 15 October 2024.

63. The defendants argue that Mr Livers’ affidavit does not contain an adequate explanation. Language difficulties are routinely overcome with the assistance of interpreters and cannot justify a delay of many months. Documents can be obtained by the use of subpoenas, among other methods.

Consideration

64. I accept the plaintiff’s argument with respect to rule 31.28. It does not apply to the plaintiff’s application to set aside the guillotine order and allow the service of further expert reports.

65. The plaintiff has offered no reason, beyond the plaintiff’s limited ability to speak English and his personal issues, as to why the order of 19 April 2024 has not been complied with. The plaintiff’s lawyer agreed to that order, some nine months after filing the Statement of Claim. Presumably, by that time, he was well aware of his client’s circumstances.

66. There is no evidence that the plaintiff took steps to obtain documents in a timely manner. The plaintiff’s solicitor, in his affidavit of 4 July 2024, recounts asking the Council and the defendants to provide him with documents in 2021, but formal steps to obtain documents seem not to have been pursued until years later, after the filing of the Statement of Claim. The plaintiff’s solicitor says that he inspected the Council’s file in June 2021, but found nothing “to shed light on the Plaintiffs’ allegations and instructions”.

67. No proper basis for the setting aside of the guillotine order has been provided.

Summary and conclusion

68. For the above reasons, the applications in the Notice of Motion must be refused.

69. The following order will issue:

(1)   The plaintiff’s motion filed on 5 July 2024 is dismissed.

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Decision last updated: 06 February 2025