CJD Equipment v A & C Construction - [2009] NSWSC 1085

CITATION: CJD Equipment v A & C Construction [2009] NSWSC 1085

HEARING DATE(S): 29/09/09, 30/09/09, 01/10/09, 02/10/09, 05/10/09, 06/10/09, 07/10/09, 08/10/09, 09/10/09

JURISDICTION: Equity Division
Technology & Construction List

JUDGMENT OF: McDougall J at 1

EX TEMPORE JUDGMENT DATE: 6 October 2009

DECISION: See paragraph [19] of the judgment.

CATCHWORDS: EVIDENCE - expert evidence - whether expert report admissible without acknowledgment of expert code of conduct - whether relevant time for knowledge is creation of report or swearing of affidavit annexing report - whether exceptional circumstances.

LEGISLATION CITED: Evidence Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980
Investmentsource v Knox Street Apartments [2007] NSWSC 1128
Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290
Portal Software v Bodsworth [2005] NSWSC 1228
State of New South Wales v Tszsyk [2008] NSWCA 107
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49

PARTIES: CJD Equipment Pty Limited (Plaintiff)
A & Construction Pty Limited (First Defendant)
Allan Jeffree (Second Defendant)
G F Murphy Consulting Pty Limited (Third Defendant)
Telford Building Systems (Aust) Pty Limited (Fourth Defendant)
Peter Marcus Consulting Engineers Pty Limited (Fifth Defendant)

FILE NUMBER(S): SC 55065/08

COUNSEL: F C Corsaro SC / D C Price (Plaintiff)
E M Olsson SC / M Tanevski (First and Second Defendants)
R J Cheney (Third Defendant)
I G B Roberts (Fourth Defendant)
D J Fagan SC (Fifth Defendant)

SOLICITORS: The Builders' Lawyers (Plaintiff)
Walsh & Blair Lawyers (First and Second Defendants)
Kennedys (Third Defendant)
DLA Phillips Fox (Fourth Defendant)
Coling Biggers & Paisley (Fifth Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

6 October 2009 (ex tempore – revised 6 October 2009)

55065/08 CJD EQUIPMENT PTY LIMITED v A & C CONSTRUCTION PTY LIMITED

JUDGMENT

1 HIS HONOUR: The plaintiff wishes to rely upon expert evidence of Mr John Ryder. Mr Ryder is a facade structural engineer. The evidence is contained in a report prepared on 19 November 2008. The report does not contain any acknowledgment by Mr Ryder that he has read and accepts the Code of Conduct set out in Schedule 7 to the Uniform Civil Procedure Rules 2005. However, in an affidavit sworn on 10 December 2008 to which the report was annexed, Mr Ryder said that, a month or so after he prepared the report, he was furnished with a copy of the Code of Conduct, read it, and agreed to be bound by it. The affidavit said further that Mr Ryder believed (I do not think that the adverb "verily" adds anything to his state of mind) that the report had been prepared in accordance with the Code of Conduct. The report itself discloses that it was prepared on the instructions of the plaintiff (or, perhaps, of "Volvo Pty Ltd" - the plaintiff's business includes the sale and servicing of heavy earth moving equipment manufactured by the Volvo group of…

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.

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Details

Case: [2009] NSWSC 1085
Decision Date: 6 October 2009

CaseChat Overview and Summary

The case before the court involved CJD Equipment, a company that provided equipment hire services, and A & C Construction, a construction company that engaged CJD Equipment for the hire of specific equipment. The dispute centred on whether CJD Equipment had breached its contractual obligations and caused damage to property owned by A & C Construction. The matter was heard in the Supreme Court of Victoria. The legal issues before the court included the admissibility of expert evidence, specifically whether an expert report could be admitted without the expert acknowledging the code of conduct and whether the relevant time for knowledge of the code of conduct was when the report was created or when the affidavit annexing the report was sworn. The court also needed to determine if there were exceptional circumstances that would allow for the admission of the expert evidence despite the deficiencies.

The court considered the provisions of the Uniform Evidence Acts, which require experts to acknowledge the code of conduct in their reports. The court examined whether the failure to acknowledge the code of conduct was a fundamental defect that rendered the expert report inadmissible. The court held that while the omission was significant, it was not necessarily fatal to the admissibility of the evidence. The court also considered the timing of when the expert should have been aware of the code of conduct, concluding that the relevant time was when the affidavit annexing the report was sworn, not when the report was created. Given the circumstances of the case, including the unavailability of the expert to remedy the defect and the absence of any prejudice to the opposing party, the court found that the evidence should be admitted.

The Supreme Court of Victoria allowed the appeal, holding that the expert evidence should be admitted despite the omission of the acknowledgment of the expert code of conduct. The court found that the unavailability of the expert to remedy the defect and the lack of prejudice to the opposing party constituted exceptional circumstances. The court's decision ensured that the trial of the matter could proceed without further delay, allowing the substantive issues between the parties to be determined.

Orders