Cobanov v Josifovski

[2019] ACTSC 269

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cobanov & Anor v Josifovski

Citation:

[2019] ACTSC 269

Hearing Date:

27 September 2019

DecisionDate:

27 September 2019

Before:

Elkaim J

Decision:

The plaintiffs’ application filed 9 September 2019 is dismissed with costs.

Catchwords:

DUTY APPLICATION – Application by the first and second plaintiffs to serve expert report on the defendant – whether leave should be granted – whether exceptional circumstances exist

Legislation Cited:

Court Procedure Rules 2006 (ACT) r 1241

Parties:

John Ivo Cobanov (First Plaintiff)

A-Shell Homes Pty Ltd (Second Plaintiff)

Kiki Josifovski (Defendant)

Representation:

Counsel

J Haddock (First and Second Plaintiffs)

A Taylor (Defendant)

Solicitors

J S O’Connor Harris & Co (First and Second Plaintiffs)

Meyer Vandenberg Lawyers (Defendant)

File Number:

SC 241 of 2018

ELKAIM J:

1. There were originally two applications before the court, one by each of the parties respectively. The defendant’s application has been resolved by agreement. The plaintiffs’ application remains outstanding. This application was filed on 9 September 2019.

1. The purpose of the application is to obtain leave to serve an expert report dated 6 May 2019. The report says that the plaintiff’s signature on a document called a Construction Contract Settlement Agreement (the Agreement) is in fact not that of the first plaintiff.

1. The dispute between the parties arises from the building of a residential dwelling. According to the first plaintiff, who is a builder, the construction was carried out through a partnership between him and the defendant. The defendant says that no such agreement existed and that the relationship between the parties was one of owner/builder.

1. The Agreement was originally pleaded by the defendant in his Defence. A plain reading of the document would lead to a conclusion that the plaintiffs accepted that the defendant had discharged any financial obligation to the plaintiffs that might have existed, arising from their relationship.

1. The expert report was sent to the defendant on 25 May 2019. The defendant responded on 7 June 2019 saying that he would not consent to the service of the report.

1. The defendant has sought leave to file an Amended Defence in which the paragraph in the Defence which had relied on the Agreement has been deleted. The plaintiffs have consented to the filing of the Amended Defence.

1. There was a listing hearing on 27 June 2019. Although there is no mention in the bench sheet for the hearing, I was informed that the report was raised and an observation was made that it would be discussed at a forthcoming mediation. This occurred on 9 August 2019.

1. On 2 September 2019 the plaintiffs formally requested that the defendant agree to the tender of the report. The defendant promptly replied that it opposed the tender, thus leading to the filing of the application on 9 September 2019.

1. The plaintiffs say that the expert report is “overwhelmingly significant”. The defendant says it is not relevant following the amendment to the Defence and, in any event, the application to tender the report has been made too late and in contravention of the Court Procedure Rules 2006 (ACT).

10.  Rule 1241 says that an expert report must not be served other than in compliance with a direction made by the court, unless there are exceptional circumstances. The court did make directions in this matter and they required service of expert reports to be completed in December 2018. This means that the service of the report can only now be effected with the leave of the court, and this leave can only be granted in exceptional circumstances.

11.  The difficulty in this case is to identify the exceptional circumstances. It is true that there has been correspondence between the parties about the report and that there has been a mediation in which the report was discussed. It is also true that the defendant has been in possession of the report since May and is therefore not taken by surprise by its contents.

12.  I agree with the plaintiffs that, in a matter where credit is likely to loom large, that the conclusion of the report, if accepted could have a significant effect on the outcome of the case. The defendant does not have a report and would require 2 to 3 weeks to obtain a report to answer that of the plaintiffs and it will apparently cost about $3,000.

13.  More importantly the hearing date of 21 October 2019 will be placed at risk.

14.  Following the directions hearing the parties were required to file a Listing Hearing Questionnaire. According to this document the plaintiffs had served all expert reports upon which they intended to rely. I accept that the person filling in the report may have mistaken the intent of the question to be whether or not the report had been sent to the defendant. However, the purpose of the form is to make sure the matter is ready for hearing. The questionnaire should not have been filled out to that effect because, absent the proper service of the report, the matter was not ready for hearing.

15.  The reason that I have decided to dismiss the application however, is even more simple. When I asked learned counsel for the reason that the present application had been delayed I was told that a “pragmatic” approach had been taken. Pragmatism, by its very definition, is not exceptional.

16.  The plaintiffs have simply failed to establish that exceptional circumstances exist which would justify the service of the expert report. This is not to say, of course, that the defendant’s credit cannot still be put in issue. I imagine, for example, that the defendant may have some difficulty in explaining his instructions behind the Amended Defence where he effectively abandons an acknowledgement by the plaintiffs that there was no money owing to the plaintiffs.

17.  I make the following orders:

(i)The plaintiffs’ application in proceeding filed on 9 September 2019 is dismissed.

(ii)The plaintiffs are to pay the defendants costs of the application, those costs not to be payable until the conclusion of the proceedings.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim.

Associate:

Date: 27 September 2019