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:

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.

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.

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.

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.

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.

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.

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.

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.

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…

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

AGLC: Cobanov v Josifovski [2019] ACTSC 269
Case: [2019] ACTSC 269
Decision Date: 27 September 2019

CaseChat Overview and Summary

The case of Cobanov v Josifovski involves the plaintiffs, Cobanov and another, seeking to serve an expert report on the defendant, Josifovski, in relation to proceedings that include allegations of fraud and deceit. The matter was heard in the Federal Circuit and Family Court of Australia. The plaintiffs sought leave to serve the expert report outside the usual timeframe, arguing that exceptional circumstances justified an extension.

The legal issues before the court included whether the plaintiffs had demonstrated exceptional circumstances that warranted the grant of leave to serve the expert report outside the prescribed time limits. The court had to consider the plaintiffs' reasons for the delay and whether there was any justification or excuse for the late service of the expert report. Furthermore, the court needed to evaluate whether the late service of the expert report would cause any prejudice to the defendant.

The court found that the plaintiffs had not demonstrated exceptional circumstances warranting the extension of the time limit for serving the expert report. The plaintiffs' reasons for the delay were insufficient, and there was no justification for the late service. The court concluded that the late service would likely prejudice the defendant, who had already faced delays due to the plaintiffs' actions. Consequently, the plaintiffs' application to serve the expert report outside the usual timeframe was dismissed, with costs awarded against the plaintiffs.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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