Construction & Design Australia Pty Ltd v Robinson

[2024] NSWSC 375

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Construction & Design Australia Pty Ltd v Robinson [2024] NSWSC 375
Hearing dates:	9 April 2024
Decision date:	09 April 2024
Jurisdiction:	Common Law
Before:	Stevenson J
Decision:	Defendants granted leave to re-open their case to tender and rely upon extracts from plaintiff’s expert report, subject to it being served in satisfaction with the requirements of UCPR r 31.28
Catchwords:	EVIDENCE – course of evidence – application by defendants for leave to re-open their case to rely on plaintiff’s expert report
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural rulings
Parties:	Construction & Design Australia Pty Ltd ACN 168 477 316 (Plaintiff/Cross-Defendant) Nerida Robinson (First Defendant/Cross-Claimant) Mark Bowmer (Second Defendant/Cross-Claimant) Gerard Peter Turnbull (Second Cross-Defendant) Daniel John Turnbull (Third Cross-Defendant)
Representation:	Counsel: M Klooster / M Waters (Plaintiff/Cross-Defendants) A Crossland / B Flaherty (Defendants/Cross-Claimants) Solicitors: ZBA Lawyers (Plaintiff/Cross-Defendants) PDC Law (Defendants/Cross-Claimants)
File Number(s):	2020/52689

EX TEMPORE JUDGMENT (REVISED)

1. I heard these proceedings on 18 to 21, and 25 March 2024. I am currently reserved.

2. The defendants seek leave to reopen their case to tender an expert report of a valuer, Mr Jason Field. Mr Field is the expert valuer engaged by the plaintiff. The plaintiff served Mr Field’s report but did not tender it. Mr Field nonetheless participated in conclave with the defendants’ valuer, Mr Andrew Kelkert. Their joint report is in evidence.

3. In his opening, Mr Crossland, who appears with Ms Flaherty for the defendants, handed up an aide-memoire setting out, in relation to the defendants’ misleading or deceptive conduct claim, the calculation of the defendants’ damages claim on an “alternative transaction”. An element in that calculation is a figure of $535,000 for “land increase”, which figure, in turn, is said to be the difference between the as-is value of the land (agreed to be $1.31 million) and the value of the land as at 8 August 2018 ($775,000). The difficulty that the defendants are in is that the only witness to give evidence as to the figure of $775,000 was Mr Field. As the plaintiff did not tender Mr Field’s report, that figure is currently not proven.

4. Mr Crossland, with his customary candour, informed me that the reason that the defendants did not themselves seek to tender Mr Field’s report in the hearing was that the question was overlooked. That is not alone, normally, a reason to allow a party to reopen the case but, in this case, there are other factors at play.

5. The first is that Mr Field’s opinion as to the value of the land as at 8 August 2018 is a relevant matter, indeed a critical matter, in the defendants’ calculation of its damages on its “alternative transaction case”.

6. Further, it is hard to see what possible prejudice there would be to the plaintiff, as what is sought to be tendered is its own expert valuer’s opinion.

7. I asked Mr Klooster, who appears with Ms Waters for the plaintiff, to let me know how he would have conducted the case differently had Mr Field’s report been tendered during the hearing. Mr Klooster, with his customary candour, accepted that it would have made no difference.

8. In those circumstances, I grant leave to the plaintiff to rely upon Mr Field’s report subject to it being served, in satisfaction with the requirements of Uniform Civil Procedure Rules 2005 (NSW), r 31.28. It will be marked as Exhibit 6. The tender is confined to Mr Field’s opinions in par 17.3 to 17.14.

9. Costs are costs in the proceedings.

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Amendments

03 May 2024 - Coversheet - party details updated

Decision last updated: 03 May 2024