Diane Elva May Harris v Perry Homes (Aust) Pty Limited

[2021] NSWDC 756

District Court

New South Wales

Medium Neutral Citation:

Diane Elva May Harris v Perry Homes (Aust) Pty Limited & Anor [2021] NSWDC 756

Hearing dates:

4 November 2021

Date of orders:

4 November 2021

Decision date:

04 November 2021

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

1. Leave granted to the plaintiff to file and serve a further amended statement of claim in the form of the document entitled "second further amended statement of claim".

2. The second prayer for relief is refused.

3. Leave granted to the plaintiff to file and serve by 4:00pm on 3 December 2021 an edited copy of Mr Cuniffe's report or a further report having the same effect, removing from his report matters relating to liability.

4. Leave granted to the plaintiff to adduce from Mr Cuniffe the cost of rectification work in addition to the cost of demolition work.

5. The costs of this notice of motion are the defendants’ costs in the cause.

Catchwords:

CIVIL PRACTICE AND PROCEDURE – BUILDING CASE – EXPERT EVIDENCE – UCPR 31.17 ­– On 18 May 2021, Judicial Registrar made an order that the Plaintiff serve an expert report relating to quantum by 17 July 2021 – On 18 May 2021 Plaintiff’s solicitor qualified an expert asking him to prepare a report about quantum and liability – Application by plaintiff to for leave to adduce that report on liability – Main purpose of UCPR 31 Division 2 (expert evidence) is to limit expert witnesses to the minimum necessary to achieve justice – plaintiff already had an expert in the appropriate field – Application refused – Expert on quantum had only costed the demolition and reconstruction of the building but not the cost of rectification – Leave granted to serve a further report of the expert costing both rectification and reconstruction.

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Plaintiff
Diane Elva May Harris
First Defendant
Perry Homes (Aust) Pty Limited
Second Defendant
Jenkins trading as Col Jenkins and Associates

Representation:

Plaintiff
T. Bland
First Defendant
M. Steele
Second Defendant
C. Simpson

File Number(s):

2020/00045503

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Before me is a notice of motion filed on 25 August 2021. It contains two substantive prayers for relief. The first is that the plaintiff be granted leave to file the "second further amended statement of claim" as served on 22 July 2021. A copy of that statement of claim is annexed to the affidavit of Mr George Robert Charles Hoddle which is exhibit A-A. Earlier today, by consent, I granted leave to the plaintiff to file and serve a further amended statement of claim in the form of the document entitled "second further amended statement of claim" annexed to the affidavit of Mr Hoddle sworn on 24 August 2021 omitting reference to evidence contained in par 27(xvii) and par 24 of that document. The second prayer for relief is this "The plaintiff be granted leave to rely upon the report of Dr Cuniffe dated 17 June 2021 in its entirety and for all purposes [as] pleaded at pars 24 and 27(xvii)". 

2. The proceedings arise out of the construction by the first defendant of a dwelling house for the plaintiff at Lot 40 in Deposited Plan 852454 which I understand to be known as 14 Joe Coates Place, Manilla, a rural town west of Tamworth. The contract for the construction of that dwelling house was made on 21 January 2013. According to documents I have read, the construction of the dwelling house was completed on 12 September 2013. Since that time, the plaintiff has become aware of defects in the fabric of that building which she maintains are "building defects" for which the first defendant, the builder of the dwelling house, is liable.

3. As I understand it, the plaintiff brings a claim in contract against the builder for the cost of the rectification of the defects alleged to have been caused by inadequate construction by the defendant as well as a claim for loss of rent, the plaintiff maintaining that the defendant was aware or ought to have been aware that the plaintiff intended to rent out the dwelling house to others. 

4. The plaintiff commenced proceedings in the New South Wales Civil and Administrative Tribunal (“NCAT”) on 10 November 2019 shortly prior to the sixth anniversary of the completion of the building. On 24 October 2019 a Senior Member of NCAT ordered that the proceedings in that Tribunal be transferred to this Court and continue before this Court as if the proceedings had been commenced in this Court. The reason given for the "transfer" was that the quantum of the expected claim was likely to exceed the Tribunal's jurisdictional limit. 

5. As I understand it, a summons was filed by the plaintiff in this Court at Tamworth on 12 February 2020. On 30 July 2020, the plaintiff filed an amended summons which appears to have been, in essence, a statement of claim. On 26 October 2020, the plaintiff filed an amended statement of claim which, inter alia, joined the second defendant, Col Jenkins trading as Col Jenkins & Associates, as the second defendant. 

6. The pleading in the amended statement of claim filed on 26 October 2020 contains this:

"26. By reason of the defence nominating the second defendant, Col Jenkins trading as Col Jenkins & Associates (Jenkins), as a

concurrent wrongdoer, Harris says:

(i) Jenkins was, at all material time, an engineer holding himself out to be competent in geotechnical engineering;

(ii) Jenkins was engaged in his professional capacity and for reward by Perry Homes to provide geotechnical assessment of the home site and provided designs based upon his assessment;

Particulars

Col Jenkins' report of January 2013, Certificate of Structural Adequacy dated 21 January 2013:

(iii) In executing his professional duties to Perry Homes, Jenkins also owed Harris a duty of care that the work of assessment of the soil type upon which the house was to be built was correct;

(iv) In determining the soil type was only slightly reactive and not highly reactive, Jenkins breached his duty of care to Harris;

(v) In executing his professional duties to Perry Homes, Jenkins also owed Harris a duty of care that the work of structural design and issuing the certificate of structural adequacy, Jenkins owed a duty of care to Harris that the design was structurally adequate and sufficient to support a dwelling house on the site.”

7. There are further allegations made against the second defendant but I do not need to cite them in full, merely I have cited sufficient to show the nature of the claim mounted against the second defendant. That claim is necessarily in the tort of negligence and it should be clear by this stage that the building of the dwelling house in question was completed eight years ago. Defects have been appearing since shortly after the dwelling house was built. According to the statement of claim, defects in the fabric of the building were advised to the plaintiff by her letting agent on or about 24 April 2014; that is, well over seven years ago. 

8. I am told that the primary expert qualified by the plaintiff, Mr Justin Cant, of Kelley Covey recommends that the building defects be rectified, or in the alternative, that the dwelling house be demolished and a new structure erected.

9. The matter has, if I may say so, an unhappy curial history. The first orders were made by the Judicial Registrar on 9 March 2020. On 9 February 2021 the Judicial Registrar ordered that the plaintiff file and serve affidavits and expert evidence by affidavit by 12 March 2021. He also ordered the defendants to file and serve lay and expert evidence (building and engineering) by affidavit by 30 April 2021. He ordered the plaintiff to file any evidence in reply by 7 May 2021.  He listed the matter for directions on 18 May 2021. The affidavit of Kelly Maree Waring, the solicitor for the second defendant, which affidavit is exhibit 1‑1 before me, contains this matter:

"4. On 1 March 2021 I sent an email to the plaintiff to arrange for a suitable time for an inspection of the dwelling by an expert. I was sent an email from the plaintiff advising that an inspection could proceed on 9 April 2021. It was intended that the expert's evidence would be prepared following this inspection.

5. The plaintiff did not file any evidence within the timeframe required by the orders made on 9 February. On 15 March 2021 I sent an email to the plaintiff regarding the outstanding evidence. I did not receive a response. On 23 March 2021 I sent an email to the plaintiff regarding the outstanding evidence.

6.  On 26 March 2021 I received a letter from the plaintiff advising the plaintiff's evidence was delayed. On 7 April 2021 I received a letter from the plaintiff serving the affidavit of the plaintiff affirmed 31 March 2021. On 8 April, I received a letter from the plaintiff serving the affidavit of Katie Agnew affirmed 7 April 2021. On 9 April 2021 I sent a letter to the plaintiff regarding the plaintiff's evidence and whether expert evidence would be served. I did not receive a response. On 26 April 2021 I sent an email to the plaintiff regarding when the plaintiff's expert evidence would be served. On 27 April 2021 I received a letter from the plaintiff advising all lay evidence had been filed but the plaintiff was 'yet to receive our expert evidence'. On 3 May 2021 I received a letter from the plaintiff serving the report of Kelley Covey dated May 2021. Kelley Covey has been engaged by the plaintiff since prior to April 2017.

7. On 4 April 2021 I sent an email to the plaintiff requesting confirmation that the whole of the plaintiff's evidence had been filed.  I did not receive a response. On 12 May 2021 I sent an email to the plaintiff seeking a response. This email also stated, 'the

evidence served by the plaintiff does not fully particularise the estimated rectification costs'. On 13 May 2021 I received an email in reply which stated 'we have reviewed this position and agree that we require quantum evidence...we have sought the indulgence of the Court for a further month to provide one further expert report in this regard'."

10. On 17 May 2021 the Judicial Registrar made a number of orders. They include these:

"(a) The plaintiff serve on each of the defendants a copy of exhibit 'DH' to the affidavit of Diane Elva May Harris affirmed 31 March 2021 which complies with r 35.6(4) and 35.6(4A) by 25 May 2021.

(b) The plaintiff serve on each of the defendants a copy of the report of Justin Cant dated May 2021 with the pages of all annexures to that report numbered consecutively in a single series of numbers by 25 May 2021.

(c) The plaintiff may not serve any further lay or expert evidence‑in‑chief without leave of the Court.

(d) The first and second defendant serve any request for further and better particulars of the amended statement of claim by 8 June 2021.

(e) The plaintiff provide a response to any request for further and better particulars by 22 June 2021.

(f) The plaintiff to serve one further expert report relating to quantum which must be filed and served by the plaintiff by 17 June 2021.

(g) Any further adjournment to be supported by an affidavit, otherwise parties to make an OLC request for hearing and defendant's evidence."

11. The Judicial Registrar listed the matter for directions on 6 July 2021. What occurred on 6 July 2021 has been endorsed in handwriting on the Court file by the Judicial Registrar. Unfortunately, I find it difficult to read what he has written. The matter was adjourned until 20 August. On 19 August the Judicial Registrar made an order vacating the directions hearing on 20 August. He ordered the plaintiff to file a notice of motion and supporting affidavits in support of an application for leave to rely upon the report of Dr Cuniffe in its entirety and for all purposes and to file the second further amended statement of claim as served on 22 July 2021 by 25 August 2021, returnable on 17 September 2021. The defendants were ordered to file and serve any evidence opposing the plaintiff's motion by 8 September 2021. On 17 September 2021 the matter has set down for hearing today with an estimate of two hours.

12. The defendants oppose any further evidence on liability being given by the further expert qualified by the plaintiff, Mr John Cuniffe. In the introduction to the report, Mr Cuniffe describes himself as a senior building consultant at John Worthington & Associates and a director of Worthington Cuniffe & Associates Pty Ltd. He said that he specialises in building defect reports as well as other matters related to building and construction. There is before me a curriculum vitae of Mr Cuniffe and it contains certain academic qualifications which may be controversial. Needless to say, I fully accept that he is an expert master builder and can give the sort of evidence that an expert master builder can give. However, his report is not limited to the matters for which it ought to have been sought, the quantification of the cost of the rectification of the alleged defects in the building of the dwelling house.

13. A copy of the letter qualifying Mr Cuniffe is annexed to exhibit 1, item 1. The letter bears date 18 May 2021. That is the day following the date when the Judicial Registrar permitted the plaintiff to serve one further expert report relating to quantum which was to be filed and served by the plaintiff on 17 June 2021. It was on that day that the Judicial Registrar also made an order that the plaintiff was not to serve any further lay or expert evidence in chief without the leave of the Court.

14. It is accepted that the report of Mr Cuniffe of 17 June 2021 impinges on aspects of liability that arise directly from the instructions that were given to Mr Cuniffe by the plaintiff's solicitors. Inter alia, he was asked to prepare and provide a report and a potential response to the pleadings and to the report of Mr Justin Cant of Kelley Covey which was provided to him. In other words, he was asked to comment directly on questions relating to liability, not merely on questions relating to quantum. The 11th numbered paragraph of the qualifying letter required Mr Cuniffe to make a statement regarding any reservations that he might hold in regard to any fact or opinion that he expressed or of those expressed in Mr Justin Cant's report. In other words, he was again asked directly to comment on matters relating to liability. When one reads the report closely, a report comprising 189 pages including numerous annexures, one can see passim comments regarding liability.

15. Mr Cuniffe has not actually costed the value of rectification work. Rather, he formed the view that the only effective way of dealing with the problem that had been identified by Mr Cant and which he also identified was the demolition of the house with a replacement being built over the appropriate footings and foundations on site. The cost of that work has been estimated by him as $356,459.61. The estimate is contained on pages numbered 70, 71 and 72 of his report. On p 70 are items relating to what he refers to as "preliminaries" which includes "demolish house and foundations". Then are costs associated with excavation and costs associated with foundations. The total of those is about $75,000 which clearly represents part of the demolition of the current dwelling rather than seeking to estimate the cost of repairing it.

16. UCPR 31 deals with evidence. Division 2 of that Part contains provisions applicable to expert evidence generally. The main purpose of the division is stated in UCPR 31.17. It is in these terms:

"The main purposes of this Division are as follows:

(a) to ensure that the court has control over the giving of expert evidence,

(b) to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings,

(c) to avoid unnecessary costs associated with parties to proceedings retaining different experts,

(d) if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert engaged by the parties or appointed by the court,

(e) if it is necessary to do so to ensure a fair trial of proceedings, to allow for more than one expert (but no more than are necessary) to give evidence on an issue in the proceedings,

(f) to declare the duty of an expert witness in relation to the court and the parties to proceedings."

17. The main purpose of the division is to limit expert witnesses to the minimum necessary to achieve justice. Here the Plaintiff has a report from Mr Justin Cant, an expert engineer, the primary report commissioned for the purposes of bringing the claim against the first defendant. The plaintiff has also qualified a separate expert to give evidence concerning matters concerning the liability of the second defendant, essentially a second geotechnical engineer. The purpose of qualifying Mr Cuniffe, as given to the Court and as limited by the Court, was to quantify the cost of rectification and the cost of demolition should that be pursued by the plaintiff. Without knowing the cost of rectification it might be impossible to know whether the better course is to proceed by way of demolition and rebuilding.

18. Neither defendant has yet served any expert or lay evidence. That is completely understandable since the plaintiff has not yet finalised her expert evidence. I have been told from the "virtual" Bar table that the defendants have agreed to obtain a joint report on liability but, depending on what that might say, it might be necessary for one of the defendants to obtain a separate expert report. I am also told that, in any event, the defendants will obtain a joint report on the question of quantum. The defendants clearly intend to minimise the number of experts retained.

19. It is to be noted that the plaintiff only retained Mr Cuniffe the day after orders had been made by the Judicial Registrar limiting the purpose for which his report was to be obtained to quantum. Nevertheless, his report goes far beyond that. It is not in the interests of justice for the report to be admitted in its current form because it goes far beyond questions relating to quantum and impacts directly on the question of liability. In other than extremely grave cases, parties ought be limited to one expert in an appropriate field. When I speak of grave cases, I am talking of multimillion or multibillion commercial cases which clearly are not conducted in this Court but rather, in the Supreme Court and the Federal Court. The type of case that is heard in this Court could hardly justify more than one expert in the one field per party. Even so, in a case of this nature, I could end up with three engineers, three geotechnical engineers and three experts on quantum. However, the defendants are seeking to limit the number of experts whom they will retain.

20. It is completely unfair to the defendants to require them to answer two experts in the same field and would only invite each of the defendants to qualify a second expert so that the parties could be "equally" represented by way of expertise. That is unnecessary. Furthermore, it has not been shown why it was necessary to ask Mr Cuniffe to comment on questions relating to liability when the order had been made on the day before by the Judicial Registrar that he was only to comment on questions concerning quantum. Furthermore, the leave of the Court could have been obtained but that would have had to have been obtained in advance and reasons given in advance as to why it was necessary to qualify a second expert in the same field.

21. When I sought to point out to the plaintiff that the plaintiff's conduct had been dilatory I was told that the plaintiff is a nurse practising at Coffs Harbour and that the delay was necessary because of the COVID 19 pandemic which was then affecting this country. However, the COVID 19 pandemic had not locked down any part of the State of New South Wales in February or March of this year. During July of this year, when Sydney was in lockdown, I motored north to Coffs Harbour to conduct a specially fixed criminal trial by judge alone with an estimate of two weeks because the resident judge had disqualified himself from hearing that criminal trial. Fortunately, at that time, Coffs Harbour had not been locked down and there was a "scare" announced shortly after my Associate and I arrived there that there had been a local outbreak but fortunately the scare appeared to be a fiction rather than a fact. I cannot accept that the delay by the plaintiff in complying with the orders made had anything to do with the COVID 19 pandemic.

17. The court's orders are to be obeyed. If they cannot be obeyed the party should seek to have the Court vary the orders but that was not done. Here an order was made by the Judicial Registrar on 17 May 2021 about further expert evidence and was ignored by the plaintiff's solicitor on the day following. That is inexcusable conduct but it may represent a misunderstanding of what the Judicial Registrar's orders were. I note that they were made in the "online court" and that the plaintiff was represented by Jennifer Simpson rather than counsel, although Ms Simpson consented to the orders that had been proposed by the first defendant and according to exhibit 1-1, the orders had been made on 17 May by consent. That, again, requires even closer attention by those acting for the plaintiff to their obligations to the Court and to other practitioners.

18. For those reasons, the second prayer for relief is refused. I, however, grant leave to the plaintiff to file and serve an edited copy of Mr Cuniffe's report or a further report having the same effect, removing from his report matters relating to liability and I grant the plaintiff leave to adduce from Mr Cuniffe the cost of rectification work in addition to the cost of demolition work. Such report is to be filed and served by 4pm on 3 December 2021. The costs of this notice of motion are the defendants’ costs in the cause.

Decision last updated: 17 March 2022