Flitcroft v Cassidy Constructions Pty Ltd t/as Buildscene

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Flitcroft v Cassidy Constructions Pty Ltd t/as Buildscene [2023] NSWCATCD 26

Hearing dates:

13 March 2023

Date of orders:

15 March 2023

Decision date:

15 March 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

1. The applicant’s application to file the supplementary report of Mr Kyle and for ancillary orders is dismissed.

2. If the respondent seeks costs, it should file submissions within 14 days. Those submissions must identify the relevant costs rule, and the reason why the respondent says it is entitled to costs.

3. The applicant may respond within a further 14 days.

4. The respondent may reply within a further 7 days.

5. The hearing date of 4 April 2023 is confirmed.

Catchwords:

PRACTICE AND PROCEDURE – application to reopen expert evidence component of proceedings – application refused

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW) - ss 38(2), 38(5)(c) and 38(6)(a)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Bailey v Palombo [2020] NSWSC 1209

Bao Long Guo t/as GD Brother Projects v GB Electrical Services Pty Ltd [2020] NSWCATAP 131

EB v CT (No 2) [2008] QSC 306

Reid v Brett [2005] VSC 18

Smith v New South Wales Bar Association (1992) 176 CLR 256

Category:

Procedural rulings

Parties:

First Applicant: Julian Flitcroft
Second Applicant: Margaret Flitcroft
Respondent: Cassidy Constructions Pty Ltd t/as Buildscene

Representation:

Counsel:

Applicants: S Blackman
Respondent: A Munro

Solicitors:

Applicants: Contracts Specialist
Respondent: G R Gorrie & Co Pty Ltd t/as GRG Lawyers

File Number(s):

HB 22/27326

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This matter was listed for hearing on 8 February 2023 and adjourned part-heard that day, following the conclusion of the expert evidence.

2. The hearing resumes on 4 April 2023.

3. By application filed 7 March 2023 the applicants seek orders that:

• leave be granted to file with the Tribunal and serve on the respondent a supplementary statement of Mr Aaron Kyle dated 22 February 2023;

• the respondent have leave to file with the Tribunal and serve on the applicants any report of Mr Nakhla, the respondent's retained building expert, in reply to the supplementary statement of Mr Kyle by 31 March 2023;

• the applicants pay the respondent's costs on an ordinary basis thrown away for the respondent's expert's cost to reply as agreed or assessed;

• the parties are to inform each other by 3 April 2023 if they require Mr Nakhla or Mr Kyle for further cross-examination;

• Mr Nakhla and Mr Kyle have leave to appear by AVL or telephone if required for further cross-examination;

• the 4 April 2023 hearing date is confirmed.

4. The application is opposed by the respondent.

5. For the following reasons, the application is dismissed.

Applicant’s materials and submissions

Materials

6. The applicants filed the following documents with the Tribunal on 7 March 2023.

7. First a letter to the Tribunal. Relevantly, the letter states:

3. The Applicant's independent expert witness, Mr Aaron…