Grevacs Pty Ltd v Courtware (Australia) Pty Ltd
[2010] QDC 450
•26 November 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Grevacs Pty Ltd & Anor v Courtware (Australia) Pty Ltd & Ors [2010] QDC 450
PARTIES:
GREVACS PTY LTD ACN 108 899 172
First Plaintiff
and
GREEN & KOVACS PTY LTD ACN 072 763 743
Second Plaintiff
v
COURTWARE (AUSTRALIA) PTY LTD ACN 006 257 647
First Defendant
and
NOOSA ENTERPRISE ESTATE PTY LTD (IN LIQUIDATION) ACN 011 058 076
Second Defendant
and
SPENCER FRANCIS JACOB
Third Party
FILE NO:
Maroochydore: 316/2008
Brisbane: 4836/2008
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 26 November 2010 DELIVERED AT: Maroochydore
HEARING DATE: 19 November 2010 JUDGE:
K S Dodds, DCJ
ORDER:
1. The plaintiffs make further disclosure to the defendant and the third party by production of documents in accordance with rules 216 and 217 UCPR of all documents which are directly relevant to the claim for consequential losses as assessed in the report of David Clout and Associates dated 26 August 2010. These should include the appendices referred to in the said report of David Clout and Associates, and any other sources of information. Production and inspection is to occur on or before 28 January 2011.
2. The defendant and the third party be provided with access to the plaintiffs’ bakery premises the subject of the claim at a date and time convenient to the parties and any retained experts on or before 28 January 2011.
3. Any report prepared by an expert retained by the parties is to be provided to all other parties on or before 25 February 2011.
4. The defendant file and serve any amended pleading on or before 22 April 2011, and any other party file any amended reply or amended defence on or before 20 May 2011.
5. At the trial of the matter, expert evidence in chief regarding the floor of the bakery premises the subject of the proceeding and any consequential damages claim by the defendant, is to be by means of a written report by the expert with cross-examination. No additional evidence in chief will be permitted except by leave of the Court.
6. Where more than one party has retained an expert regarding the floor of the bakery premises the subject of the proceeding and/or any consequential damages claimed by the plaintiffs, the respective experts in a discipline are to meet on or before 18 March 2011 to discuss their reports. On or before 8 April 2011 the experts are to complete a joint report setting out points of agreement and points of disagreement and the reasons for any disagreement. No instructions are to be given by a party retaining an expert regarding the content of their reports and/or the meeting of experts or the content of the joint report.
7. There will be no order as to the costs of adjournment of the trial.
8. There will be no order regarding the plaintiffs’ and the defendant’s costs of the application.
9. The plaintiffs and the defendant are ordered to jointly pay the third party’s costs of and incidental to the application to be agreed, or failing agreement to be assessed.
CATCHWORDS:
PROCEDURE – adjournment of trial – further disclosure – inspection – directions – costs – where plaintiffs sued for failure of floor in premises purchased from defendant – where plaintiffs had employed another to repair damage to floor – where employment of other person not pleaded or disclosed until after the trial was set down for hearing
Uniform Civil Procedure Rules 1999 r 216, r 217
COUNSEL:
U Wellner (sol) for the plaintiffs
A Sinclair for the first defendant
G Rigby (sol) for the third party
SOLICITORS:
Wellners Lawyers for the plaintiffs
Schultz Toomey O’Brien Lawyers for the first defendant
Rigby Lawyers for the third party
These reasons are in respect of an application filed by the first defendant on 5 November 2010 for orders:
§that the plaintiffs provide further and better discovery of documents by delivering a supplementary list of documents within 14 days;
§that the first defendant have access to the plaintiff’s bakery premises which are the subject of the claim at a time and date convenient to the first defendant and the plaintiff and to the first defendant’s expert, such date to be no later than 1 December 2010;
§that the trial of the action set for 14 February 2011 be adjourned and that the plaintiff pay the defendant and the third party’s costs thrown away by reason of the adjournment on an indemnity basis;
§that the plaintiff pay the first defendant’s costs of and incidental to this application to be agreed or failing agreement, to be assessed;
§directions for the future conduct of the action.
On 23 April 2010 the plaintiffs filed a notice of discontinuance against the second defendant. In these reasons I will refer to the first defendant as the defendant.
This trial of the proceeding had been set down for three days commencing 14 February 2011 after the parties filed a request for a trial date on 10 September 2010. A certificate of readiness had been signed by the plaintiff on 31 March 2010, by the defendant on 27 April 2010 and by the third party on 7 September 2010.
I have vacated the trial dates and set the trial down for three days commencing 11 July 2011.
Regarding the balance of the application it is appropriate to briefly set out a background. The first plaintiff operates a bakery. For present purposes it is sufficient to say that the plaintiffs purchased commercial premises in which to operate the bakery from the defendant. The plaintiffs claim the defendant provided a 3 year guarantee/warranty about the suitability of the characteristics of the floor of the premises for the first plaintiff’s purposes, the floor failed and the defendants brought in the third party to fix it. The floor failed again within the three year period. Despite requests, the defendant did not honour the warranty and ultimately this proceeding was commenced.
The present application has its own background. It had been arranged by the defendant’s solicitor with the plaintiffs’ solicitor for an expert retained by the defendant to inspect the floor on 6 September 2010. On 3 September 2010 the plaintiffs’ solicitor cancelled the arrangement. At that time he disclosed that the plaintiff had made a claim against another person, one Miller, regarding rectification work Miller had done on the floor. It appears the plaintiffs say Miller had been engaged when the defendant did not respond to the repeated failure of the floor. He disclosed a mediation was arranged for 10 October 2010 and that only about 5m² of the original flooring was in the state it was after being rectified by the third party. The defendant’s solicitor had no prior knowledge of these matters. It was not pleaded nor did disclosure reveal it. By letter dated 3 September 2010 to the plaintiffs’ solicitors, he requested all documents regarding the work done by Miller on the floor and requested a supplementary list of documents including the pleadings and documents relating to Miller, the claim against him and the damages sought against him. He advised the defendant would like the opportunity to have their expert conduct an inspection of the floor as a matter of urgency and asked for a date.
He wrote again on 9 September 2010 in the form of a rule 444 UCPR letter stating that the defendant wished to inspect the floor immediately and requiring further and better disclosure of documents relating to the rectification work.
On 15 September 2010 the plaintiffs’ solicitor responded. He requested to know when it would be convenient to the defendant and its expert to inspect the premises so he could arrange for the premises to be available as soon as possible. He also informed regarding further and better disclosure that he would forward a copy of their file by express post. He did this the following day.
The plaintiffs’ damages claimed against the defendant included a component of consequential economic loss. An amount and the basis upon which it was calculated was in the statement of claim. By letter of 6 October 2010 the plaintiffs’ solicitor sent to the defendant’s solicitor a detailed report by accountants regarding the consequential economic loss. That provoked a further rule 444 letter dated 8 October 2010 requiring specified documents relating to the plaintiffs’ claim for consequential losses.
The defendant’s solicitor seems to have overlooked the offer in the plaintiffs’ solicitor’s letter of 15 September 2010 to make the premises available for early inspection, for he did not respond. He again sought inspection in the rule 444 letter he wrote on 8 October 2010.
On 13 October 2010 the plaintiffs’ solicitor wrote to the defendant’s solicitor advising that the financial records were voluminous and that they would be made available for inspection. Disclosure would be by production of the documents pursuant to rule 217 UCPR. He also advised that a supplementary list of documents was being prepared which would refer to the financial records of the plaintiffs. This was provided under cover of a letter dated 21 October 2010. It included the documents in the proceeding against Miller. It was filed on 8 November 2010.
On 12 November 2010 the defendant’s solicitor wrote to the plaintiffs’ solicitor regarding the present application indicating the defendant would be prepared to enter into a consent order which would allow the defendant and its expert access to the plaintiffs’ premises, allow the defendant to have full and unfettered access to all of the plaintiffs’ records so that a forensic accountant could prepare a report and remit the proceeding to the Magistrates Court for trial. In response, the solicitor for the plaintiffs prepared and forwarded a draft request for consent order of the registrar to that effect. However on 17 November 2010, the defendant’s solicitor advised that the present application would proceed because the solicitor for the third party did not agree to the terms of the consent order.
It seems to me the adjournment of the trial was contributed to by the late disclosure by the plaintiffs’ solicitor of the involvement of Miller by the plaintiffs and also by the failure of the defendant’s solicitor to immediately respond to the invitation to arrange inspection of the floor in the plaintiffs’ solicitor’s letter of 15 September 2010. Once the defendant’s solicitor was made aware of Millers involvement, the plaintiffs’ solicitor responded promptly to requests for information, documents and the request for an urgent inspection. Likewise regarding the material supporting the plaintiffs’ claim for consequential losses. The lapse of time between mid September and mid November together with the intervention of Christmas, arguably imposed too tight a timetable to retain the trial listing. But for the waste of that time, in all probability the trial could have proceeded as listed. The vacated trial dates are approximately three months hence. I will not make any costs order regarding the adjournment of the trial.
I order as follows:
1. The plaintiffs make further disclosure to the defendant and the third party by production of documents in accordance with rules 216 and 217 UCPR of all documents which are directly relevant to the claim for consequential losses as assessed in the report of David Clout and Associates dated 26 August 2010. These should include the appendices referred to in the said report of David Clout and Associates, and any other sources of information. Production and inspection is to occur on or before 28 January 2011.
2. The defendant and the third party be provided with access to the plaintiffs’ bakery premises the subject of the claim at a date and time convenient to the parties and any retained experts on or before 28 January 2011.
3. Any report prepared by an expert retained by the parties is to be provided to all other parties on or before 25 February 2011.
4. The defendant file and serve any amended pleading on or before 22 April 2011, and any other party file any amended reply or amended defence on or before 20 May 2011.
5. At the trial of the matter, expert evidence in chief regarding the floor of the bakery premises the subject of the proceeding and any consequential damages claim by the defendant, is to be by means of a written report by the expert with cross-examination. No additional evidence in chief will be permitted except by leave of the Court.
6. Where more than one party has retained an expert regarding the floor of the bakery premises the subject of the proceeding and/or any consequential damages claimed by the plaintiffs, the respective experts in a discipline are to meet on or before 18 March 2011 to discuss their reports. On or before 8 April 2011 the experts are to complete a joint report setting out points of agreement and points of disagreement and the reasons for any disagreement. No instructions are to be given by a party retaining an expert regarding the content of their reports and/or the meeting of experts or the content of the joint report.
7. There will be no order as to the costs of adjournment of the trial.
8. There will be no order regarding the plaintiffs’ and the defendant’s costs of the application.
9. The plaintiffs and the defendant are ordered to jointly pay the third party’s costs of and incidental to the application to be agreed, or failing agreement to be assessed.
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