Growthbuilt Pty Ltd v Bedrule Pty Ltd - [2024] NSWSC 977

Supreme Court

New South Wales

Medium Neutral Citation: Growthbuilt Pty Ltd v Bedrule Pty Ltd [2024] NSWSC 977
Hearing dates: 07 August 2024
Date of orders: 07 August 2024
Decision date: 07 August 2024
Jurisdiction: Equity - Technology and Construction List
Before: McGrath J
Decision:
Leave to rely on expert report as evidence refused (see [20])

Catchwords:
EVIDENCE — procedure — expert evidence — r 31.28 of Uniform Civil Procedure Rules 2005 (NSW) — application by plaintiff for leave to rely on expert report served late — whether exceptional circumstances exist — HELD — exceptional circumstances not established by plaintiff

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) r 31.28
Civil Procedure Act 2005 (NSW) ss 56, 57, 58

Cases Cited:
Dolores Correa and The Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 266
Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440

Category: Procedural rulings
Parties: Growthbuilt Pty Ltd (Plaintiff)
Bedrule Pty Ltd (First Defendant)
Samuel Turnbull (Second Defendant)
Glen O’Brien (Third Defendant)
Representation:
Counsel:
M Keene (Plaintiff)
R Sud (First, Second and Third Defendants)
Solicitors:
Prilis Solicitors (Plaintiff)
Fielding Robinson (First, Second and Third Defendants)

File Number(s): 2022/00234912
Publication restriction: Nil

JUDGMENT – EX TEMPORE

INTRODUCTION

This is the first day of the three-day trial of these proceedings. The plaintiff has opened its case and read the evidence of its lay witnesses and an expert electrical engineer.
As part of its evidence in the proceedings, the plaintiff now seeks to rely on the report dated 19 July 2024 of another expert, David Madden (Madden report). The Madden report was obtained pursuant to a letter of instruction dated 2 July 2024 from the plaintiff’s solicitor to Mr Madden. The Madden report is relevant to the issue of the costs of the plaintiff in carrying out rectification works.
In the circumstances outlined below, the plaintiff requires leave from the court pursuant to r 31.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

SALIENT FACTS

On 9 August 2022, the proceedings were commenced.
On 10 November 2022, Ball J made consent orders in the proceedings, including that the plaintiff serve its lay and expert evidence in chief by 3 March 2023.
On 10 March 2023, Ball J made consent orders in the proceedings, including that the plaintiff serve its lay and expert evidence in chief by 7 April 2023.
On 19 April 2023, Ball J made consent orders in the proceedings, including that the plaintiff serve the entirety of its lay and expert evidence by 19 May 2023, and also ordered that if the plaintiff failed to comply with that order, then the plaintiff could not serve or rely upon any further lay or expert evidence in chief, without leave of the court.
On 13 October 2023, Ball J made consent orders in the proceedings, including that the plaintiff serve its evidence in reply by 10 November 2023.
On 17 November 2023, Ball J made orders in the proceedings,…

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.

Keep reading for free

Create a free CaseChat account to read Growthbuilt Pty Ltd v Bedrule Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 977
Decision Date: 07 August 2024

CaseChat Overview and Summary

Growthbuilt Pty Ltd, the plaintiff, sought to enforce a contract for the sale of land against Bedrule Pty Ltd, the defendant, in the Supreme Court of New South Wales. The primary dispute involved the enforceability of the contract and the defendant's entitlement to a refund of the deposit paid under the contract. The court had to determine whether the plaintiff was entitled to rely on an expert report that was served late, in accordance with rule 31.28 of the Uniform Civil Procedure Rules 2005 (NSW). The defendant objected to the late filing of the expert report, arguing that it should not be admitted due to the plaintiff's failure to comply with the procedural requirements.

The court considered whether the plaintiff had established exceptional circumstances that would justify the late service of the expert report. It examined the factors relevant to determining whether such circumstances existed, including the degree of fault and whether the late service would cause substantial injustice. The plaintiff argued that there were exceptional circumstances due to unforeseen delays in obtaining the expert's report. However, the court found that the plaintiff had not demonstrated sufficient fault on the part of the expert or that the late service would cause substantial injustice to the defendant. The court held that the plaintiff had not met the threshold for establishing exceptional circumstances under the rules.

Accordingly, the court dismissed the plaintiff's application for leave to rely on the late expert report. The court's decision resulted in the plaintiff being unable to proceed with the expert evidence that was intended to support its claims. As a result, the plaintiff's case was weakened, and the court was unable to make a determination on the merits of the enforceability of the contract or the defendant's entitlement to a refund. The final orders of the court reflected the dismissal of the plaintiff's application and the consequential impact on the proceedings.

Orders