Hossain v Unity Grammar College Ltd and Ors (2)
[2018] NSWSC 1206
•24 July 2018
Supreme Court
New South Wales
Medium Neutral Citation: Hossain v Unity Grammar College Ltd and Ors (2) [2018] NSWSC 1206 Hearing dates: 23; 24 July 2018 Date of orders: 24 July 2018 Decision date: 24 July 2018 Jurisdiction: Common Law Before: Campbell J Decision: I will admit as Exhibit 3D1
Catchwords: EVIDENCE – tender of plan - whether plan is final version - difference between plan and the construction - whether plan referred to in the contract - relevant and authentic - admissible Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Delwar Hossain (Plaintiff)
Unity Grammar College Ltd (First Defendant)
Binah Projects Pty Ltd (Second Defendant)
Five Star (Sixth Defendant)
Elgas Limited (Seventh Defendant)Representation: Counsel:
Solicitors:
A Black SC with E E Welsh (Plaintiff)
D A Lloyd (First Defendant)
M Fordham SC with N Condylis (Third Defendant)
P Cavanagh SC with J Tat (Sixth Defendant)
P Morris SC (Seventh Defendant)
R O’Neill (Third Cross Defendant on first cross-claim)
Young & Muggleton (Plaintiff)
HW Ebsworth (First Defendant)
Holman Webb (Third Defendant)
McCabe Curwoods (Sixth Defendant)
Meridan Lawyers (Seventh Defendant)
McDonnell Schroder (Third Cross Defendant on first cross-claim
File Number(s): 2013/401848
EX TEMPORE Judgment
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Mr Fordham of Senior Counsel has tendered a plan entitled “Proposed Unity Grammar School - Hydraulic Services”. It is a two-page document prepared by an organisation named Abacus Engineering Pty Limited.
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The first page contains technical information including a legend and notations for water supply, drainage and gas, amongst other things. The second page is the hydraulic services site plan for the development which purports to show, amongst other things, the line of pipes from an LPG storage tank to various buildings, including stage one buildings, including a canteen and amenities building. From the evidence in the case, I would infer this is a reference to what has been referred to as building D where the explosion, the subject of these proceedings occurred.
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Mr Morris SC objects to the document. Essentially, he does not question its authenticity, but challenges its relevance by arguing that it has not been shown that the plan is either the plan attached to any contract between Mr Fordham client’s insured and the gas fitting company.
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Mr Morris also argues that it has not been shown that this is the final version of the plan that was actually followed in the construction works. He points to, with respect, an obvious difference between what was planned and what was constructed, in as much as the LPG storage tank as shown in the plan is at the very least in a different orientation in relation to the buildings from that actually installed as shown in other evidence.
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Mr Fordham points out that the source of the document is the documents produced under subpoena by Work Safe New South Wales, formerly the WorkCover authority of New South Wales. At the time of the explosion in 2010, according to evidence I have heard, the WorkCover authority conducted an investigation. The person who was originally the lead investigator, Inspector Groll, gave evidence before me yesterday about some aspects of her investigation, and her notebook containing her contemporaneous record of her investigation has been marked MFI 8 and been tendered by Mr Black of Senior Counsel for the plaintiff, although I am yet to rule on its admissibility as I have not heard from all counsel about their attitude to its tender.
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However, on page 62, which was the subject of questioning by different counsel of Inspector Groll (“the Inspector”), there commences what seems to be notes of a conversation between her and Mr Khalil Hatza who by coincidence wore two hats relevant to this case. In the first place he appears to have been at that time the chairperson of the School. In the second case, he was also the directing mind and will of the principal contractor who is Mr Fordham's client’s insured. There was a discussion recorded by the Inspector about the position of the LPG tank and a notation:
“LPG-tank has been moved 2 metres. On the drawings it has been moved.”
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It is also recorded that Mr Hatza signed a copy of a plan and further notation, "[c]opies were given to me". That suggests to me on that evidence that it is possible Mr Hatza handed over two plans, one he had signed and at least one additional copy.
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During the course of her evidence yesterday Mr Black showed the witness a copy of a plan which was marked for identification which apparently had a signature endorsed upon it but Ms Groll could not identify the signature. The copy that has been tendered by Mr Fordham contains no such endorsement, but, as I say, that's explicable having reference to the plural copies, at least at this stage as a possibility.
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I accept that there is force in Mr Morris's objection in relation to whether this plan was the final plan and whether it was the plan referred to in the contract on the admissibility of which I am yet to rule. However that may be, I am satisfied that this was a plan that was provided to the Inspector by and on behalf of the School, who is the first defendant, and that the difference in orientation of the LPG storage tank is explained by what is recorded in the notes that it has been moved. In the circumstances, although at this stage of admissibility being far from convinced that it will prove what Mr Fordham says he hopes to be proved by it, I am of the opinion it is relevant and authentic and therefore admissible.
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Decision last updated: 06 August 2018
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