Jeffcott v Davesi Construction Group Pty Ltd

[2023] ACTSC 234

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Jeffcott v Davesi Construction Group Pty Ltd

Citation: 

[2023] ACTSC 234

Hearing Date: 

25 August 2023

Decision Date: 

25 August 2023

Before:

McCallum CJ

Decision: 

(1)    Grant leave to the plaintiff to rely on the affidavit of Priyanka Ram affirmed 26 May 2023.

(2)    Grant leave to the defendant to file a supplementary court bundle confined to any further documents from the documents produced by Mr Steve in response to a third party notice that the defendant wishes to rely upon.

(3)    Grant leave to the plaintiff to rely on the supplementary expert report of George Pudja dated 5 July 2023, to the extent that it is an update of the quantification of existing defects and reserve any contest as to whether parts of the report represent new claims, and if so, whether those parts of the report should be admitted to the trial judge.

(4) Dispense with the requirement, if any, under r 213 of the Court Procedures Rules 2006 (ACT) for the plaintiff to join Ms Claire Steve as a party to the proceedings.

(5)    Reserve the costs of the present application to the trial judge.

Catchwords: 

CIVIL LAW – APPLICATION – Application for joinder – application to rely on supplementary expert material – whether it is inappropriate to join a defendant – whether this obligation should be dispensed with – whether the supplementary expert material represents new claims

Legislation Cited: 

Court Procedures Rules 2006 (ACT) r 213

Parties: 

Mark Jeffcott ( Plaintiff)

Davesi Construction Group Pty Limited ( Defendant)

Representation: 

Counsel

J Foley ( Plaintiff)

A Chakrabarty ( Defendant)

Solicitors

Chamberlains Law Firm ( Plaintiff)

Adero Law ( Defendant)

File Number:

SC 532 of 2021

McCALLUM CJ:       

1․These are proceedings between the owner of a property, who holds the property as a tenant in common with a couple and a builder, arising out of the construction of a duplex in the Australian Capital Territory (ACT).

2․The proceedings are listed for hearing to commence on 4 September 2023, just over a week hence.  The application before the Court today is the plaintiff’s application lodged 16 August 2023, seeking the following relief:

1.     Pursuant to rule 213(2) of the Court Procedure Rules 2006, Ms Clare Steve be joined as second defendant to the proceedings.

2.     In the alternative, an order that any requirement that Ms Clare Steve be joined to the proceedings be dispensed with.

3.     An order that the plaintiff be given leave to rely upon the supplementary expert report of George Pudja dated 5 July 2023.

4.     An order that the plaintiff be given leave to rely upon the affidavit of Priyanka Ram dated 30 May 2023.

3․It is convenient to deal first with the question of the affidavit of Priyanka Ram dated 30 May 2023.  That affidavit, although dated 30 May 2023, was filed but unfortunately not served on the defendant.  In the result, the defendant learned of its existence only upon receipt of the court book.  However, the plaintiff has explained that the purpose of the affidavit was to bring together, from a much larger volume of documents consisting of some 13 volumes, those documents the plaintiff would seek to rely upon in the hearing.

4․The 13 volumes were produced in response to a third-party notice issued to Mr Steve, the male owner of the other half of the duplex.  One of the issues in the hearing will be whether Mr Steve was authorised by the plaintiff, Mr Jeffcott, to act as his agent or representative for the purposes of the construction contract with the defendant.

5․Ms Ram’s affidavit consists of only one volume.  The plaintiff has indicated that it contains all of the documents from the 13 volumes that the plaintiff seeks to rely upon in the hearing.  Furthermore, it was indicated by Mr Foley, who appears for the plaintiff, that the purpose of tendering that material was in effect to prove a negative, namely, that contrary to a contention the plaintiff anticipates facing in the proceedings, there is no indication in the documents of parties other than the defendant being responsible for defective works.

6․In any event, following a constructive exchange between counsel appearing today (for which the Court indicates its gratitude), the issue is able to be resolved with a more or less consent position, namely that the plaintiff may have leave to rely on the affidavit and that the defendant will in turn be permitted to provide and rely on a supplementary court book containing any further documents from within the 13 volumes produced by Mr Steve that the defendant would seek to rely upon in the proceedings.

7․The second issue is the question of the supplementary expert report of George Pudja dated 5 July 2023.  The contest in relation to that report is in short that, whereas the plaintiff contends it is a supplementary quantification of the defects addressed in Mr Pudja’s earlier report, together with a small number of items reflecting rectification works undertaken by the owner himself, the defendant contends that the report contains numerous completely new defects or additions beyond Mr Pudja’s first report.

8․Each party provided a table directed to establishing his or its respective position.

9․The nature of the dispute as to whether the report is by way of supplementary or updated quantification of damages of existing defects or rather identifies new defects cannot conveniently be resolved in an interlocutory pretrial application of the present kind.

10․Ultimately, after some debate, the parties accepted that the dispute could conveniently be addressed by reserving that issue for the trial judge on the basis that the plaintiff has leave to rely on the supplementary expert report to the extent that it is truly by way of update in respect of existing defects and that, as to any truly new claim or defect, it will be a matter for the trial judge to determine whether those parts of the report should be permitted to be admitted into evidence.  The trial judge will be better placed at the commencement of the trial to assess the extent of any prejudice to the defendant in permitting new claims, if there be any.

11․The third and probably most difficult issue raised by the application is the question of the joinder of Ms Steve.  The plaintiff’s application included a prayer for relief to join Ms Steve as second defendant to the proceedings in the following circumstances. 

12․First, r 213(a) of the Court Procedures Rules 2006 (ACT) provides that “[i]f a plaintiff seeks relief to which someone else is entitled jointly with the plaintiff, anyone entitled to the relief must be party to the proceedings”.

13․The parties have engaged in correspondence on this issue which may be summarised as follows. 

14․Initially, the plaintiff did not think it was necessary to join Ms Steve notwithstanding the fact that she is a party to the construction contract under which the plaintiff sues in circumstances where the parties are in the process of separating the title of the two adjacent units and it was expected that that separation might be completed before the hearing.

15․As the hearing date approached without the unit title having been separated, the plaintiff renewed the issue in correspondence.  Ms Steve responded that she would obtain legal advice and revert to the plaintiff.  Her position today is that she has appeared represented by the same legal representatives who appear for the defendant builder in the proceedings and that she seeks to be joined. 

16․Upon analysis, however, I am not persuaded that the joinder is sought because she is “someone else who is entitled jointly with the plaintiff” to any of the relief sought by the plaintiff.  Although the plaintiff and Ms Steve are parties to the same construction contract, the relief sought by the plaintiff in the proceedings is confined exclusively to defects on his side of what is presently the same title, but which will probably ultimately become a separate title. 

17․As the argument was developed, it transpired, first, that Ms Steve does appear to be, as Mr Foley contended, more in the camp of the builder than the plaintiff, and secondly, that she does not claim any remedy against the builder but rather seeks to support his case against the plaintiff on the issue to which I have referred, namely, the agency or representative capacity of Mr Steve, her husband, to act for the plaintiff during the construction works. 

18․Ms Steve is plainly on notice of the proceedings and plainly, subject to any leave that might be required and given, could give relevant evidence for the defendant if appropriate.  I do not see the need for her to be joined as a party and indeed, based on my understanding of the issues following the argument today, I think it would be at least inconvenient if not inappropriate. 

19․For those reasons, I am inclined to dispense with the obligation on the plaintiff to join Ms Steve, if indeed r 213 requires that.

20․Accordingly, I make the following orders:

(1)Grant leave to the plaintiff to rely on the affidavit of Priyanka Ram affirmed 26 May 2023.

(2)Grant leave to the defendant to file a supplementary court bundle confined to any further documents from the documents produced by Mr Steve in response to a third-party notice that the defendant wishes to rely upon.

(3)Grant leave to the plaintiff to rely on the supplementary expert report of George Pudja dated 5 July 2023, to the extent that it is an update of the quantification of existing defects and reserve any contest as to whether parts of the report represent new claims, and if so, whether those parts of the report should be admitted to the trial judge.

(4)Dispense with the requirement, if any, under r 213 of the Court Procedures Rules2006 (ACT) for the plaintiff to join Ms Claire Steve as a party to the proceedings.

(5)Reserve the costs of the present application to the trial judge.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 23 November 2023