Luigi Iacullo v Remly Pty Limited ACN 106 966 278

[2015] NSWSC 2093

Supreme Court

New South Wales

Medium Neutral Citation:	Luigi Iacullo v Remly Pty Limited ACN 106 966 278 [2015] NSWSC 2093
Hearing dates:	10 August 2015
Date of orders:	10 August 2015
Decision date:	10 August 2015
Jurisdiction:	Equity
Before:	Brereton J
Decision:	Leave to adduce further expert evidence denied.
Catchwords:	PROCEDURE – leave to adduce expert evidence in field not previously the subject of directions – where evidence not necessary – where adequate evidence may be alternatively obtained from experts already engaged in the proceedings – where timely directions not sought in relation to class of expert evidence – where trial impending.
Legislation Cited:	(NSW) Uniform Civil Procedure Rules 2005, r 31.19, r 31.24
Category:	Procedural and other rulings
Parties:	Dominic Iacullo (Second Defendant/First Cross-Claimant) Lillian Iacullo (Third Defendant/Second Cross-Claimant) Luigi Iacullo (Plaintiff/First Cross-Defendant) Badminton Investments Pty Ltd (Second Cross-Defendant) IMS Developments Pty Ltd (Third Cross-Defendant) Homeline Construction Pty Ltd (Fourth Cross-Defendant) Michael Murr (Fifth Cross-Defendant) Pacificon Pty Ltd (Sixth Cross-Defendant) MMAI Pty Ltd (Seventh Cross-Defendant) Glad Con Pty Ltd (Eighth Cross-Defendant
Representation:	Counsel: D A Smallbone (Defendants/First and Second Cross-Claimants) M Rosenblatt (solicitor) (Plaintiffs/First and Second Cross-Defendants) J Svehla (Third, Fourth, Fifth, Sixth, Seventh and Eighth Cross-Defendants)   Solicitors: Allsop Glover (Defendants/Cross-Claimants) Somerset Ryckmans (Plaintiffs/First and Second Cross-Defendants) Carroll & O'Dea (Third, Fourth, Fifth, Sixth, Seventh and Eighth Cross-Defendants)
File Number(s):	2007/257623

Judgment (ex tempore)

1. HIS HONOUR: The immediate question is whether the cross-defendants should be granted leave to adduce expert evidence in a field so far not the subject of expert evidence directions in these proceeding – namely, project management – in circumstances where the proceedings have been set down for final hearing commencing on 6 October for some three weeks, an earlier final hearing in June having previously been vacated.

2. Expert evidence directions were previously made in respect of evidence in the field of quantity survey. Regrettably, although the directions sought were that the cross-defendants have leave to serve the evidence of their project management expert by today, the Court is informed that the report is still not available but has been drafted, and that some further time will be required before it will be available. Had it been available, it might have been possible to form a better assessment of the necessity and relevance of evidence in such a field, and the extent of the burden that it would impose on the other parties in responding to it in time for the substantial hearing that is to commence on 6 October.

3. As things stand, I am unconvinced of the necessity of such evidence. If it goes to what is in effect reasonable remuneration for a project management expert, then I am unpersuaded that that does not fall within the sphere of expertise and competence of a quantity surveyor. As I understand it, both the quantity surveyors retained have expressed opinions as to the project management fees that have been charged. It may be that it is not the best evidence that could be adduced in that field, but the parties will not be left without evidence on that subject.

4. I also take into account the numerous guillotine orders that have been made and extended to this point, and also that in Mr O'Brien's affidavit of 3 August 2015, sworn in support of an extension of time so as to permit Mr Murr's affidavit of 30 July to be relied on, he says in paragraph 16(c) that since late June, Mr Murr and his legal advisors have been involved in the briefing of a management expert for the purposes of providing a management report proposed to be served by 7 August.

5. If that has been the case, then it is incomprehensible why, in compliance with (NSW) Uniform Civil Procedure Rules 2005, r 31.19 – it being apparent that a party may seek to adduce expert evidence at trial different from that already covered by directions – directions were not sought pursuant to that rule in late June, or very soon thereafter, given the proximity of the final hearing. While it is just conceivable that had Mr Hobbs' report or an advanced draft of it been available so as to enable the view to be formed that it could be responded to and that it would not unduly enlarge the scope of the case, I might have been of a different view. On the material presently before the Court, there are insufficient grounds for the Court to exercise its discretion to permit yet a further extension of time and a further field of expert evidence, and I decline to do so.

6. The Court by consent orders that:

1. Time for service of the third to eighth cross-defendants' affidavit of Michael Murr sworn 31 July 2015 be extended nunc pro tunc until 31 July 2015.

2. Time for service of the cross-claimants’ lay evidence in reply be extended to 31 August 2015.

3. Time for service of the cross-claimants' quantity surveyor expert evidence in reply be extended to 31 August 2015.

4. Pursuant to UCPR, r 31.24, the quantity surveyor expert witnesses retained by each party confer generally and endeavour to reach agreement on any matters in issue and prepare a joint report specifying matters agreed and matters not agreed and the reasons for any disagreement, such report to be furnished by 24 September 2015.

5. Time be extended for:

1. service by the cross-claimants of a draft index to the court book including the documents contained in exhibit TV-1 served on behalf of the third to eighth cross-defendants but excluding the documents to be exhibited to any of the cross-claimants lay and expert evidence in reply, until 20 September 2015;

2. notification by the cross-defendants to the cross-claimants of any further documents they require to be included in the court book to 14 September 2015;

3. service of the court books, including documents to be exhibited to any of the cross-claimants’ lay and expert evidence in reply to 21 September 2015, such court books to include a clean index and a marked up index showing the documents added to the court books by the cross-claimants which relate to their lay and expert evidence in reply.

6. Time for service of any subpoenas for production be extended so that such subpoenas may be made returnable on 21 August 2015.

7. The proceedings be adjourned to 21 September 2015 at 10 am in the Corporations Judge's directions list.

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Decision last updated: 19 August 2016