Murrells v Johns Lying Group (ACT) Pty Ltd
[2025] ACTSC 37
•14 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Murrells v Johns Lying Group (ACT) Pty Ltd |
Citation: | [2025] ACTSC 37 |
Hearing Date: | 14 February 2025 |
Decision Date: | 14 February 2025 |
Before: | McCallum CJ |
Decision: | (1) Grant leave to the defendant to file in court the affidavit of Robert Kalde sworn 13 February 2025. (2) Pursuant to Rule 6701 of the Court Procedure Rules 2006, direct that lay witness evidence at the hearing will be given by affidavit. (3) Direct the plaintiffs to provide reasonable access to the defendant’s legal representative and the expert engaged by the defendant for the purposes of undertaking a site inspection of the subject property. (4) The inspection of the plaintiffs’ property by the defendant is to take place on or before 21 March 2025. (5) The parties are to file and serve any lay evidence in reply by way of affidavit that they intend to rely upon or before 13 July 2025. (6) The listing of the matter in the listing hearing call-over at 9am on 5 June 2025 is vacated. (7) The matter is listed in the listing hearing call-over at 9am on 17 July 2025. (8) Plaintiffs to pay the defendant’s costs of the Application in Proceeding filed 14 November 2024. |
Catchwords: | CIVIL LAW – CIVIL PROCEDURE – application seeking inspection of property pursuant to r 715 of the Court Procedures Rules 2006 (ACT) – where plaintiffs refuse consent to inspection of the property by the defendant – whether an inspection of the property is necessary for deciding the issues in dispute – whether a visual inspection is likely to serve the purposes of s 5A of the Court Procedures Act 2004 (ACT) |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) r 715 |
Cases Cited: | Smith v Children Australia Inc [2022] ACTSC 310 |
Parties: | Tami Murrells ( First Plaintiff) Kent Murrells (Second Plaintiff) Johns Lying (ACT) Pty Ltd ( Defendant) |
Representation: | Counsel S Onitiri ( Plaintiffs) D Nagle ( Defendant) |
| Solicitors DLA Piper Australia ( Plaintiff) Bartier Perry Lawyers ( Defendant) | |
File Number: | SC 1 of 2024 |
McCALLUM CJ:
EX TEMPORE REASONS (REVISED)
1․The plaintiffs in these proceedings claim damages from the defendant in respect of allegedly defective building works and the cost of rectification of the works. The plaintiffs are the owners of the home at which the works were carried out or incompletely carried out.
2․Before the Court is an application in proceeding filed on 14 November 2024 seeking an order pursuant to r 715 of the Court Procedures Rules 2006 (ACT) for the inspection of the plaintiffs’ property. The application is made on the ground that the proceeding relates to a building defect dispute and the plaintiffs’ property is the subject property. The plaintiffs have refused consent to the defendant to undertake an inspection of the property for the purpose of obtaining an expert report. The defendant contends that an independent expert requires access to the property to carry out an inspection for the purposes of preparing the expert report to respond to and defend the claim brought against the defendant. It is contended that an inspection of the property is necessary for deciding the central issues in dispute in the proceedings concerning the asserted defective works.
3․According to my own research, rule 715 appears to have been considered only once before, in a decision of mine in Smith v Children Australia Inc [2022] ACTSC 310. In that case, I declined to order the inspection but the reasons for that decision were not relevant to today’s application. It was a case in which the plaintiff sought a second inspection of the property for the purposes of retaining a second expert. There was no explanation for there having been two experts retained. In the present case, the request is one which appears, on its face, to be not unreasonable. As I have indicated, the grounds for the application are that the plaintiffs, Mr and Mrs Murrells, have withheld consent for the inspection.
4․Rule 715 confers power to make an order “for the inspection, detention, custody or preservation of property”. The proper approach to the exercise of that power is informed by s 5A of the Court Procedures Act 2004 (ACT), which provides:
(1)The main purpose of the civil procedure provisions is to facilitate the just resolution of disputes—
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
Similar provisions exist in at least New South Wales and probably other jurisdictions. The purpose of such provisions is to remind litigants of their obligation to cooperate with the court in the efficient and inexpensive resolution of proceedings brought by them. Subsection (2) of s 5A provides:
(2)Without limiting subsection (1), the main purpose includes the following objectives:
(a)the just resolution of the real issues in civil proceedings;
(b)the efficient use of the judicial and administrative resources available for the purposes of the court;
(c)the efficient disposal of a court’s overall caseload;
(d)the timely disposal of civil proceedings;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
5․The defendant in the present matter first asked for access to the property for the purpose of an inspection on 16 July 2024. Thereafter, the parties were in dispute about whether that should happen. First, the solicitors for the plaintiffs enquired as to the reason for the inspection. When that was explained, there was a period during which the plaintiffs were overseas. During that time, an inspection was scheduled for 24 September 2024 but that was cancelled by the plaintiffs on short notice, the explanation being that they were distressed at the prospect of any further inspection of the premises. I note in that context that, in a letter dated 7 November 2024 from the solicitors for the plaintiffs to the solicitors for the defendant, it is stated that at least 15 inspections have been conducted by various experts following the identification of the defective works and prior to the completion of the rectification works. Plainly, the large number of inspections will have added to the Murrells’ distress.
6․On the other hand, it follows that many other experts have had the benefit of inspecting the property, a benefit now sought to be denied to the defendant’s expert.
7․Separately, a number of, for want of a better word, “procedural” objections were taken to the proposed inspection. Mr Onitiri, who appears for the plaintiffs, submitted, first, that on the basis of a letter dated 7 August 2024 from the defendant’s solicitor to the plaintiffs’ solicitor, the proposed consulting firm has not yet been engaged. That is said to be because the letter states:
As discussed, and if we are to be engaged, in accordance with the Expert Witness Code of Conduct and the Expert Witness Report that we will provide in this matter, we must conduct our own individual, non-biased, independent, visual inspection of the property …
8․I do not think that is a compelling consideration against ordering the inspection. It is clear enough from the material before me that the firm in question will be retained and, if the present application is successful, will be retained to undertake the inspection.
9․A separate procedural point that was taken was that the particular expert who will conduct the examination has not yet been identified and has not given particular or sworn evidence of any specific need to undertake a visual inspection. In my assessment, however, a visual inspection is likely to serve the purposes of s 5A to which I have referred. It is possible that the expert could achieve the preparation of a respectable expert report without an inspection but I have no doubt that visual inspection will facilitate that process and probably expedite it. In cases of this kind, it is always easier to understand the issues in the proceedings if one has some familiarity with the relevant site.
10․Finally, Mr Onitiri put a powerful submission based on the position of the Murrells. As I indicated during argument, I am not unsympathetic to their distress. The circumstances in which they withhold their consent are that the insurer, who must have indemnified them, has exercised its right of subrogation. It follows, as a matter of well-established insurance law, that the insurer effectively stands in the shoes of the Murrells in the litigation. The defendant has, as against the insurer conducting the litigation, the same defences as it has against the named plaintiffs. The Murrells are the named plaintiffs, while their insurer, standing in their shoes, is conducting the litigation on their behalf.
11․It follows that, while the Murrells’ distress is understandable, it cannot be determinative of the present application. The litigation having been commenced in their names, both they and their insurer are bound by the obligation to help the Court to achieve the objectives of the civil procedure provisions to which I have referred: s 5A(4) of the Court Procedures Act. The proposed inspection will visit a small inconvenience, leaving aside the question of distress, in that it is said that a single inspection will suffice and that it will take about one to two hours. The defendant is prepared to consent to reasonable conditions including that the plaintiffs’ solicitors may be present and that the inspection may be filmed. In all the circumstances, I am satisfied that it is appropriate to order the inspection as sought.
12․Other procedural orders sought by the defendant were not opposed.
Orders
13․For those reasons I make the following orders:
(1)Grant leave to the defendant to file in court the affidavit of Robert Kalde sworn 13 February 2025.
(2)Pursuant to Rule 6701 of the Court Procedure Rules 2006, direct that the lay witness evidence at the hearing will be given by affidavit.
(3)The plaintiffs are to provide reasonable access to the defendant’s legal representative and the expert engaged by the defendant for the purposes of undertaking a site inspection of the subject property.
(4)The inspection of the plaintiffs’ property by the defendant is to take place on or before 21 March 2025.
(5)The parties are to file and serve any lay evidence in reply by way of affidavit that they intend to rely upon on or before 13 July 2025.
(6)The listing of the matter in the listing hearing call-over at 9am on 5 June 2025 is vacated.
(7)The matter is listed in the listing hearing call-over at 9am on 17 July 2025.
(8)The plaintiffs are to pay the defendant’s costs of the Application in Proceeding filed 14 November 2024.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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