Murrells v Johns Lying Group (ACT) Pty Ltd - [2025] ACTSC 37

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…

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.

Continue reading Murrells v Johns Lying Group (ACT) Pty Ltd

Details

AGLC: Murrells v Johns Lying Group (ACT) Pty Ltd [2025] ACTSC 37
Case: [2025] ACTSC 37
Decision Date: 14 February 2025

CaseChat Overview and Summary

The case of Murrells v Johns Lying Group (ACT) Pty Ltd involved an application by the defendant, Johns Lying Group (ACT) Pty Ltd, to inspect the property owned by the plaintiffs, the Murrells. The dispute arose as part of a larger legal matter, and the primary focus was whether the court should compel the plaintiffs to allow an inspection of the property. The matter was heard and determined in the ACT Civil and Administrative Tribunal. The court was tasked with deciding whether an inspection of the property was necessary for resolving the issues at hand and whether such an inspection would serve the purposes of section 5A of the Court Procedures Act 2004 (ACT). The court examined the necessity of the inspection to ensure that it would aid in making a just and fair decision in the matter.

The court's reasoning centred around the necessity of the inspection for resolving the issues in the dispute. The defendant argued that a visual inspection of the property was crucial to understanding certain aspects of the case, and the plaintiffs had previously refused consent for such an inspection. The court had to balance the defendant's need for information with the plaintiffs' right to privacy and property rights. The court concluded that the inspection was necessary for making an informed decision and that a visual inspection would indeed serve the purposes outlined in section 5A of the Court Procedures Act 2004 (ACT). The court determined that the inspection would provide essential information that could not be obtained through other means, thereby facilitating a fair resolution of the dispute.

The court's decision included several orders to facilitate the inspection process. The defendant was granted leave to file an affidavit, and lay witness evidence was to be given by affidavit. The plaintiffs were directed to provide reasonable access to the defendant's legal representative and the expert for the purposes of the site inspection. The inspection itself was scheduled to occur before a specific date, and the parties were required to file and serve any lay evidence in reply by a set deadline. The court also adjusted the listing of the matter in the call-over, vacating the previous date and setting a new date for the hearing. Finally, the plaintiffs were ordered to pay the defendant's costs associated with the application. This comprehensive set of orders ensured that the inspection could proceed as necessary to resolve the dispute fairly and efficiently.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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