Owners Strata Plan 58577 v Banmor Development Finance Pty Ltd

[2006] NSWSC 361

CITATION:	Owners Strata Plan 58577 v Banmor Development Finance Pty Ltd [2006] NSWSC 361
HEARING DATE(S):	27/04/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	04/27/2006
DECISION:	Application dismissed with costs.
CATCHWORDS:	EVIDENCE - Expert Evidence - Leave to put on further report after court appointed expert's report under the Uniform Civil Procedure Rules 2005, r 31.33 - Reports of experts obtained before court appointed expert's report - Leave granted to plaintiff for further report and leave to court appointed expert to respond - Plaintiff's application for a further expert report by Hydraulics expert as distinct from Hydrology expert
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 Supreme Court Rules 1970
PARTIES:	Owners Strata Plan 58577 - Plaintiff Banmor Development Finance Pty Ltd - 1st Defendant Pluim Constructions Pty Ltd - 2nd Defendant Ryde City Council - 3rd Defendant
FILE NUMBER(S):	SC 4822/02
COUNSEL:	Mr G Segal - Plaintiff Mr J Ireland QC - 1st and 3rd Defendant Mr G W McGrath - 2nd Defendant
SOLICITORS:	Charles G. Roth & Co Toltz La Hood Tesoriero Henderson Cotter Solicitors by their city agents Turner Whelan Solicitors Pike Pike & Fenwick Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

THURSDAY 27 April 2006

4822/02 OWNERS STRATA PLAN 58577 v BANMOR DEVELOPMENT FINANCE PTY LTD

EX TEMPORE JUDGMENT

1 The present proceedings before the Court concern a claim by the plaintiff arising out of the construction of a substantial building on land adjoining that of the plaintiff.

2 In essence, the complaint is that the first defendant as developer and the second defendant as builder trespassed upon the land of the plaintiff in the course of carrying out that construction and created a nuisance by reason of the effect of water potentially coming onto the land of the plaintiff in consequence of the manner in which the construction was carried out. The third defendant is the relevant municipal authority that, it is asserted, approved a method of construction that would cause potential damage to the property of the plaintiff.

3 The proceedings were commenced in 2002. Each of the parties appointed an expert. On 13 February 2004 an order was made for the appointment of a court expert. Dr Robinson, who was nominated by Engineers Australia, provided his report on 20 September 2004.

4 On 12 November 2004 the plaintiff was given leave to file a further expert report in response to that of Dr Robinson. That report was by Dr Cordery who indicated that there was a difference between hydrology on the one hand and hydraulics on the other and raised doubts with respect to Dr Robinson's report in that there was insufficient determination of pre-development and post-development velocity times depth products, the suggestion by him being that Dr Robinson had not considered the way in which the water flowed over the land.

5 An application was made before Justice Campbell by the plaintiff as a result of Dr Cordery's distinction between hydrology and hydraulics for leave to put on a further report by an hydraulics engineer. Justice Campbell found that an insufficient case had been made out in relation to the grant of leave.

6 For that further report, leave was necessary under the Uniform Civil Procedure Rules 2005, r 31.33 which provides that except by leave of the court, the party to proceedings may not adduce evidence of any expert on any question arising in proceedings if an expert has been appointed under that Division in relation to that question. That Division relates to the appointment of experts by the court. In consequence of the court's appointment of Dr Robinson, leave was required.

7 His Honour was not satisfied that the criticisms raised by Dr Cordery were sufficient to justify a further report by a then unidentified hydraulics expert.

8 The application before the court today is for leave under the rule for the reception of a report by an identified hydraulics expert, Stephen Wyllie. He has prepared a report dated 3 April 2006.

9 There is some force in the submission made by Mr Segal on behalf of the plaintiff that the doubt having been raised by Mr Cordery, and now confirmed by Mr Wyllie, the court should have the further report before it for otherwise it might be dealing with an erroneous position.

10 On the other hand, there is before the court Dr Cordery's report and Mr Segal is armed with Mr Wyllie's report and Dr Robinson will be available for cross-examination.

11 The primary consideration under the Civil Procedure Act 2005, s 56(1) and the rules of court, including, of course, the rule to which I have referred, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Uniform Civil Procedure Rules 2005, r 31.33 is couched in a way that indicates that prima facie once a court expert has been appointed, other expert reports ought not to be tendered. The position differs from that which existed under the old Supreme Court Rules 1970, Pt 39 r 6(a) in operation until 1 March 2000. It allowed a party to adduce evidence from one further expert after a court appointed expert had made a report.

12 There will, no doubt, be circumstances in which it is appropriate to grant leave. But in a case that has taken so long, and is still not in a position to be set down for trial, where Dr Robinson has been given leave to file a response to Dr Cordery’s report, to grant leave to put on yet another expert's report is, in my view, unjustified.

13 Like Justice Campbell, I am not convinced that a sufficient case has been made out in relation to the grant of leave under the Uniform Civil Procedure Rules 2005, r 31.33. I therefore dismiss the notice of motion and order the plaintiff to pay the defendants' costs of the motion.

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