Robust Builders Pty Ltd v Barai

[2023] NSWDC 371

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Robust Builders Pty Ltd v Barai & Anor [2023] NSWDC 371

Hearing dates:

22 August 2023

Date of orders:

22 August 2023

Decision date:

22 August 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 19

Catchwords:

CIVIL PROCEDURE – application by director of plaintiff to carry on proceeding – where plaintiff previously legally represented – where hearing has been adjourned on previous occasion – whether requirement to acknowledge prospective liability to pay some or all of the company’s costs should be waived

Legislation Cited:

Civil Procedure Act 2005 (NSW) rr 14, 98

Uniform Civil Procedure Rules 2005 (NSW) rr 7.2, 7.36

Cases Cited:

May v Christodoulou (2011) 80 NSWLR 462

Category:

Procedural rulings

Parties:

Robust Builders Pty Ltd (plaintiff/cross-defendant)
Mr P Barai (defendant/cross-claimant 1)
Mrs F Mahjabeen (defendant/cross-claimant 2)

Representation:

Mr D Lambley (solicitor) for the defendants/cross-claimant
Mr R Mehndiratta (as director of and for the plaintiff/cross-defendant)

File Number(s):

2018/00259451

Publication restriction:

Nil

JUDGMENT

1. This proceeding concerns a contest between a builder or building company suing for invoices which are said to be unpaid (and the value of equipment not restored) under a written contract entered into with the owners in 2016 and the owners cross claim for the damages associated were allegedly incomplete and defective works.

2. The proceeding commenced nearly five years ago to the present day.

3. The proceeding was fixed for hearing in the May 2023 sittings of the Parramatta Civil List. On 8 May 2023, the hearing was vacated, and the matter was again fixed for hearing with an estimate of a (single) day plus in the August 2023 sittings.

4. Last week, at the call over of the hearings for the August 2023 Civil Sittings in Parramatta, a director of the builder, Mr Mehndiratta purported to appear. I explained to him that he would need to file an affidavit that complied with r 7.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Indeed, I arranged, through my Associate, to provide him with a hard copy of that rule.

5. On or about 18 August 2023, Mr Mehndiratta purportedly provided that affidavit. However, omitted from that affidavit was the statement required by sub-rule 7.2(2)(a)(iv), namely that:

"the director is aware that he or she may be liable to pay some or all of the costs of the proceedings".

6. I note, however, that there is nothing in r 7.2 which would empower the Court to actually make a costs order against the director, even though it is a procedural precondition to a director carrying on the proceeding for the company. There is, however, a power under s 98(1) of the Civil Procedure Act 2005 (NSW) to order costs against a non-party: see the discussion in May v Christodoulou (2011) 80 NSWLR 462.

7. Virtually, at the commencement of today's hearing, I asked Mr Mehndiratta whether he was verbally prepared to acknowledge that he may be liable to pay some or all of the costs of the proceeding. He…