Robust Builders Pty Ltd v Barai & Anor (No.2)

The case of Robust Builders Pty Ltd v Barai & Anor (No.2) involved a dispute between a builder and a homeowner concerning the quality of construction work. The matter was before the court on an application by the builder to call a witness to give oral evidence. The builder had previously been directed in case management orders to provide its evidence by way of affidavit, rather than oral testimony. The homeowner opposed the application, arguing that the builder should adhere to the prior directions. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the builder could deviate from the prior case management directions that required evidence to be given by affidavit. The court was required to consider the discretionary factors relevant to the decision, including the need to ensure that justice is done between the parties, the fairness of the application, and any prejudice that might result to either party if the application were granted or refused. The court also needed to assess the potential impact of the builder's application on the efficiency and expeditious resolution of the proceedings.

In determining the matter, the court noted that while the general preference is for evidence to be given by affidavit, there are circumstances in which a party may be permitted to deviate from this requirement. The court considered the builder's reasons for seeking to call the witness to give oral evidence, including the potential for the witness to provide clarification or expand upon matters raised in the affidavit. The court also took into account the homeowner's opposition to the application and the potential for further delay and expense if the application were granted. Ultimately, the court found that the builder's application should be refused, as the interests of justice did not require a departure from the prior case management directions.

The final orders of the court were that the builder's application to call the witness to give oral evidence be refused. The court emphasised the importance of adhering to case management directions and the need to ensure that proceedings are resolved efficiently and expeditiously. The court also noted that any failure to comply with case management directions may result in adverse consequences for the party seeking to deviate from those directions.