Robust Builders Pty Ltd v Barai & Anor (No.3)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Robust Builders Pty Ltd v Barai & Anor (No.3) [2023] NSWDC 373
Hearing dates:	22-24 August 2023
Date of orders:	24 August 2023
Decision date:	24 August 2023
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 32
Catchwords:	CIVIL PROCEDURE – application to adjourn to allow party to prepare further evidence in reply – application opposed – discretionary considerations
Legislation Cited:	Evidence Act 1995 (NSW) ss 136, 144
Cases Cited:	Nil
Texts Cited:	Nil
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

Background

1. The plaintiff applies for an adjournment of this hearing. The purpose of the adjournment is to provide him with the opportunity of preparing evidence in reply to the lay and expert evidence relied upon by the owners. The owners oppose the application.

2. The circumstances surrounding this application are as follows. This proceeding, which features a builders claim against owners and an owners’ cross claim for alleged incomplete and effective works relates to a construction contract entered at some point in the latter half of 2016. The proceeding commenced on 23 August 2018 - now over five years ago. The hearing was scheduled to commence in the May 2023 sittings at Parramatta, but that hearing date was vacated on 8 May 2023 and the matter was re-scheduled to commence in the Court’s August 2023 sittings. I note that on 8 May 2023, Mr Mehndiratta appeared for the builder. On the same date, the Court made an order granting leave for the owners’ building expert, Mr Paul O'Donnell, to give evidence by audio visual link. An early hearing date (apparently in June 2022) was also vacated.

3. The hearing came before me as the Judge presiding over the Parramatta Civil List in its August 2023 sittings of the District Court. There was a callover of this matter, along with other hearings, on 14 August 2023, at which Mr Mehndiratta appeared for the builder. On that day, and on the following day, issues were identified regarding Mr Mehndiratta's authority to act for the plaintiff and an application he wished to raise about calling a person as a witness. No other impediment was identified as to the commencement of the case.

4. I dealt with the two matters raised in that callover. Mr Mehndiratta provided an affidavit of his authority. I dispensed with the requirement that he state his awareness or his potential liability to some or all of the costs ordered against the builder. I also rejected an application by Mr Mehndiratta to call another person to give evidence orally.

Periodic legal representation of the builder

5. I note, also, that the builder was previously represented by a solicitor. However, in the originating process, the Statement of Claim was filed by Mr Mehndiratta. On the cover page…