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

[2023] NSWDC 373

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 of that document, Mr Mehndiratta supplied the address for the builder, his telephone number and an email address, [email protected].

6. Subsequently, a legal practitioner, representing the builder filed an amended statement of claim (1 May 2020). A legal practitioner also filed Mr Mehndiratta's affidavit of 30 March 2023, which Mr Mehndiratta has read at the hearing. According to documents on the Court's file, the solicitor filed a Notice of Intention Ceasing to Act on 10 November 2020. A Notice of Ceasing to Act was filed on 17 November 2020.

How the present application arises

7. Case management directions apparent in the Court's file indicated that the evidence for the parties was to be given on affidavit. Apart from the affidavit I have referred to, Mr Mehndiratta prepared two other documents that, although not in proper form, perform the function of an affidavit; although in actuality, they represent an amalgam of assertions and submissions. They are respectfully Exhibits A and B. Exhibit B is titled "Lay and expert reply by Robust Builders". I will refer to exhibit B again later.

8. The case - which had originally been given an estimate of a day plus - is now in its third day. Mr Mehndiratta, carrying on the proceedings for the builder, has just completed his evidence.

9. A feature of the cross examination of Mehndiratta, undertaken by Mr Lambley, the solicitor appearing for the owners, was his lack of responsiveness to evidence relied upon by the owners, in respect to any challenge or contradiction to that evidence. Mr Lambley is a solicitor from the firm Michael Vassili Lawyers, which represents the owners in this proceeding.

10. Specifically, in cross examination Mr Mehndiratta's attention was drawn to parts of the affidavit of Mr Pankaj Barai (8 November 2022) who is the first defendant and first cross claimant, and an Expert Builder's report of Mr O'Donnell, of the firm Canberra Sydney Inspections.

11. In partial answer, Mr Mehndiratta generally asserted that he had not seen this evidence or, at least, had not seen it recently. He did, however, assert that he had seen 16 pages of Mr O'Donnell's report, but that some part of what he received was blank and apparently had a series of exclamation marks. I took him to accept that he understood that the version of the report he asserted that he had received was incomplete. He made mention of being overseas. Then, in 're examination', Mr Mehndiratta said that he had only seen those 16 pages from Mr O'Donnell's report last week. He also asserted that he had only seen Mr Barai's affidavit (and that of the second defendant and second cross claimant, Ms Mahjabeen) only two days ago.

12. In the light of this evidence, Mr Lambley tendered an email dated 11 November 2022 (Exhibit 2.1). The email addressee was identified as 'Robust Builders Pty Ltd (Plaintiff)'. The content of the email itself indicated that the email was addressed to Mr Mehndiratta personally.

13. The content of the email indicated that Mr Lambley, the author of the email, attached the affidavits of Mr Barai and Ms Mahjabeen. In relation to Mr O'Donnell's report, Mr O'Donnell was not referred to by name, but instead his firm (Canberra Sydney Inspections) was. The relevant part of the email referred to that firm's report. It also contained the following explanation:

"We note that due to the size restrictions, the expert report is available to be accessed via the following Dropbox link.

[The link was then indicated.]

Should you have questions or issues, please do not hesitate to contact us."

14. Mr Mehndiratta asserted that he did not see this email. It appeared to be put to him that the only way that he could have seen any part of Mr O'Donnell's report was to use the link that was contained in the email.

15. Mr Mehndiratta then proceeded to make assertions that the owners had not complied with directions made by the Court for the service of evidence. He tendered two further documents. The first is a partial and very incomplete printout of directions made online in the case (exhibit D) and another was an earlier affidavit by Mr Mehndiratta, sworn on 28 August 2021 (Exhibit E, which was the subject of a s 136 Evidence Act1995 (NSW) limitation). From the Court's file, that affidavit was prepared by him in relation to a notice of motion dated 20 August 2021. This was a motion brought by the owners whereby they sought to have the proceeding dismissed for want of dispatch.

Previous court directions for service of evidence

16. My cursory perusal of the file indicates that part of the voluminous content of the file is attributable to interlocutory arguments regarding a need for a handwriting expert and a notice to produce for the builder to produce a contract and a motion for dismissal of the proceeding for want of dispatch. There have also been numerous directions.

17. Other directions, or requests, for directions, contained on the Court file which relate to the service of the evidence in the main proceeding (as distinct from service of evidence relating to interlocutory motions) are as follows:

1. On 3 December 2020, consent orders included (order 1) that the defendants file and serve all lay and expert evidence (in response to both the plaintiff’s and defendants' respective claims) by 17 December 2020;

2. On or about 28 April 2021, consent orders were made for the service of evidence. This included the defendants serving their evidence by 8 July 2021;

3. On 23 June 2021, Mr Lambley emailed the District Court in which he referred to the parties' agreement, amongst other things, for directions for the service of evidence. This included a direction for the defendants to file and serve lay and expert evidence in response to the plaintiff’s claim and their cross claim by 3 September 2021;

4. On 1 July 2022, the Court issued a formal notice of directions made on 1 July 2022. One of those notices was sent to Mr Mehndiratta with the email address [email protected]. Although the main order that date was vacation of the hearing date scheduled for 28 July 2022, one of the directions was for the owners to file and serve evidence in reply and evidence in chief for the cross claim before 31 August 2022.

5. On 2 February 2023, Mr Lambley emailed the District Court seeking a direction that the builder file and serve evidence in reply, including expert evidence, by 16 March 2023. The copy of this email on the Court's file identified the plaintiff's email address 'Robust Builders Pty Ltd (plaintiff)'.

18. By this list, I do not mean to be exhaustive in cataloguing all directions made on the subject of service of the evidence in the main proceeding. I note also that at a point on the luncheon adjournment on day 3, through my associate, Mr Mehndiratta and Mr Lambley were given access to hard copies of these orders or communications. I understand that neither of them sought copies of them for the purposes of argument.

19. I note that in hard copies of the correspondence between the parties that was, for one reason or another copied to the Court, Mr Mehndiratta's name also bore the email address [email protected].

The owners' additional correspondence adduced on the application and their submissions in opposition to the application

20. Having regard to the basis, or bases for the application, I adjourned the hearing of Mr Mehndiratta's application to enable Mr Lambley some time to consider it and, if desired, to prepare evidence in response.

21. Upon resumption, Mr Lambley repeated his submission that the lay and expert evidence of the owners had been brought to Mr Mehndiratta's notice, by email. This submission was said to be supported by the following:

1. Another version of Exhibit 2.1 is Exhibit 2.2. Whereas on the former hard copy of exhibit 2.1, the builder's email address appears as 'Robust Builders Pty Ltd (Plaintiff)', on the hard copy of Exhibit 2.2, the email address is '[email protected].' In short, the email addresses are one and the same. In this respect, Mr Lambley asked the Court to find (as a matter of common knowledge for the purposes of s 144 of the Evidence Act 1995 (NSW)) that where an email address is used often enough on a user's Apple iPhone, over time, it might bear a slightly different address which is a paraphrase or abbreviation of the full email address on the user's system or phone;

2. Mr Mehndiratta had sent and received many documents throughout the course of the proceeding, including this final hearing, using that email address;

3. In exhibit B, which bore the title 'Lay and Expert Evidence Reply by Robust Builders', on the last page that (prior to the annexures), there appeared the typed sentence (which, on exhibit B, is struck out to accord with an evidentiary ruling I made):

"Having one building report prepared after four years is null and void as they (i.e. the owners) failed to comply with Court orders in time as well as having living in the Property for four years with family and small daughter."

4. Exhibit B was emailed to the Local Court at Parramatta but copied to Mr Lambley on 25 March 2023 (Exhibit 3). I observe that the same email address appeared on this email as it had on Exhibit 2.2;

5. There was no other "building report prepared" other than Mr O'Donnell's report;

6. From the bar table, Mr Lambley said that his firm did not supply a hard copy of Mr O'Donnell's report (which apparently ran to 280 pages). The only way that Mr Mehndiratta could have accessed that report (or the 16 pages that he accepted that he had seen) was to have utilised the link that was sent to him by the email on 11 November 2022 (Exhibits 2.1 and 2.2).

7. Mr Lambley also indicated that he himself had utilised the link and it clearly indicated the report in all its pages.

22. Mr Lambley made some additional submissions as well that went beyond a submission that Mr Mehndiratta did in fact see the evidence from the 11 November 2022 email. This was that with the exception of a period in which the builder was legally represented, it was Mr Mehndiratta who had (until recently, de facto) carried on the proceeding for the builder with the same email address. Secondly, if his evidence of seeing only 16 pages of Mr O'Donnell's report was accepted, he could and should have taken advantage of the invitation extended to him on the face of the email and raised as an 'issue' the incomplete nature of the copy of Mr O'Donnell's report appearing through the link. He did not do so.

Mr Mehndiratta's submissions in reply

23. Mr Mehndiratta was given the opportunity to make submissions in reply after Mr Lambley. Mr Mehndiratta disputed that the email which appears at exhibit 3 proved that he received the owner's lay and expert evidence.

Consideration

24. The premise underpinning the application for adjournment is that Mr Mehndiratta had not seen the two lay affidavits or a full version of Mr O'Donnell's report.

25. It appears that at least since late 2020, Mr Mehndiratta has in a practical sense carried on this proceeding for the builder; notwithstanding that his legal capacity to do so was only formalised at the hearing. It is also apparent that he has used the email address '[email protected]' as his means of electronically communicating with the Court and also the solicitors for the owners.

26. I accept the owner's submission that this email address is one and the same as the email address that bears the description (on the owner's solicitor's email system) 'Robust Builders Pty Ltd (Plaintiff)'.

27. I find, on 11 November 2022, all of the owner's lay and expert evidence was served upon that email address for the builder.

28. Having regard to Mr Mehndiratta's evidence (under affirmation) in Court that he had at least read part of Mr O'Donnell's report and the sentence in Exhibit B that I have referred to, I find, further, that he did so by utilising the link that appeared in the email of 11 November 2022.

29. I am comfortably satisfied that the lay affidavits of the owners and the report of Mr O'Donnell was served on the builder. To the extent that Mr Mehndiratta gave evidence to the contrary, I find that he was mistaken in his recollection. I also find that Mr Mehndiratta served Exhibit B on 25 March 2023.

30. Whether or not Mr Mehndiratta actually availed himself of the opportunity to read any of the owner's evidence is not to the point. Whether or not the version of Mr O'Donnell's report that he was able to access was full or incomplete was also not to the point. I agree with the owners’ submission that it was incumbent upon Mr Mehndiratta and an obvious expedient was that if the report that he accessed was incomplete, he could have asked the owners’ solicitor to supply him with a hard copy. The Court expects that all parties, even those self-represented, will through the course of litigation, take the necessary steps to help themselves.

31. There is no proper factual basis for an adjournment. It is unnecessary, therefore, to consider discretionary matters for or against an adjournment, subject to a qualification. If, as Mr Mehndiratta recalled, he saw Mr O'Donnell's report a week ago. Mr Mehndiratta had the opportunity, when appearing before me, to add to the list of housekeeping matters to be determined prior to the commencement of the hearing, that he had only just seen Mr O'Donnell's report (whether wholly or partly), and that he could not proceed to commence the hearing as he would need time to prepare a response to it.

32. Mr Mehndiratta's application for further time to respond to the owners' evidence is refused. So too, his application for an adjournment is refused.

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Amendments

15 September 2023 - Corrected formatting and paragraph numbering.

Decision last updated: 15 September 2023