Robust Builders Pty Ltd v Barai & Anor (No.4)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Robust Builders Pty Ltd v Barai & Anor (No.4) [2023] NSWDC 374

Hearing dates:

5 September 2023

Date of orders:

5 September 2023

Decision date:

05 September 2023

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 25

Catchwords:

CIVIL PROCEDURE – applications made in day 10 of hearing of building dispute – director carrying on proceeding for builder - builder’s application for order enabling access to a building expert (to be appointed by the builder) to inspect property and (impliedly) to report on it – builder’s application for Court orders for individuals to attend to be cross-examined by builder – discretionary considerations

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58

Uniform Civil Procedure Rules 2005

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

EX TEMPORE REASONS FOR Judgment

Introduction

1. Today is day 10 of a hearing that commenced on 22 August 2023. The litigation concerns a dispute between a building company (the plaintiff) against the owners (the defendants and cross-claimants) of a property for the demolition of an existing dwelling and construction of a two storey dwelling at Seven Hills (the ‘Property’) under a contract for residential works entered into in 2016. The builder ceased performing those works in July 2017.

2. In a nutshell, the builder brings a claim for unpaid invoices. The owners partly defend that claim, and bring their own cross-claim for what they say are incomplete works and defective works on the property.

3. A director of the plaintiff, Mr Mehndiratta has carried on this proceeding for the plaintiff. He has done so, in a practical sense, since November 2020, even though he only provided the prescribed affidavit at the outset of the hearing.

4. Literally overnight (at 12:22am), he emailed to the Court five separate notices of motion seeking specific relief. In substance, his applications are: first (MFI 58), for the Court to make an order to enable a building expert he would wish to appoint to inspect the Property; and the second, is for the Court to make orders permitting Mr Mehndiratta “to cross-examine” a range of persons who have not presently given evidence. Those persons are: Hirai Barai (MFI 61), Nick Blaker (MFI 59), Daniel Lambley (MFI 62) and Melanie Holt (MFI 60). In the supporting affidavits attached, respectively, to each of the motions, Mr Mehndiratta asserts that each of the orders is ‘crucial for the just determination of the issues in the proceedings’ and is ‘in the interests of justice’.

5. Mr Lambley, the solicitor appearing for the owners (and one of the aforesaid proposed witnesses that Mr Mehndiratta wants to cross-examine), opposes all of these applications

6. The procedural context is important. It is sufficient to observe that:

1. the plaintiff commenced this proceeding in August 2018. When the plaintiff filed its…