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

[2023] NSWDC 374

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 Statement of Claim and Amended Statement of Claim, it was legally represented. On the first day of the hearing, when I asked him about the plaintiff’s absence of legal representation, Mr Mehndiratta responded:

“I hired a lawyer around three years ago. He represented me and I don’t have money to pay them, so thing is they owe me more than $300,000 and they can afford a lawyer, but I cant (sic) because they have my money. So, right now, I can apply for the pro bono, but it used to be a lawyer representing me when I was running my business. Now I am not running my business, I’m basically in no position to run my business the way things are happening. So, yes, it used to be a lawyer before.”

These statements were made in a context (T 1-2) where Mr Mehndiratta clearly baulked at the notion that, as a director carrying on the proceeding for the company, he may become liable for some or all of the costs of the proceeding.

2. Procedural directions have been made, primarily, by the Judicial Registrar, that the evidence of the parties is to be given by affidavit.

3. At the hearing, Mr Mehndiratta read his affidavit of 30 March 2020 (also prepared when the plaintiff was legally represented) as well as another (effectively) witness statement of 8 October 2019 (Exhibit A) and evidence in reply (Exhibit B)

4. The defendants read affidavits from the owners, Pankaj Barai (8 November 2022), Fahima Mahjabeen (7 November 2022) and tendered an expert report of a building expert, Mr Paul O’Donnell of the firm called ‘Canberra Sydney Inspections’ dated 26 October 2022 (Exhibit 4). Mr O’Donnell’s report was prepared following a site inspection he conducted of the Property on 15 September 2022.

5. In an earlier interlocutory ruling I gave during the hearing, which I will return to, I determined that contrary to Mr Mehndiratta’s assertion that he was not served with this evidence, he was, in fact served with this evidence on or about 11 November 2022. I will return to that interlocutory ruling momentarily.

6. This proceeding has previously been set down, at least twice, for hearings in sittings list for the Parramatta District Court in July 2022 and May 2023.

7. The hearing commenced before me when I was administering the three-week civil sittings of the Parramatta District Court for August 2023. At the call-over early in the first week, the estimate given by the parties (of a day plus) was reaffirmed. The case started on the Tuesday of the second week, which enabled me to hear and determine other matters. Subject to some minor exceptions, all that was left in the list after the first week was the hearing of this matter and another hearing of a personal injury dispute (estimated to run for three days). My expectation was that the Court should be in a position to comfortably complete both hearings.

8. this hearing has not only exceeded the estimate supplied by the parties for a proceeding of this scope. Mr Mehndiratta has spent considerable time cross-examining all the witnesses (lay and expert) called for the owners. Whatever slight difficulties he has with the English language and the form of some of his questions, his cross-examination betokened his intelligence and considerable preparation. Nevertheless, the protracted length has resulted in the vacation of the 3-day personal injury matter and the adjournment of that hearing for the Court’s three week Parramatta Civil sittings in November 2023;

9. During the proceeding, and to return to one of the points raised earlier about interlocutory rulings, I have rejected applications by Mr Mehndiratta to (a) allow him to call a witness in his case (Ms Sanya Devi) to give oral evidence; and (b) to prepare evidence in reply to the lay and expert evidence relied upon by the owners. The reasons for those rulings share the common feature that if the applications were to be acceded to, they would inevitably result in the adjournment of this hearing in circumstance that, amongst other things, would result not only in further delay, but also costs which, because of the position of the plaintiff, and the position of its director, Mr Mehndiratta, as represented to the Court, would likely be irrecoverable.

10. in terms of the state of the proceeding, the builder has called its evidence (ie Mr Mehndiratta) to support its claim. The owners have called the defendants and their building expert, Mr O’Donnell. Their evidence is complete and the defendants’ case is closed, as is the plaintiff’s.

The applications

General

7. All of these applications are procedural. As such, when deciding whether to make the orders sought, the Court must seek to act in accordance with the dictates of justice (Civil Procedure Act 2005 (NSW), s 58(1)). Mandatory considerations include the provisions of ss 56 and 57. The former provision identifies, as the overriding purpose of the application of Court rules, the facilitation of the ‘just, quick and cheap resolution of the real issues’ in the proceeding. The latter provision then identifies related objects to that overriding purpose, being the just determination of the proceeding, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, the timely disposal of the proceeding, and all other proceedings in the court, at a cost affordable to the respective parties.

8. When considering what the dictates of justice require the Court is then guided by the non-exhaustive considerations set out in s 58(2)(b) of the Civil Procedure Act 2005 (NSW).

Powers to order relief

9. Before applying these principles, the anterior question concerns the Court’s power to order the relief which is sought.

10. As to the first of the applications which Mr Mehndiratta now brings, the Court is empowered by rule 23.8(1)(a) of the Uniform Civil Procedure Rules (‘UCPR’) to order the inspection of property and (incidentally, under r 23.8(2)) to authorise a person to enter on the land for the purpose of gaining access to the property. (I am satisfied that this is not a situation where s 169 of the Evidence Act 1995 (NSW) applies).

11. But as to the remaining four applications, Mr Mehndiratta did not point to, and I am not aware of, a power in the Court to compel persons to attend Court for cross-examination. What the Court can do is to order a person to attend Court to be examined as a witness (Civil Procedure Act 2005 (NSW), s 68) and also issue a subpoena for person to attend to give evidence (under r 33.2 of the UCPR).

12. However, on the premise that the owners do not wish to call any of the four people that Mr Mehndiratta has identified (one of whom is the solicitor advocate for the owners), the effect of conventional civil procedure and rules of evidence is that (a) it would be incumbent upon Mr Mehndiratta to call them as witnesses; (b) he would only be permitted to examine the witnesses in chief by asking non-leading questions; and (c) such opportunity for cross-examination would ordinarily, only be available for the solicitor advocate for the owners (save for the situation whereby Mr Lambley could not cross-examine himself). There are certain circumstances where Mr Mehndiratta might have the opportunity to cross-examine these witnesses, but they are very limited under the Evidence Act.

13. The common denominator for all of these applications is that to accede to them will necessitate a substantial adjournment of the proceeding.

Consideration

The application to inspect the property

14. Dealing first, with the application for inspection, the real point of this, even though it is not expressly stated in the relevant motion, is for Mr Mehndiratta to have the opportunity to have a building expert he wishes to appoint to inspect the property for the purpose of preparing a report which, in part, would presumably be responsive to Mr O’Donnell’s criticisms.

15. Viewed from that perspective, however, this application is substantially the same or similar to the earlier application he unsuccessfully made for him to call evidence in reply. It should therefore be rejected for the same reasons I referred to earlier in the hearing. In paraphrase, it would necessitate delay and likely occasion irrecoverable costs to the owners in circumstances where the Builder was on notice of Mr O’Donnell’s report back in November 2022 and had the opportunity to prepare expert evidence in response. In short, the application is brought too late. Mr Mehndiratta submitted it was apparent that Mr O’Donnell had lied and had tampered with the condition of the property. As I pointed out to Mr Mehndiratta, in argument, these are matters that go to the weight of Mr O’Donnell’s report.

16. In addition, however, there are other considerations. Conceivably, if a new building expert was called, it would be appropriate for the Court to order that Mr O’Donnell and the new expert engage in a conclave, for them to try to narrow issues upon which they disagree (as emerging from their individual reports). Not only that, it is also probable that the owners themselves may wish to adduce some evidence about the current condition of the property having regard to what the new expert says. These strong prospects would result in an evidentiary upheaval of the case and, very likely, would negate the evidence in the case so far. It is also to be pointed out that the owners, through their solicitor, have made forensic decisions in the case on the basis of the evidence in the case being identified, and notified, fairly to the parties before the case began. Acceding to this application would therefore negate earlier case management directions.

The applications to require the attendance of witnesses for cross-examination

17. As to the applications to cross-examine the persons identified, and assuming (despite my doubts) the power could even be exercised in his favour, very similar considerations arise: Mr Mehndiratta is seeking, in effect, to counteract the other part of the same interlocutory ruling, in which he was denied the opportunity to prepare further lay evidence in reply.

18. There are other matters as well.

19. First, for all of the persons, consistently with how the proceeding has been conducted through case management directions, it would necessary, first, for their evidence in chief to be by way of affidavit. Once that occurs, the party not calling the other witness would fairly have the opportunity of responding to that affidavit evidence, again by affidavit.

20. The applications to cross-examine Mr Nick Blaker and Mr Lambley are unique. They are both lawyers for the Owners (and Mr Lambley appeared in Court as their advocate in this hearing). It is inevitable that if they were to be cross-examined, much of the questioning to which they would be subject would likely attract the objection of client legal privilege; relating to the confidential content of communications they received from their clients and also communications they had with Mr O’Donnell.

21. In argument, Mr Mehndiratta explained they had prepared affidavits and implicitly conveyed that he was surprised that they did not give evidence in this hearing. But these affidavits apparently had been prepared on the numerous interlocutory disputes in the course of this (5 year old) proceeding. As I explained to Mr Mehndiratta, parties are not compelled to rely upon affidavit evidence prepared for such disputes at a final hearing.

22. As to the other lay witness, Hiral Barai, having observed the evidence in the case, Mr Mehndiratta indicated that the only document apparently bearing this person’s name was at Exhibit A, p 57. He indicated that the only purpose for her to be called was to challenge the credibility of both of the owners. It is apparent already, that a wholesale challenge will be made by Mr Mehndiratta to the credibility of both owners even without this proposed witness’ evidence. Such evidence as the proposed witness may give is, at best, peripheral. Acceding to the application to order them to be examined would be antithetical to facilitating the adjudication of the real issues in dispute.

23. As to Ms Holt, she is a forensic examiner. Mr Mehndiratta read an affidavit that she prepared in the proceeding; notwithstanding that it was the owners who engaged her. It is a material issue in the proceeding whether signatures of the owners were applied to a version of the contract for the works which Mr Mehndiratta propounds, being that of 23 December 2016. The gist of her affidavit is that she was unable to complete the opinion that she was tasked to do. But Exhibit U - an email she wrote to Mr Mehndiratta on 6 October 2022 - indicates that there would be no utility in her being called now; since she still did not complete a report after 6 October 2022. Mr Mehndiratta says he needs to know why she did not prepare a report. I disagree. There is then, the further obstacle that if Mr Mehndiratta wished to rely upon any further information, he had the opportunity to do so after November 2022 when the owners had served the evidence indicating what they relied upon. He knew that from October 2022 the owners were not going to pursue her opinion.

24. These are reasons enough for declining all of the applications. But I also find, with specific reference to the matters set out in s 58(2)(b) of the Civil Procedure Act 2005 (NSW) that:

1. it is not the case that the issues in dispute which have prompted these applications were the result of complexity or difficulty which might explain the delay in bringing them;

2. the Builder has not shown expedition, including the timeliness of these interlocutory applications. In particular, after a hearing had been vacated, for a second time, in May 2023, it has taken another 3 months, and virtually 10 days of hearing, for the current applications to be brought;

3. there may be a question as to whether the Builder has complied with its obligation under s 56(3) of the Civil Procedure Act, although noting its essentially unrepresented status, with a director who has suggested that English is his second language, these are complicating matters;

4. the Builder has plainly not availed itself of opportunities to bring these applications before now;

5. there is procedural injustice in permitting the Builder to have the proceeding adjourned so as to enable a report from an expert to be obtained. Indeed there would be a perfect procedural injustice to the owners if that opportunity was now granted in the way that I have referred to. If there is any disadvantage for the Builder in not having a building expert in response to Mr O’Donnell, this lies at the Builder’s feet. In relation to the other lay witnesses, as I have indicated when talking about the marginal utility of their evidence, and putting aside the circumstance that procedurally there is no unfairness to the Builder in declining the applications, it is difficult to envisage material substantive injustice.

6. finally, with reference to the matters in s 57(1)(c) and (d) of the Civil Procedure Act 2005 (NSW), acceding to all of these applications will lead to inefficiencies in judicial and administrative resources. To bring a 10 day hearing of a dispute between an unrepresented builder and an owner to a halt now, only for its return, possibly in the February 2024 sittings in Parramatta (it being doubtful that the matter could be ready for the November 2023 sittings in view of the application for property inspection, and subsequent reports) underscores the point. This case has already thwarted the case management object of delay, but has also thwarted the object of the timely disposal of other proceedings in the August 2023 sittings.

25. On balance, this is a clear example where acceding to the procedural applications would be antithetical to the just, quick and cheap resolution of the proceedings accordingly. The five notices of motion are each dismissed.

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Amendments

15 September 2023 - Corrected formatting and paragraph numbering.

Paragraph 6(8) - corrected typographical error.

Decision last updated: 15 September 2023