Robust Builders Pty Ltd v Barai & Anor (No.5)

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Robust Builders Pty Ltd v Barai & Anor (No.5) [2023] NSWDC 375
Hearing dates:	7 September 2023
Date of orders:	7 September 2023
Decision date:	07 September 2023
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 29
Catchwords:	CIVIL PROCEDURE – builder’s application to reopen evidence during closing submissions (in reply) – discretionary considerations
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-58
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

REASONS FOR JUDGMENT

Background

1. This is day 12 of the hearing of this proceeding, which commenced in August 2018 and relates to the performance of a construction contract between 2017 and July 2018. The proceeding is at the stage where the parties are in closing submissions. The structure for the closing submissions I have directed is that:

1. The builder od to make submissions in chief about issues associated with the builder’s claim;

2. The owners are to make submissions in response to issues associated with the builder’s claim and make submissions in chief on the Owners’ claim;

3. The builder is to make submissions in reply on the builder’s claim and submissions in response on the Owners’ claim; and

4. The owner is to make submissions in reply on the owners’ claim.

2. More specifically, the proceeding is at the stage of point (c).

3. Mr Mehndiratta, the plaintiff’s director, who has been carrying on the proceeding for the builder in a practical way since November 2020, has applied (for a third time since the closing addresses commenced yesterday) to reopen the builder’s case again for the purpose of tendering additional documents.

4. Mr Lambley, the owners’ solicitor advocate, opposes the application.

The documents for proposed tender

5. The documents that the builder wishes to tender, if leave was granted to him, are:

1. An email from Mr Barai to Mr Mehndiratta on 27 July 2017 (MFI 63)

2. Emails exchanged between Mr Barai and Mr Mehndiratta on 13 June 2018 (MFI 64);

3. Emails exchanged between Mr Mehndiratta and Mr Barai on 21 February 2018 (MFI 65);

4. Emails exchanged between Mr Mehndiratta and Mr Barai on 20 February 2018 (MFI 66).

5. Two emails sent from the first defendant (Mr Barai) to Mr Mehndiratta dated 22 November 2016 (MFI 67 & 68).

6. Emails exchanged from Mr Barai and Ms Sanya Devi in the period from 22 November 2016 to 1 December 2016 (MFI 69);

7. An email from Mr Barai to Mr Mehndiratta on 5 December 2016 (MFI 70).

Some context

6. At a relatively early stage of the hearing, I rejected applications by Mr Mehndiratta to (a) call Ms Sanya Devi to give oral evidence for the builder (22 August 2023); and (b) to call lay and expert evidence in reply (24 August 2023).

7. The reasons for those decisions will, in due course, be published on Caselaw.…