Stolfa v Owners Strata Plan 4366

[2010] NSWSC 1524

NEW SOUTH WALES SUPREME COURT

CITATION:
Stolfa v Owners Strata Plan 4366 & ors [2010] NSWSC 1524

JURISDICTION:
Equity Division

FILE NUMBER(S):
2007/256199

HEARING DATE(S):
16 December 2010

EX TEMPORE DATE:
16 December 2010

PARTIES:
Veronica & Raffaele Stolfa (plaintiffs)
Owners Strata Plan 4366 (first defendant)
John Hempton & Joanna Kalowski (second defendants)
Stephen Hempton (third defendant)

JUDGMENT OF:
Brereton J     

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
M A Ashhurst SC (plaintiffs)
PWJ Gray SC w Ms P E Koroknay (second & third defendants)

SOLICITORS:
W G McNally Jones Staff (plaintiffs)
David Le Page (second & third defendants)

CATCHWORDS:
EVIDENCE – Expert evidence – where single expert appointed – whether report of another expert should be admitted – where expert reports tendered by annexure to affidavit of a party

LEGISLATION CITED:

CATEGORY:
Consequential orders

CASES CITED:

TEXTS CITED:

DECISION:
Tender rejected

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday, 16 December 2010

2007/256199                  Veronic Stolfa and Raffaele Stolfa v The Owners Strata Plan No 4366 & Ors

JUDGMENT (ex tempore)

1. HIS HONOUR:  Following the substantive judgment given in these proceedings on 26 June 2009, on 27 July 2009 the court made a number of directions to progress the inquiry as to damages, including:

   (6) Direct that within fourteen days of notification of practical completion [of the works to unit 3], the parties instruct Mr Branch to provide a supplementary report setting out:

   (a) which of the defects identified in his report of 28 February 08 were caused by the building works undertaken by the second and third defendants;

   (b) what if any further defects identified in and about Unit 2 since 28 February 08 have been caused by the building work undertaken by the second and third defendants; and

   (c) a recommended Scope of Works for rectification of the defects so identified;

   (7)  Direct that within 21 days after Mr Branch's supplementary report is given to the parties, the plaintiff serve three itemised quotations for the performance of rectification works in accordance with Mr Branch's recommended Scope of Works.

2. That direction was made with a view to reducing the scope of the issues in dispute on the inquiry and identifying, so far as could informally be done by the use of quotations, a potential range in which the cost of the works might fall.   As I recall it, it was at the time indicated that the quotations would not themselves be - at least conclusive - evidence on the topic. 

3. The proceedings were then adjourned to 15 March 2010, by which date the plaintiffs had served some quotations.  On 15 March, directions were made inter alia pursuant to (NSW) Uniform Civil Procedure Rules, r 31.37, that an expert quantity surveyor be engaged jointly by the plaintiffs and the defendants “on the question of the cost of the performance of rectification works in accordance with Mr Branch's recommended scope of works contained in Mr Branch's supplementary report”. Liberty to apply was reserved in the event of any difficulty arising in selecting or instructing this single expert.

1. Pursuant to that direction, Mr Makin, quantity surveyor, was engaged, and he has provided a report. UCPR, r 31.44, provides that except by the leave of the court, a party to proceedings may not adduce evidence of any other expert on any issue arising in the proceedings if a party's single expert has been engaged under this Division in relation to that issue.

1. The plaintiffs seek to read paragraphs 2, 3 and 4 of Mrs Stolfa's affidavit of 13 May 2010, which annexes two of the quotations they obtained.  Additionally, they seek to tender the third quotation (the Ferrocon quotation) so obtained.

1. Insofar as the quotations are proffered as annexures to Mrs Stolfa's affidavit, if tendered as evidence of the reasonable cost of carrying out the rectification works, they are hearsay; and if tendered merely as evidence that they were given and obtained, they are no evidence of the reasonable costs of the work concerned and are irrelevant.  Insofar as the quotations are tendered in their own right, as reports of the workmen in question, they would be excluded by rule 31.44. 

1. I reject paragraphs 2, 3 and 4 of Mrs Stolfa's affidavit.  I reject annexures A and B of that affidavit.  I also reject the Ferrocon quotation, contained at pages 1 to 2 of the tender bundle.

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LAST UPDATED:
3 February 2011