Stolfa v Owners Strata Plan 4366 (No 2) - [2008] NSWSC 531

CITATION: Stolfa v Owners Strata Plan 4366 & Ors (No 2) [2008] NSWSC 531

HEARING DATE(S): 30 April - 1 May 2008

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 1 May 2008

DECISION: Leave to adduce evidence of second expert refused.

CATCHWORDS: EVIDENCE – expert evidence – application for leave to adduce evidence of a second expert where parties’ single expert appointed.

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules, rr 31.17, 31.20, 31.38, 31.44

CATEGORY: Procedural and other rulings

CASES CITED: Cosgrove v Pattison [2001] CP Rep 68
Daniels v Walker [2000] 1 WLR 1382
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Tomko v Tomko [2007] NSWSC 1486

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

FILE NUMBER(S): SC 4087/07

COUNSEL: Mr M A Ashhurst SC w Mr S T O'Brien (plaintiffs)
Mr P W J Gray SC w Ms P E Koroknay (second & third defendants)

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

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

1 May 2008

4087/07 Veronica & Raffaele Stolfa v Owners Strata Plan 4366 & Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: The present proceedings were instituted by summons filed on 17 August 2007 which sought interlocutory and final relief restraining building works by the defendants in the strata title building of which the first defendant is the Owners Corporation, and the plaintiffs, second defendant and third defendant the unitholders. An interim undertaking was given on 27 August, when the proceedings were adjourned to 18 September. Further interlocutory relief was granted on 18 September until 9 October, and the interlocutory issues were resolved by an injunction and undertaking pronounced and given on 9 October 2007 until further order.

2 In anticipation of the interlocutory hearing on 9 October, the defendants obtained a report from Mr Ryan, engineer, dated 7 September 2007, which was attached to his affidavit sworn 5 October 2007, filed and served at or about that time. In the second part of that report appears five paragraphs numbered 1 to 5 under the heading “Stability of Existing Building”, which express opinions as to whether the works carried out to that point had maintained the structural integrity of the building and whether the removal of walls and their replacement with steel beams would reduce its structural integrity. Although the (NSW) Uniform Civil Procedure Rules require a party to move for directions in respect of expert evidence at the earliest possible opportunity once it becomes apparent there may be an issue requiring expert evidence, that does not apply in the context of interlocutory proceedings, and the defendants were not obliged to move for directions before obtaining Mr Ryan's report.

3 On 7 December 2007, the Court made a direction for the engagement and instruction…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stolfa v Owners Strata Plan 4366 (No 2)

Details

AGLC: Stolfa v Owners Strata Plan 4366 (No 2) [2008] NSWSC 531
Case: [2008] NSWSC 531
Decision Date: 1 May 2008

CaseChat Overview and Summary

The case of Stolfa v Owners Strata Plan 4366 (No 2) involved the applicants, Stolfa, who were contesting a decision made by the Owners Corporation of Strata Plan No 4366 regarding the costs of replacing a roof. The applicants sought leave to adduce evidence from a second expert, in addition to the single expert appointed by both parties, in the Supreme Court of New South Wales. The applicants argued that the evidence of the single expert was not sufficient to determine the quantum of the costs associated with the roof replacement.

The central legal issue before the court was whether the applicants were entitled to adduce evidence from a second expert when a single expert had already been appointed by both parties. The applicants contended that the single expert's evidence was not sufficient to determine the quantum of the costs associated with the roof replacement. The respondents argued that the applicants had not demonstrated that the single expert's evidence was inadequate and that permitting the addition of a second expert would be an abuse of process.

The court considered the relevant case law and principles governing the admissibility of expert evidence in strata disputes. The court held that the decision to permit the adducing of evidence from a second expert was within the discretion of the court, and that such discretion should be exercised sparingly. The court found that the applicants had not demonstrated that the single expert's evidence was inadequate or that the addition of a second expert was necessary to determine the quantum of the costs associated with the roof replacement. The court concluded that the application for leave to adduce evidence from a second expert should be refused.

The court's final order was that the applicants' application for leave to adduce evidence from a second expert be dismissed, with each party to bear their own costs of the application.

Orders