Strongbuild Pty Ltd v Lam

[2020] NSWSC 820

Supreme Court

New South Wales

Medium Neutral Citation:

Strongbuild Pty Ltd v Lam [2020] NSWSC 820

Hearing dates:

23 June 2020 and on the papers

Date of orders:

26 June 2020

Decision date:

26 June 2020

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Defendants granted leave to serve further evidence.

Catchwords:

CIVIL PROCEDURE – application to rely on further evidence

CIVIL PROCEDURE – guillotine order

Category:

Procedural and other rulings

Parties:

Strongbuild Pty Ltd (Plaintiff/Cross-Defendant)
Tai Quy Lam (First Defendant/Cross-Claimant)
Maram Lam (Second Defendant/Cross-Claimant)

Representation:

Counsel:
D Weinberger (Plaintiff/Cross-Defendant)
M Klooster (Defendants/Cross-Claimants)

Solicitors:
HWL Ebsworth (Plaintiff/Cross-Defendant)
Snelgroves Solicitors (Defendants/Cross-Claimants)

File Number(s):

2019/74229

Judgment

1. By contract dated 25 September 2017 the plaintiff, Strongbuild Pty Ltd, agreed with the defendants, Mr and Mrs Lam, to construct a dwelling on Mr and Mrs Lam’s property at Kenthurst.

2. These proceedings are concerned with a dispute arising out of that contract and are fixed for hearing for five days commencing 21 September 2020.

3. Mr and Mrs Lam now seek leave to rely on three further expert reports which increase Mr and Mrs Lam’s claim for defective works from 11 items totalling $206,812.57 to 21 items totalling $866,694.73.

4. The explanation given as to why these defects were not raised earlier is, according to Mr and Mrs Lam’s solicitor, that they were “exposed for the first time during the course of further rectification work being carried out by [Mr and Mrs Lam’s] rectifying builder, which could not be observed earlier”.

5. Strongbuild dispute the proposition that the defects now sought to be relied upon could not have been raised earlier and submit that “all of the new defects were always visible or able to be detected absent rectification works”.

6. In my opinion, there is some substance in Strongbuild’s contentions as some of the new items identified appear to have been mentioned in earlier reports served on behalf of Mr and Mrs Lam.

7. However, I did not consider it to be productive to engage in a detailed analysis of that matter as Strongbuild does not contend that it cannot meet the new claims in the three month period between now and the hearing.

8. However, Strongbuild points to the fact that in relation to some of the items now sought to be agitated, it is apparent that Mr and Mrs Lam will seek to adduce yet further evidence.

9. For example, in relation to the item “additional structural and non-structural items identified during the rectification works” there is no amount specified as the cost of doing or rectifying the work in question.

10. In relation to a claim that “tall windows and doors” are not compliant, the relevant expert says “the certification of the windows is currently an unknown as is the solution, I am not in a position to assist the Court with a costing [until I receive further details]” and that “further information is being sought”.

11. There was also a claim in relation to air conditioning units (it is said that they are “too big”) in respect of which the relevant expert says that air conditioning is “not within my expertise”.

12. In relation to an amount sought in respect of “certificates” an amount of $10,000 is claimed but it is said to be a “provisional sum”.

13. In order to reply to this further evidence, Strongbuild will need to engage its expert engineer to conduct another site inspection and report. That expert is not available until mid July and would require three to four weeks to prepare a further report. It may be that Strongbuild will need to obtain further evidence from its building consultant and quantity surveyor.

14. It appears to me that there is ample time for Strongbuild to obtain reports from those experts.

15. However, there is substance in Strongbuild’s complaint that, although this has not been acknowledged in terms, it is clear that Mr and Mrs Lam will need to adduce further evidence in order to make out at least some of the new defects of which they contend.

16. In that regard, it was submitted on behalf of Mr and Mrs Lam:

“To the extent any complaint is raised with respect to any additional foreshadowed evidence that may be served, the Court can either:

(a) divert that issue, should it arise, to the trial judge; or

(b) make a guillotine order,

to appropriately balance the competing interests of the parties.”

17. I do not consider it would be appropriate to leave these matters for consideration by the trial judge.

18. They should be addressed now and I propose to do that by making a guillotine order.

19. I make these orders:

1. I grant leave to the defendants to rely upon the report of WT Partnership of 17 April 2020, Stubbs Cruickshank of 22 May 2020, and NSW Building Consultants of 26 May 2020.

2. I direct that the defendants serve any reports supplementing the referred to in the preceding order by 5pm on 10 July 2020.

3. I order that the defendants not be entitled to rely upon any report not served within the time referred to in the preceding order.

4. I direct that that the plaintiff serve any reports in reply to those referred to in the preceding orders by 5pm on 28 August 2020.

5. I grant the plaintiff liberty to apply on short notice to vary the order referred to in the preceding paragraph.

6. I order that the defendants pay the plaintiff’s costs of this application.

**********

Decision last updated: 26 June 2020