Sungrow Australia Group Pty Ltd v Sanctus One Pty Ltd

[2018] NSWSC 537

Supreme Court

New South Wales

Medium Neutral Citation:	Sungrow Australia Group Pty Ltd v Sanctus One Pty Ltd [2018] NSWSC 537
Hearing dates:	26 April 2018
Decision date:	26 April 2018
Jurisdiction:	Equity - Commercial List
Before:	Stevenson J
Decision:	Defendants’ Notice of Motion filed 23 April 2018 is dismissed with costs
Catchwords:	PRACTICE AND PROCEDURE – where defendant’s case depends on expert evidence - where defendant thrice ordered to serve expert evidence but failed to do so – where final order expressed as a guillotine order – where explanation for failure to serve evidence weak – where defendant sought further extension of time – where doubt as to whether plaintiff could respond prior to the hearing date to any report served in time proposed for service of defendant’s expert report – usual practice in Commercial List to refuse to consider whether leave should be granted until report to hand
Category:	Procedural and other rulings
Parties:	Sungrow Australian Group Pty Ltd (Plaintiff/Respondent) Sanctus One Pty Ltd (First Defendant/Applicant) Charles Kwok Leong Wong (Second Defendant/Applicant)
Representation:	Counsel: G P Gee (Plaintiff/Respondent) F St John (Defendants/Applicants)   Solicitors: McCabes Lawyers (Plaintiff/Respondent) Norman Waterhouse (Defendants/Applicants)
File Number(s):	SC 2017/165177

EX TEMPORE Judgment (REVISED)

1. These proceedings are fixed for hearing for four days, commencing 16 July 2018.

2. In the proceedings, the plaintiff, Sungrow Australia Group Pty Ltd, seeks to recover from the first defendant, Sanctus One Pty Ltd, a sum of money that it says is due to it for the supply of solar panels.

3. Sanctus defends the proceedings on the basis that the solar panels were defective or unfit for their purpose.

4. That being so, a vital question for Sanctus was to adduce expert evidence to make out the proposition that the solar panels were defective or unfit.

5. In that regard, on three occasions the Court has ordered that Sanctus serve its expert evidence.

6. On 11 August 2017 the Court ordered that Sanctus serve any expert evidence by 10 November 2017. That was not done.

7. On 8 December 2017 the Court ordered that Sanctus serve its expert evidence by 22 January 2018. That was not done.

8. There is no evidence before me explaining why those orders were not complied with.

9. Ms St John, who appears now for Sanctus, informs me that her instructors were retained at or shortly around the time when that second order was made. That may well be but that does not explain why the earlier orders were not complied with.

10. On 9 February 2018, the day that Hammerschlag J set the matter down for hearing, a further order was made extending the time by which Sanctus should serve expert evidence until 16 April 2018. His Honour ordered that if Sanctus did not serve its expert evidence by 16 April it would not be entitled to rely upon that evidence at the hearing.

11. Hammerschlag J said:

“…[Sanctus] is not going to get any extensions now, it is going to be a guillotine order of a final nature, [Sanctus] is not going to be able to rely on this material at the trial if he doesn't serve it on time.”

12. Nonetheless Sanctus has not yet served any expert evidence.

13. Now, by Notice of Motion filed on 23 April 2018 (but foreshadowed before me on 20 April 2018) Sanctus seeks, in effect, an extension of time until 25 May 2018 to serve its expert evidence.

14. Sanctus proposes to retain Dr Michelle McCann from PV Lab Australia Pty Ltd to examine and report on the state of the solar cells. Dr McCann has been formally retained but has not been instructed to commence the testing.

15. In an Affidavit affirmed on 23 April 2018 Dr McCann says that, assuming her company is retained immediately and (seemingly) assuming that the relevant solar panels can be delivered to her (in Canberra) without delay that:

“Subject to all the equipment being serviceable (and I believe it will be) and PV Lab Australia’s terms and conditions [as to payment of fees] being met…and no unforeseen circumstances, the testing and report will be completed by 25 May 2018.”

16. The only evidence given on behalf of Sanctus as to why Dr McCann was not earlier instructed to commence testing the panels in question is an Affidavit sworn by its solicitor, Mr Burke, in which he says:

“Since 9 February 2018, the Defendants have been attempting to source the funds they need to meet [Dr McCann's fees].

This process has been delayed by Mr Wong's [Mr Wong is a director of Santus] extensive business travel to Japan, China, Singapore and Hong Kong in the last two months.

As the Defendants have now secured sufficient funds to enable us to instruct Dr McCann to proceed with the testing."

17. That explanation conceals more than it reveals. No attempt has been made on behalf of Sanctus to explain what, if any, financial difficulties Sanctus had which prevented it from instructing Dr McCann before now. All that is said is that the process "has been delayed" in an unspecified way by Mr Wong's business commitments in South East Asia.

18. If Sanctus does serve a report from Dr McCann Sungrow proposes to retain Dr Chris Fell from the CSIRO. Dr Fell has already provided a report to Sungrow dealing with a small number of the panels in question.

19. Dr Fell has said he is unlikely to be able to examine the solar panels and provide a report in reply to Dr McCann prior to the 16 July 2018 hearing date, unless he receives a report from Dr McCann by 14 May 2018.

20. I was informed today that what Dr McCann now proposes to do is to forward to Dr Fell panels she has examined in batches so that, if instructed to do so, Dr Fell could get on with the job of himself examining the panels and preparing a draft report prior to receipt of Dr McCann's report. This does sound a sensible way to proceed and may well mean that any report finally prepared by Dr McCann can be addressed and dealt with by Dr Fell sooner than would otherwise be the case.

21. Neither party seeks to vacate the hearing date and, at the moment, I see no basis to do so.

22. Thus, there is a problem from the point of view of the parties and the Court. The matter is fixed for hearing. Sungrow wishes to retain the hearing date. The expert evidence Sanctus wishes to adduce is, obviously, important, if not vital to its case. It has had every opportunity to serve its expert evidence. It has not done so. Its explanation for not doing so is weak indeed.

23. The problem is one entirely of Sanctus' own making.

24. In those circumstances, and consistently with what I understand to be the usual practice in this List in matters such as this, I do not propose to make any order.

25. Sanctus will have to decide whether or not it will proceed to instruct Dr McCann. If it does, it must procure that Dr McCann’s report is to hand as soon as possible. If Sanctus and Dr McCann consider this is appropriate, it may well be advantageous for Dr McCann to forward to Dr Fell the solar panels in batches as and when she has finished her examination of them. Whether or not that leads to a circumstance where Dr McCann produces a report that Dr Fell can respond to in time for the hearing date, is a matter that only time will reveal.

26. If and when Sanctus serves a report from Dr McCann, and only then, will the Court consider whether or not it should grant leave to Sanctus to rely upon any report served.

27. It is for Sanctus now to decide what it proposes to do in those circumstances.

28. The only order I propose to make today is that Sanctus' Notice of Motion of 23 April 2018 is dismissed with costs.

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Decision last updated: 27 April 2018