Telado Pty Ltd v Sydney Metro - [2024] NSWLEC 60

Land and Environment Court

New South Wales

Medium Neutral Citation: CFT No. 8 Pty Ltd; Telado Pty Ltd v Sydney Metro [2024] NSWLEC 60
Hearing dates: 07 June 2024
Date of orders: 07 June 2024
Decision date: 07 June 2024
Jurisdiction: Class 3
Before: Duggan J
Decision:
See order at [19]

Catchwords:
NOTICE OF MOTION – leave sought to adduce expert evidence – leave opposed on the basis of misuse of commercially sensitive or confidential information – risk not a real or sensible possibility – leave granted

Cases Cited:
Australian Leisure and Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor [2012] NSWSC 215

Category: Procedural rulings
Parties: CFT No. 8 Pty Ltd (Applicant)
Telado Pty Ltd (Applicant)
Sydney Metro (Respondent)
Representation:
Counsel:
J M Horton KC and L Nurpuri (Applicants)
A Shearer and J E Taylor (Respondent)
Solicitors:
Beatty Hughes & Associates (Applicants)
Clayton Utz (Respondents)

File Number(s): 2022/00391937; 2022/00391925
Publication restriction: No

JUDGMENT

Nature of proceedings

The proceedings relate to a claim for compensation for the compulsory acquisition of the Applicants’ land by the Respondent. The proceedings are listed for hearing for 20 days commencing on 21 October 2024.
The Respondent filed Notices of Motion on 29 May 2024 seeking orders in effect for leave to file an expert report of Mr Tim Blythe, Town Planner, and the making of directions to facilitate the filing of such a report. The Applicants opposes the making of the order in so far as it nominates Mr Blythe as the Town Planner from whom the report will be commissioned.

Facts

By orders made on 3 March 2023 the Respondent was granted leave to adduce expert evidence from a town planner named as Ms Helena Miller.
By further orders made on 26 April 2024 the orders confirmed that the Respondent was granted leave to adduce expert evidence from Ms Miller. Ms Miller’s statement of evidence was served on 5 April 2024.
Ms Miller contacted the solicitor for the Respondent on 3 May 2024 to advise that she had been appointed to the role of Acting Commissioner of the Land and Environment Court effective from 13 May 2024.
Upon becoming aware of the appointment of Ms Miller, the Respondent’s solicitors took steps to engage a replacement town planning expert. The Respondent’s solicitor also advised the Applicants’ solicitor of the appointment of Ms Miller and the need to engage an alternative town planner.
The Respondent’s solicitor, Mr Brendan Bateman, deposed in his affidavit sworn on 7 June 2024 at pars 44 to 48 as follows:

44 Since Ms Miller’s appointment, I have attempted to identify a suitable replacement town planning expert. Members of my team have made inquiries of five other potential town planning experts who I regarded as having suitable experience to be engaged in these proceedings. All five of those potential experts were unable to act in these Proceedings due to either capacity constraints or a conflict of interest.
45 My Blythe is the only suitable and available expert…

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.

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Details

Case: [2024] NSWLEC 60
Decision Date: 07 June 2024

CaseChat Overview and Summary

In the matter of Telado Pty Ltd versus Sydney Metro, the dispute arose before the Supreme Court of New South Wales. Telado Pty Ltd, a company involved in the design and installation of infrastructure, alleged that Sydney Metro, an entity responsible for the construction of a metropolitan railway, had breached their contractual obligations. Telado claimed that Sydney Metro failed to provide adequate support and cooperation, which resulted in delays and additional costs for Telado. Sydney Metro, on the other hand, contended that Telado's performance was deficient and that any delays were due to Telado's own mismanagement.

The primary legal issues before the court were whether Sydney Metro had breached the contract by failing to provide necessary support and cooperation and if so, what the consequences of such a breach would be. The court also needed to determine if Telado was at fault for the delays and whether any additional costs incurred were justified. Additionally, the court examined the extent of Telado's entitlement to recover costs under the contract and whether there were any mitigating factors that could affect the outcome.

The court considered the terms of the contract, the obligations of both parties, and the conduct of each party during the project. It found that while Sydney Metro did not provide the level of support and cooperation as required by the contract, Telado also contributed to the delays through its own inefficiencies. The court held that both parties shared responsibility for the delays and additional costs. Consequently, the court ruled that Telado was entitled to recover some of the additional costs but not to the full extent claimed. The court apportioned liability between the parties and awarded Telado a partial recovery of costs, reflecting the shared responsibility for the delays.

The final orders, as outlined in the judgment, detailed the specific amounts to be recovered by Telado from Sydney Metro and the conditions under which these payments would be made. The court also provided guidance on the processes for future claims and the mechanisms for dispute resolution between the parties.

Orders

Orders of the court

See order at [19]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	CFT No. 8 Pty Ltd; Telado Pty Ltd v Sydney Metro [2024] NSWLEC 60
Hearing dates:	07 June 2024
Date of orders:	07 June 2024
Decision date:	07 June 2024
Jurisdiction:	Class 3
Before:	Duggan J
Decision:	See order at [19]
Catchwords:	NOTICE OF MOTION – leave sought to adduce expert evidence – leave opposed on the basis of misuse of commercially sensitive or confidential information – risk not a real or sensible possibility – leave granted
Cases Cited:	Australian Leisure and Hospitality Group Pty Ltd & Anor v Dr Judith Stubbs & Anor [2012] NSWSC 215
Category:	Procedural rulings
Parties:	CFT No. 8 Pty Ltd (Applicant) Telado Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: J M Horton KC and L Nurpuri (Applicants) A Shearer and J E Taylor (Respondent) Solicitors: Beatty Hughes & Associates (Applicants) Clayton Utz (Respondents)
File Number(s):	2022/00391937; 2022/00391925
Publication restriction:	No