The Owners Strata Plan 99170 v MN Builders Pty Ltd

[2025] NSWSC 1190

Supreme Court

New South Wales

Medium Neutral Citation:

The Owners Strata Plan 99170 v MN Builders Pty Ltd [2025] NSWSC 1190

Hearing dates:

10 October 2025

Date of orders:

10 October 2025

Decision date:

10 October 2025

Jurisdiction:

Equity - Technology and Construction List

Before:

Rees J

Decision:

Trial vacated, relisted 26 June 2026.

Catchwords:

VACATE TRIAL – principles at [19]-[21] – matter fixed for trial – plaintiff serves substantial body of further liability and quantum evidence.

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 62(1), 66

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716

Cohen v McWilliam (1995) 38 NSWLR 478

Hamod v New South Wales [2011] NSWCA 375

Kerr v American Express Australia Ltd [2009] FCA 1219

Lennox v Amcor Ltd trading as Amcor Cartonboard(No 2) [2009] FCA 962

Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25

Singh v Deputy Commissioner of Taxation [2011] FCA 889

Thornberry v The Queen (1995) 69 ALJR 777

Category:

Procedural rulings

Parties:

The Owners – Strata Plan No 99170 (Plaintiff)
MN Builders Pty Ltd (First Defendant)
Coronation (26 Shepherd St) Pty Ltd (Second Defendant)
Coronation (28 Shepherd St) Pty Ltd (Third Defendant)

Representation:

Counsel:
N Simpson SC (Plaintiff)
M Pesman SC (Defendants)

Solicitors:
Project Lawyers (Plaintiff)
Collins Biggers & Paisley (Defendants)

File Number(s):

2021/335374

ex tempore JUDGMENT

1. HER HONOUR: This is an application to vacate a 10-day trial that is due to commence in seven weeks. The substantive claim is for damages for building defects in relation to an 83-apartment development in Liverpool. The quantum of damages sought is some $27 million.

Facts

2. These proceedings were commenced more than four years ago, initially, in the NSW Civil and Administrative Tribunal. It was transferred to this Court in December 2021. The plaintiff was initially directed to serve its evidence on liability by 30 September 2022. Various extensions were given. Whilst I do not have all the details at my fingertips, it looks like this task was completed by July 2023.

3. The plaintiff and defendants' experts then prepared joint reports in the various disciplines relevant to the alleged defects, including mechanical defects, structural defects and waterproofing. So far as I can tell, this task was completed by October 2024.

4. On 8 November 2024, the plaintiff sought a hearing date, even though quantum evidence had yet to be completed. The plaintiff's senior counsel informed Ball J that, other than quantum, the matter was ready for hearing. A hearing date was sought, as the plaintiff did not want to run the risk of losing the opportunity to have the matter heard in 2025. His Honour acceded to that request and listed the matter for trial for 10 days commencing on 1 December 2025. Directions were also made for the parties to serve their quantum evidence.

5. The time to serve quantum evidence was extended. The plaintiff served their quantum evidence on 8 May 2025, being a report by David Ball comprising some 1,250 pages. The next item of business was for the defendants to serve their quantum evidence in reply on 8 August 2025.

6. However, on 28 May 2025, the plaintiff's solicitors wrote, advising that more expert reports were being prepared on the issue of liability. The plaintiff acknowledged that it would need leave to rely on these reports, and also acknowledged that the defendants would need to respond. There was no immediate response from the defendants.

7. The first additional liability expert report was served on 21 July 2025. Perhaps prompted by this, on 23 July 2025, the defendants' solicitors wrote, expressing “serious and genuine concerns” that the trial date would be lost, not only because additional liability reports were in view but also because Mr Ball's quantum evidence appeared incomplete. The defendants advised that they did not propose to serve their quantum evidence until after the plaintiff had served all of its evidence. Nor could the defendants comment on the time needed to reply to the additional liability reports, or advise whether they consented to leave to rely on these reports, until all reports were served.

8. The plaintiff's solicitors responded in strong and perhaps intemperate terms on 28 July 2025, that the defendant's position was unreasonable and that any application to vacate the trial would be strongly opposed.

9. In August and September 2025, the plaintiff continued to serve additional liability expert reports. Whilst the defendants' quantum evidence was due on 8 August 2025, it was not served, presumably because the defendants were waiting for the plaintiff to complete the service of its additional material. On 21 August 2025, the defendants did send a letter of instruction to their quantum expert, John Archer.

10. On 3 September 2025, the defendants circulated proposed short minutes of order, proposing to consent to the plaintiff relying on the experts reports that were being served, to reply to that material by 31 October 2025, to serve their quantum report by 7 November 2025 and to serve a joint quantum report by 24 November 2025. That is, on these proposed orders, the hearing date would be retained.

11. The plaintiffs served two further liability expert reports on 11 September 2025. On 12 September 2025, the matter was re-listed at the defendants’ request. I was informed that the plaintiff's liability evidence had now finished, but there might be more quantum evidence. Consent orders were made, granting leave to the plaintiff to rely on the additional liability expert reports. An order was also made, referring the matter for mediation on 19 September 2025.

12. The mediation was not successful. On 30 September 2025, the defendants filed the motion now before the Court. The defendants' solicitor, James Neal, said that work had not begun to address the plaintiff's further liability reports given the upcoming mediation. Access had now been sought for the defendants’ experts to inspect the property. Each of the defendants’ experts had been contacted to see when they would be able to provide their reply reports. Most of the experts would be able to provide a report by mid to late November 2025. One of the defendants’ experts, however, cannot provide a reply report until the end of December 2025.

13. In addition, the defendants' quantum expert, Mr Archer, can respond to Mr Paul's first report by early November 2025, but cannot begin to deal with the more recent liability reports until the defendants’ experts have completed their work.

14. Yesterday, the plaintiff served a second quantum report from Mr Ball totalling some 975 pages. The defendants were not in a position today to tell me whether Mr Archer could respond to that report before the hearing, but it seems doubtful.

15. In the circumstances, the defendants seek to vacate the trial as they will not be ready.

16. The plaintiff pressed to hold onto the trial date, including by reason of the serious nature of the building defects and the financial and personal burden imposed on lot owners of having to live with the defects and continue to fund these proceedings. The plaintiff submitted that the proposed difficulties described by Mr Neal could be effectively addressed by using the trial dates to hear evidence on liability and the scope of any rectification work. Depending on judgment on those matters, the quantum of rectifying any defects on the scope of works found to be appropriate could then be quantified, potentially by a reference.

17. The defendants opposed this course, including where the possibility of a reference had been canvassed before Ball J on 8 November 2024 and then opposed by the plaintiff’s senior counsel.

18. The next available ten day trial in the Commercial List is in June 2026.

Principles

19. Section 66(1) of the Civil Procedure Act 2005 (NSW) provides that the court may adjourn proceedings. While this power is cast in broad terms, its exercise is governed by s 58 of the Act, which requires that, when deciding whether to grant an adjournment, “the court must seek to act in accordance with the dictates of justice,” in respect of which the court must have regard to ss 56 and 57 of the Civil Procedure Act. The exercise of s 66 is subject to the principles of case management set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27: Hamod v New South Wales [2011] NSWCA 375 at [139] ff, (Beazley JA, Giles and Whealy JJA agreeing); Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25 at [48]–[64].

20. In Thornberry v The Queen (1995) 69 ALJR 777, the High Court held per curiam (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) that the refusal of an adjournment which resulted in a party being unable to adequately present their case was a miscarriage of the Court’s discretion. This decision has been followed in civil matters: Singh v Deputy Commissioner of Taxation [2011] FCA 889; Kerr v American Express Australia Ltd [2009] FCA 1219; Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962; Cohen v McWilliam (1995) 38 NSWLR 478 (Court of Appeal).

21. It is not only the interests of the party to the instant proceedings which ought to be considered; an adjournment necessitates a further appointment of a hearing date which will inevitably delay other parties from obtaining a hearing: Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 at [58] per Davies J. Thus, the notion that adjournments can simply be met by an appropriate costs order is no longer an acceptable approach: ANZ v Mio Amico at [59], citing Aon at [99]-[101].

Consideration

22. I do understand that the lot owners have been enduring litigation for some years, at some cost and personal discomfort. The problem before the Court, however, is brought about by the late service of further liability evidence by the plaintiff, which has placed the defendants in a difficult position.

23. Whilst the plaintiff submitted that the task of responding to the additional liability evidence is more confined than the defendants think, I consider that it is unfair to require the defendants to respond to this material in a far shorter timeframe than it took the plaintiff to compile it. By my count, it took 3 and a half months for the plaintiff to obtain the additional reports referred to in their letter of 28 May 2025. If one were to allow the same time for the defendants to reply to those reports, that would take us to New Years Eve, that is, after the scheduled trial has concluded. Further, to require the defendants to respond to this material before trial will distract them from undertaking the usual preparations for trial.

24. I am loathe to lose a trial date, where these proceedings have been on foot for some time. But it is apparent that what is being asked of the defendants is unfair and likely unachievable. Further, even if the defendants’ liability experts provide their reports by mid to late November (noting that one of the experts cannot do this), this does not allow sufficient time for the experts in each discipline to prepare a further joint report before the commencement of the trial on 1 December 2025. While the plaintiff’s submitted that the same task could effectively be undertaken in an expert conclave during the trial, this rather places the burden of collating the experts’ views on each additional matter onto the Court. And this is before one considers the task of responding to Mr Ball’s quantum evidence.

25. Having regard to the quantum of the claim, and in the circumstances I have endeavoured to describe, I consider that it is in accordance with the dictates of justice to vacate the trial. This will enable the defendants to consider and respond to the late-served liability and quantum evidence.

26. For these reasons I make the following orders:

1. Vacate the hearing commencing on 1 December 2025.

2. Order the plaintiff to pay the defendants’ costs of the notice of motion filed on 30 September 2025.

3. Order the plaintiff to pay the defendants’ costs thrown away by reason of vacation of the hearing.

4. List the matter for trial commencing on 22 June 2026 with a hearing length of ten days.

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Decision last updated: 10 October 2025