The Owners Strata Plan 99170 v MN Builders Pty Ltd

In this case, the plaintiff, The Owners Strata Plan 99170, brought an action against MN Builders Pty Ltd, the builder, for alleged breaches of contract and statutory obligations under the Home Building Act 1989 (NSW) and the Australian Consumer Law. The dispute centred around the construction of a strata title unit in Sydney, which the plaintiff claimed was defective and did not meet the required standards. The matter was set for a trial at the Supreme Court of New South Wales, but before the trial could commence, the plaintiff served a substantial body of further evidence regarding liability and quantum.

The court was required to determine whether the trial should proceed as fixed or whether the plaintiff's late service of additional evidence warranted vacating the trial. The central legal issues included whether the principles governing the vacating of trials applied and whether the plaintiff had acted with sufficient diligence in serving the additional evidence. The court considered whether the late service of evidence could be justified by the circumstances, and whether the defendant would be prejudiced if the trial were to proceed.

The court found that the principles guiding the vacating of trials were applicable and that the plaintiff had not acted with sufficient diligence. The judge emphasised that the trial had already been fixed for a considerable period and that the plaintiff's delay in serving the additional evidence was inordinate. The court held that the defendant would be prejudiced if the trial proceeded, given the need to rearrange their schedules and the potential impact on their ability to prepare adequately. Consequently, the trial was vacated, and the matter was remanded for further consideration.

The court ordered that the matter be listed for a new trial date and that the plaintiff pay the defendant's costs associated with the vacated trial. The plaintiff was also directed to provide an undertaking to serve any further evidence at least 28 days before the new trial date, to ensure that both parties had sufficient time to prepare and that the trial could proceed without further interruptions.