The Owners Strata Plan No. 94784 v Mirvac Projects Pty Ltd (No 2)

[2024] NSWSC 782

Supreme Court

New South Wales

Medium Neutral Citation:	The Owners - Strata Plan No. 94784 v Mirvac Projects Pty Ltd (No 2) [2024] NSWSC 782
Hearing dates:	21 June 2024
Date of orders:	21 June 2024
Decision date:	21 June 2024
Jurisdiction:	Equity - Technology and Construction List
Before:	Stevenson J
Decision:	Grant leave to the plaintiff to rely upon its supplementary expert reports; plaintiff to pay the costs of the defendant on a gross sum basis; solicitor on the record for the plaintiff to show cause why he should not personally meet the costs order made in relation to the plaintiff's motion for leave
Catchwords:	CIVIL PROCEDURE – guillotine orders – expert reports served late in face of guillotine order – whether leave to rely on late served reports should be granted – where evidence is of importance to plaintiff’s case – where no specific prejudice to the defendant – where no suggestion that the plaintiff itself is responsible for the delay – where solicitor to show cause why he should not pay costs of the application and not charge plaintiff for work done in relation to the application
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Cases Cited:	The Owners - Strata Plan No. 94784 v Mirvac Projects Pty Ltd [2024] NSWSC 741
Category:	Procedural rulings
Parties:	The Owners - Strata Plan No. 94784 (Plaintiff/Applicant) Mirvac Projects Pty Ltd (First Defendant/Respondent) Mirvac Constructions Pty Ltd (Second Defendant/Respondent)
Representation:	Counsel: F Corsaro SC (Plaintiff/Applicant) R Cheney SC / A A Cameron (Defendants/Respondents) Solicitors: Chambers Russell Lawyers (Plaintiff/Applicant) Kennedys (Australasia) Pty Ltd (Defendants/Respondents)
File Number(s):	2022/382395

EX TEMPORE JUDGMENT (revised)

1. The background of this matter is set out in my judgment of 14 June 2024 in The Owners - Strata Plan No. 94784 v Mirvac Projects Pty Ltd [2024] NSWSC 741. At [23] of that judgment, I said:

“The Owners Corporation should serve any further evidence on which it relies in support of its motion by 5pm on Wednesday 19 June 2024. To the extent that the evidence is from the Owners Corporation’s lawyers it should be from the solicitor on the record. It should include that solicitor’s proposals concerning the extent to which the Owners Corporation should itself bear the costs of this application, including such costs as may be ordered against the Owners Corporation, a matter about which I have not yet formed any view.”

2. Taking up that invitation, the plaintiff has caused there to be served an affidavit of Mr Daniel Russell, the principal at Chambers Russell Lawyers, dealing with the matter on behalf of the plaintiff, of 19 June 2024. Mr Russell has also provided a document called “Plaintiff’s Further Submissions” in which he sets out further matters in relation to the reasons for the late service of the evidence the subject of my earlier judgment.

3. It is fair to say that, in those two documents, Mr Russell gives an explanation for what has occurred which is more complete than that which was previously before the Court.

4. Before turning to the adequacy of the explanation, I should make three things clear.

5. One is that I accept that this was a large case. The plaintiff Owners Corporation seeks to recover damages in excess of $50 million.

6. I also accept that the evidence that has been served in the face of the 16 November 2023 guillotine order is of obvious importance to the plaintiff’s case. I accept that the Owners Corporation’s case will be prejudiced if it is not granted leave to rely upon the expert evidence.

7. Further, as I said in the earlier judgment, the defendant has not yet been ordered to serve its evidence and accepts that, apart from the prejudice implicit in any delay, it cannot point to any other specific prejudice.

8. Further, as Mr Cheney SC and Ms Cameron for the defendants have very fairly pointed out in their written submissions, there is no suggestion that the Owners Corporation itself is responsible for the delay that has occurred.

9. As Mr Corsaro SC, who appears today for the plaintiff, has pointed out concerning the manner in which I should exercise my discretion about this matter, I must be informed by what the dictates of justice require. There is no part of the discretion given to me under ss 56-58 of the Civil Procedure Act 2005 (NSW) to punish the plaintiff for what has happened.

10. In all the circumstances, I am persuaded that, notwithstanding the matters that I have set out in my earlier judgment, I should grant the plaintiff the leave it seeks to rely upon the expert evidence. However, the plaintiff must pay the costs of the defendant and I will, in due course, hear an application by the defendant that those costs be assessed on a gross sum basis.

11. I am troubled by the nature of the explanation that has now been given by the legal representatives of the plaintiff for what has occurred. I am concerned about whether it will be appropriate that those advising the plaintiff, rather than the Owners Corporation itself, should bear the costs of this application.

12. In those circumstances, I direct that by 26 July 2024 Mr Russell show cause why he should not personally meet the costs order that I have made in relation to the plaintiff’s motion for leave, and why he should not be directed to not make any charge to the plaintiff in relation to the costs that have been incurred in relation to the motion.

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Decision last updated: 25 June 2024