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

The Owners Strata Plan No. 94784 (the Plaintiff) brought proceedings against Mirvac Projects Pty Ltd (the Defendant) in relation to alleged defects in a strata title property. The dispute was heard in the Supreme Court of New South Wales. The Plaintiff sought leave to serve expert reports that had been served outside the time limits set by a previous guillotine order. The Plaintiff argued that the reports were of significant importance to its case and that the Defendant had not suffered any prejudice as a result of the delay.

The court considered whether it should grant the Plaintiff leave to serve the late reports and whether the solicitor who had caused the delay should be ordered to personally pay the costs of the application and refrain from charging the Plaintiff for work done in relation to the application. The court held that the evidence contained in the reports was of considerable importance to the Plaintiff’s case and that the Defendant had not suffered any prejudice as a result of the delay. The court also noted that there was no suggestion that the Plaintiff or its solicitor was responsible for the delay in serving the reports. The court granted the Plaintiff leave to serve the reports and ordered the solicitor to show cause why he should not be personally liable for the costs of the application and restrained from charging the Plaintiff for the work done in relation to the application.

The court further held that the solicitor had an obligation to ensure that the reports were served within the relevant time limits and that his failure to do so was inexcusable. The court also noted that the Plaintiff had not acted unreasonably in seeking to serve the reports and that the delay had not caused any prejudice to the Defendant. The court ordered the solicitor to personally pay the costs of the application and to refrain from charging the Plaintiff for work done in relation to the application. The Plaintiff was granted leave to serve the late reports and the proceedings continued on the merits.