Votraint No. 1019 Pty Ltd v Zauner Construction Pty Ltd [2023] NSWSC 1055

Votraint No. 1019 Pty Ltd v Zauner Construction Pty Ltd [2023] NSWSC 1055

Leave under UCPR r 31.29(5) should be granted because, although the Builder would suffer some prejudice from being unable to cross-examine Mr Jones, refusal would likely cause significant prejudice to the Owner where the alleged defects had largely or wholly been rectified and the report was the only independent expert report prepared after inspection of the actual alleged defects. Mr Jones' unavailability was not due to any want of diligence by the Owner, the Builder had not obtained its own expert report despite receiving the report in 2019, many objections to the report had substantially reduced its scope, photographs could in any event be tendered, the Builder could still challenge...

Jurisdiction
Australia
Judgment Date
01 September 2023
Procedural Posture
Equity Technology and Construction List; Procedural Ruling Concerning Use of Expert Report / Interlocutory Application for Advance Ruling Under S 192 a of the Evidence Act 1995 (nsw) and Leave Under UCPR R 31.29(5)
Outcome
Plaintiff granted leave under UCPR r 31.29(5) to use the expert report notwithstanding that its author is not available for cross-examination.
Legal Topics
['expert Evidence' 'admissibility of Expert Report' 'cross Examination of Expert' 'advance Ruling' 'home Building Statutory Warranties' 'case Management and Interests of Justice']
['evidence' 'civil Procedure' 'building and Construction'] ['expert Evidence' 'admissibility of Expert Report' 'cross Examination of Expert' 'advance Ruling' 'home Building Statutory Warranties' 'case Management and Interests of Justice']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Procedural Ruling Concerning Use of Expert Report / Interlocutory Application for Advance Ruling Under S 192 a of the Evidence Act 1995 (nsw) and Leave Under UCPR R 31.29(5)

Legal Issues

  1. 1 ['Whether the Court should make an advance ruling under s 192A of the Evidence Act 1995 (NSW) about the admissibility of the expert report where its author cannot be called.' 'Whether the plaintiff should be granted leave under r 31.29(5) of the Uniform Civil Procedure Rules 2005 (NSW) to use an expert report when the expert is unavailable for cross-examination.' 'Whether permitting use of the report would unfairly prejudice the defendant, particularly because the alleged defects had been rectified before the proceedings were commenced.']

Ratio Decidendi

Leave under UCPR r 31.29(5) should be granted because, although the Builder would suffer some prejudice from being unable to cross-examine Mr Jones, refusal would likely cause significant prejudice to the Owner where the alleged defects had largely or wholly been rectified and the report was the only independent expert report prepared after inspection of the actual alleged defects. Mr Jones' unavailability was not due to any want of diligence by the Owner, the Builder had not obtained its own expert report despite receiving the report in 2019, many objections to the report had substantially reduced its scope, photographs could in any event be tendered, the Builder could still challenge...

Court Disposition

Plaintiff granted leave under UCPR r 31.29(5) to use the expert report notwithstanding that its author is not available for cross-examination.

Orders

  • ['The Owner is to be granted the leave it seeks under r 31.29(5) of the Uniform Civil Procedure Rules 2005 (NSW).' 'The parties should bring in short minutes to give effect to the reasons and to make provision for directions needed to progress the matter.']