The Owners – Strata Plan No 89074 v Ceerose Pty Ltd & Anor [2020] NSWSC 854

The Owners – Strata Plan No 89074 v Ceerose Pty Ltd & Anor [2020] NSWSC 854

Leave was granted because the plaintiff provided an explanation for the 17 business day delay that was accepted as not unreasonable, the defendants failed to identify any step they could have taken between 3 and 30 April 2020 or any time limit that expired in that period, and the prejudice to the plaintiff if leave were refused was obvious because it could not prove the quantum of its claim.

Jurisdiction
Australia
Judgment Date
02 July 2020
Procedural Posture
Equity Technology and Construction List; Procedural Ruling in Building Defects Proceedings / Plaintiff's Application for Leave to Rely on Expert Quantum Evidence Served Out of Time
Outcome
Plaintiff granted leave to rely on affidavit served out of time.
Legal Topics
['expert Evidence' 'guillotine Order' 'leave to Rely on Evidence Served Out of Time' 'prejudice' 'costs in the Cause']
['civil Procedure' 'technology and Construction' 'building Defects'] ['expert Evidence' 'guillotine Order' 'leave to Rely on Evidence Served Out of Time' 'prejudice' 'costs in the Cause']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Procedural Ruling in Building Defects Proceedings / Plaintiff's Application for Leave to Rely on Expert Quantum Evidence Served Out of Time

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely on the report of Mr Robert Macansh dated 29 April 2020, served 17 business days after the due date.' 'Whether the defendants demonstrated prejudice caused by the late service of the report.']

Ratio Decidendi

Leave was granted because the plaintiff provided an explanation for the 17 business day delay that was accepted as not unreasonable, the defendants failed to identify any step they could have taken between 3 and 30 April 2020 or any time limit that expired in that period, and the prejudice to the plaintiff if leave were refused was obvious because it could not prove the quantum of its claim.

Court Disposition

Plaintiff granted leave to rely on affidavit served out of time.

Orders

  • ['The plaintiff is granted leave to rely on the report prepared by Mr Robert Macansh dated 29 April 2020.' "The costs of the plaintiff's application are the defendants' costs in the cause."]