Strata Plan 99960 v SPS Building Contractors Pty Ltd (No 2) [2023] NSWSC 1064

Strata Plan 99960 v SPS Building Contractors Pty Ltd (No 2) [2023] NSWSC 1064

The Builder was granted leave to rely on the late-served expert evidence and Scott Schedule because the proceedings had not been set down for hearing, the hearing would not occur until the first half of the next year, the Owners Corporation would have sufficient time to serve reply evidence and would suffer no prejudice, and the Builder would suffer real prejudice if unable to rely on quantum evidence. Leave to file the cross-claim was refused because it would likely cause very substantial further delay in a case already delayed by the Builder, the Builder had no adequate explanation for waiting after it knew the case it had to meet and the potential cross-defendants, and the Builder...

Jurisdiction
Australia
Judgment Date
06 September 2023
Procedural Posture
Equity Technology and Construction List; Procedural Ruling in Home Building Defects Proceedings / Notice of Motion Filed on 11 August 2023 Seeking Leave to Rely on Evidence Served on 26 July 2023 and to File a Cross Summons and Cross Claim List Statement Joining Six Cross Defendants
Outcome
Leave granted in part and refused in part; notice of motion otherwise dismissed; each party to pay its own costs of the notice of motion.
Legal Topics
['leave to Rely on Evidence Served After Guillotine Orders' 'scott Schedule' 'late Cross Claim' 'delay' 'prejudice' 'costs of Notice of Motion']
['civil Procedure' 'building and Construction' 'home Building Defects'] ['leave to Rely on Evidence Served After Guillotine Orders' 'scott Schedule' 'late Cross Claim' 'delay' 'prejudice' 'costs of Notice of Motion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Technology and Construction List; Procedural Ruling in Home Building Defects Proceedings / Notice of Motion Filed on 11 August 2023 Seeking Leave to Rely on Evidence Served on 26 July 2023 and to File a Cross Summons and Cross Claim List Statement Joining Six Cross Defendants

Legal Issues

  1. 1 ['Whether the Defendant should be permitted to rely on evidence in chief and a Scott Schedule served after the deadline in a guillotine order.' 'Whether the Defendant should be granted leave to file a cross-claim joining six subcontractors after substantial delay.' 'What costs order should be made where both parties had partial success on the notice of motion.']

Ratio Decidendi

The Builder was granted leave to rely on the late-served expert evidence and Scott Schedule because the proceedings had not been set down for hearing, the hearing would not occur until the first half of the next year, the Owners Corporation would have sufficient time to serve reply evidence and would suffer no prejudice, and the Builder would suffer real prejudice if unable to rely on quantum evidence. Leave to file the cross-claim was refused because it would likely cause very substantial further delay in a case already delayed by the Builder, the Builder had no adequate explanation for waiting after it knew the case it had to meet and the potential cross-defendants, and the Builder...

Court Disposition

Leave granted in part and refused in part; notice of motion otherwise dismissed; each party to pay its own costs of the notice of motion.

Orders

  • ['Order 2 made on 16 March 2023 be varied such that it reads: "The Defendant may not rely on evidence in chief in response to the Plaintiffs\' claim served after 12 May 2023 without leave of the Court."' 'The Defendant be granted leave to rely upon the following evidence in chief, which was served on the Plaintiff...