LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity) v Thiess Pty Ltd [2022] NSWSC 317

LCT-MRE Nominees Pty Ltd (as trustee of the LCT-MRE Trust and in its personal capacity) v Thiess Pty Ltd [2022] NSWSC 317

The New Evidence was partly true reply insofar as it answered the defendants' Operation and Maintenance case, but insofar as it relied on new testing to support and augment the plaintiffs' earlier shotcrete defect case it was in substance evidence in chief and not wholly covered by the 30 April 2021 order. Nevertheless, leave should be granted because refusing leave would potentially prejudice the plaintiffs more seriously than the prejudice to the defendants and cross-defendants, and there was a public interest in identifying the true cause of alleged defects in the operating Lane Cove Tunnel. That prejudice was to be addressed by conditions limiting further evidence and by costs orders.

Jurisdiction
Australia
Judgment Date
23 March 2022
Procedural Posture
Commercial List Civil Proceedings Concerning Alleged Breach of a Design and Construct Contract for the Lane Cove Tunnel / Interlocutory Notice of Motion About Whether Plaintiffs Could Rely on Further Expert and Testing Evidence After Service of Evidence in Chief; Cross Defendants Had Not Yet Served Evidence and No Hearing Date Was Allocated
Outcome
Plaintiffs granted leave on terms to rely on the New Evidence.
Legal Topics
['leave to Rely on Further Expert Evidence' 'evidence in Chief and Evidence in Reply' 'guillotine Orders' 'case Management' 'costs Thrown Away' 'tunnel Defects and Shotcrete Deterioration']
['practice and Procedure' 'civil Procedure' 'commercial Litigation' 'expert Evidence' 'contract'] ['leave to Rely on Further Expert Evidence' 'evidence in Chief and Evidence in Reply' 'guillotine Orders' 'case Management' 'costs Thrown Away' 'tunnel Defects and Shotcrete Deterioration']

Case Brief

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Procedural Posture

Commercial List Civil Proceedings Concerning Alleged Breach of a Design and Construct Contract for the Lane Cove Tunnel / Interlocutory Notice of Motion About Whether Plaintiffs Could Rely on Further Expert and Testing Evidence After Service of Evidence in Chief; Cross Defendants Had Not Yet Served Evidence and No Hearing Date Was Allocated

Legal Issues

  1. 1 ['Whether the New Evidence comprised evidence in chief served contrary to the 24 May 2019 guillotine order requiring plaintiffs to serve evidence in chief by 19 September 2019 absent leave' "Whether the New Evidence was permitted by the consent order made on 30 April 2021 allowing further expert reports in reply to defendants' experts and/or in response to amendments to the List Response" 'Whether leave should be granted for the plaintiffs to rely on the New Evidence' 'What terms should be imposed as to further expert evidence, costs and access to the Tunnel']

Ratio Decidendi

The New Evidence was partly true reply insofar as it answered the defendants' Operation and Maintenance case, but insofar as it relied on new testing to support and augment the plaintiffs' earlier shotcrete defect case it was in substance evidence in chief and not wholly covered by the 30 April 2021 order. Nevertheless, leave should be granted because refusing leave would potentially prejudice the plaintiffs more seriously than the prejudice to the defendants and cross-defendants, and there was a public interest in identifying the true cause of alleged defects in the operating Lane Cove Tunnel. That prejudice was to be addressed by conditions limiting further evidence and by costs orders.

Court Disposition

Plaintiffs granted leave on terms to rely on the New Evidence.

Orders

  • ['The plaintiffs were permitted to rely on the New Evidence comprising the August 2021 reports of Mr John Braybrooke and Dr Stefan Bernard and the Testing Affidavits, together with short supplementary reports served in November 2021.' 'The plaintiffs, either directly or by solicitors, were not to take any step to...