Robust Builders Pty Ltd v Barai & Anor (No.4) [2023] NSWDC 374

Robust Builders Pty Ltd v Barai & Anor (No.4) [2023] NSWDC 374

The applications were brought too late, after the evidence of both sides was complete, and granting them would necessitate a substantial adjournment, likely cause irrecoverable costs and procedural injustice to the owners, negate earlier case management directions, and undermine the efficient and timely disposal of this and other proceedings. The proposed inspection and expert report substantially replicated an earlier unsuccessful attempt to adduce reply evidence. The proposed witness applications had doubtful procedural foundation, marginal utility, and in relation to the lawyers would likely encounter client legal privilege. Acceding to the five applications would be antithetical to...

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Civil Procedural Applications in Residential Building Dispute / Day 10 of Hearing; Five Notices of Motion Seeking Property Inspection and Attendance of Persons for Cross Examination
Outcome
Five notices of motion dismissed.
Legal Topics
['overriding Purpose' 'case Management' 'property Inspection' 'expert Evidence' 'witness Attendance' 'cross Examination' 'adjournment' 'client Legal Privilege']
['civil Procedure' 'building and Construction'] ['overriding Purpose' 'case Management' 'property Inspection' 'expert Evidence' 'witness Attendance' 'cross Examination' 'adjournment' 'client Legal Privilege']

Case Brief

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Procedural Posture

Civil Procedural Applications in Residential Building Dispute / Day 10 of Hearing; Five Notices of Motion Seeking Property Inspection and Attendance of Persons for Cross Examination

Legal Issues

  1. 1 ['Whether the plaintiff/cross-defendant should be granted an order enabling a building expert to inspect the property during the hearing.' 'Whether the plaintiff/cross-defendant should be granted orders permitting Mr Mehndiratta to cross-examine persons who had not presently given evidence.' 'Whether the Court had power to make the orders sought for attendance and cross-examination of persons.' 'Whether granting the applications would be consistent with the dictates of justice and the just, quick and cheap resolution of the real issues in the proceedings.']

Ratio Decidendi

The applications were brought too late, after the evidence of both sides was complete, and granting them would necessitate a substantial adjournment, likely cause irrecoverable costs and procedural injustice to the owners, negate earlier case management directions, and undermine the efficient and timely disposal of this and other proceedings. The proposed inspection and expert report substantially replicated an earlier unsuccessful attempt to adduce reply evidence. The proposed witness applications had doubtful procedural foundation, marginal utility, and in relation to the lawyers would likely encounter client legal privilege. Acceding to the five applications would be antithetical to...

Court Disposition

Five notices of motion dismissed.

Orders

  • ['The five notices of motion are each dismissed.']