Bannister & Hunter v Transition Resort Holdings [2013] NSWSC 1669

Bannister & Hunter v Transition Resort Holdings [2013] NSWSC 1669

The pavement box out issue was sufficiently within the pleaded allegation that Bannister & Hunter failed to design the bulk earthworks so as to minimise cost, and although the particulars were deficient, Transition's expert reports expressly raised the issue. Bannister & Hunter's lawyers and Mr Barclay were aware of it well before trial and had ample opportunity to meet it. Accordingly, Bannister & Hunter was not deprived of an opportunity to respond, and the voir dire evidence on the issue should be admitted.

Jurisdiction
Australia
Judgment Date
07 November 2013
Procedural Posture
Equity Division Technology and Construction List; Procedural Ruling on Admissibility and Pleadings in Cross Claim / Ex Tempore Ruling During Hearing on Whether Evidence Taken on Voir Dire Should Be Admitted and Whether Transition Could Rely on the Pavement Box Out Issue
Outcome
Evidence taken on the voir dire admitted for all purposes; Transition permitted to rely on the pavement box out issue in its cross-claim for damages.
Legal Topics
['sufficiency of Particulars' 'notice of Pleaded Case' 'expert Evidence' 'voir Dire Evidence' 'negligent Design of Bulk Earthworks']
['practice and Procedure' 'pleadings' 'evidence' 'technology and Construction'] ['sufficiency of Particulars' 'notice of Pleaded Case' 'expert Evidence' 'voir Dire Evidence' 'negligent Design of Bulk Earthworks']

Case Brief

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Procedural Posture

Equity Division Technology and Construction List; Procedural Ruling on Admissibility and Pleadings in Cross Claim / Ex Tempore Ruling During Hearing on Whether Evidence Taken on Voir Dire Should Be Admitted and Whether Transition Could Rely on the Pavement Box Out Issue

Legal Issues

  1. 1 ["Whether Transition's pavement box out complaint fell within its pleaded cross-claim and particulars concerning failure to properly design the bulk earthworks." 'Whether Bannister & Hunter had adequate notice of the pavement box out issue despite generally expressed pleadings and particulars referring to expert reports.' 'Whether evidence taken on the voir dire about the pavement box out issue should be admitted on the trial.']

Ratio Decidendi

The pavement box out issue was sufficiently within the pleaded allegation that Bannister & Hunter failed to design the bulk earthworks so as to minimise cost, and although the particulars were deficient, Transition's expert reports expressly raised the issue. Bannister & Hunter's lawyers and Mr Barclay were aware of it well before trial and had ample opportunity to meet it. Accordingly, Bannister & Hunter was not deprived of an opportunity to respond, and the voir dire evidence on the issue should be admitted.

Court Disposition

Evidence taken on the voir dire admitted for all purposes; Transition permitted to rely on the pavement box out issue in its cross-claim for damages.

Orders

  • ['Evidence taken on the voir dire on the pavement box out issue is admitted on the trial.' 'Transition is entitled to rely on the pavement box out issue as one properly raised in its claim for damages pursuant to its cross-claim.']