Robust Builders Pty Ltd v Barai & Anor (No.2) [2023] NSWDC 372

Robust Builders Pty Ltd v Barai & Anor (No.2) [2023] NSWDC 372

The application was refused because it was made too late, no affidavit from Ms Devi had been served, the explanation for not serving one earlier was inadequate, the Court and owners did not know what evidence she would give, and allowing her evidence would likely prejudice the owners, require responsive evidence, and cause another adjournment of a long-delayed proceeding contrary to the just, quick and cheap determination of the real issues in dispute.

Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Civil Proceeding Concerning a Builder's Claim for Unpaid Invoices and Value of Equipment Not Restored, and Owners' Cross Claim for Damages for Allegedly Incomplete and Defective Works / Procedural Application by the Plaintiff/cross Defendant to Call a Witness to Give Oral Evidence
Outcome
Application refused
Legal Topics
['witness Evidence' 'affidavit Evidence' 'case Management Directions' 'late Evidence' 'adjournment Prejudice']
['civil Procedure' 'construction Disputes'] ['witness Evidence' 'affidavit Evidence' 'case Management Directions' 'late Evidence' 'adjournment Prejudice']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Proceeding Concerning a Builder's Claim for Unpaid Invoices and Value of Equipment Not Restored, and Owners' Cross Claim for Damages for Allegedly Incomplete and Defective Works / Procedural Application by the Plaintiff/cross Defendant to Call a Witness to Give Oral Evidence

Legal Issues

  1. 1 ['Whether the builder should be permitted to call Ms Sanya Devi to give oral evidence despite prior directions that evidence be served in written form by affidavit.' 'Whether the lateness of the proposed evidence and lack of prior affidavit evidence justified refusal of the application.' 'Whether permitting the evidence would prejudice the owners and likely require adjournment of the hearing.']

Ratio Decidendi

The application was refused because it was made too late, no affidavit from Ms Devi had been served, the explanation for not serving one earlier was inadequate, the Court and owners did not know what evidence she would give, and allowing her evidence would likely prejudice the owners, require responsive evidence, and cause another adjournment of a long-delayed proceeding contrary to the just, quick and cheap determination of the real issues in dispute.

Court Disposition

Application refused

Orders

  • ["Mr Mehndiratta's application to 'add a witness' to give evidence in Court is refused."]