Flitcroft v Cassidy Constructions Pty Ltd t/as Buildscene [2023] NSWCATCD 26

Flitcroft v Cassidy Constructions Pty Ltd t/as Buildscene [2023] NSWCATCD 26

Leave to file the supplementary expert statement was refused because the proposed evidence was only a change of the expert's mind based on the same material, was not shown to most probably affect the result, could have been available had the expert exercised his mind more thoroughly before giving his opinion, would prejudice the respondent by causing delay and further expert steps, was not so material that the interests of justice required its admission, and granting leave would be inconsistent with the guiding principle of just, quick and cheap resolution of the real issues.

Jurisdiction
Australia
Judgment Date
15 March 2023
Procedural Posture
Consumer and Commercial Division Home Building Proceeding / Interlocutory Application During a Part Heard Hearing to File a Supplementary Expert Report and for Ancillary Orders After Expert Evidence Had Concluded
Outcome
Application dismissed; costs submissions timetable set; hearing date confirmed.
Legal Topics
['application to Reopen Expert Evidence Component of Proceedings' 'supplementary Expert Report After Change of Opinion' 'fresh or Further Evidence' 'prejudice and Delay' 'ncat Guiding Principle']
['practice and Procedure' 'expert Evidence' 'civil and Administrative Tribunal Procedure' 'costs'] ['application to Reopen Expert Evidence Component of Proceedings' 'supplementary Expert Report After Change of Opinion' 'fresh or Further Evidence' 'prejudice and Delay' 'ncat Guiding Principle']

Case Brief

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Procedural Posture

Consumer and Commercial Division Home Building Proceeding / Interlocutory Application During a Part Heard Hearing to File a Supplementary Expert Report and for Ancillary Orders After Expert Evidence Had Concluded

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to file and serve a supplementary statement of their expert Mr Aaron Kyle after the expert evidence component of the hearing had concluded.' 'Whether the proposed further expert evidence was sufficiently material and likely to affect the result to justify reopening the expert evidence component.' 'Whether the further evidence could have been provided earlier with reasonable diligence and whether its admission would prejudice the respondent.' 'Whether granting leave would be consistent with the guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

Leave to file the supplementary expert statement was refused because the proposed evidence was only a change of the expert's mind based on the same material, was not shown to most probably affect the result, could have been available had the expert exercised his mind more thoroughly before giving his opinion, would prejudice the respondent by causing delay and further expert steps, was not so material that the interests of justice required its admission, and granting leave would be inconsistent with the guiding principle of just, quick and cheap resolution of the real issues.

Court Disposition

Application dismissed; costs submissions timetable set; hearing date confirmed.

Orders

  • ["The applicant's application to file the supplementary report of Mr Kyle and for ancillary orders is dismissed." 'If the respondent seeks costs, it should file submissions within 14 days. Those submissions must identify the relevant costs rule, and the reason why the respondent says it is entitled to costs.' 'The...