Hooper v Coolwater Constructions Pty Ltd [2019] NSWDC 253

Hooper v Coolwater Constructions Pty Ltd [2019] NSWDC 253

The plaintiffs had not provided a satisfactory explanation for seeking, six weeks before the hearing, to resile from the notation and agreement on which the hearing date was allocated. Much of the proposed lay material was new rather than reply evidence, and there was no material establishing exceptional circumstances for leave to rely on the late supplementary expert report under UCPR r 31.28(4). The proper course was to dismiss the notice of motion, preserve the ability to identify genuine reply evidence for the trial judge, require an expert conclave and joint report, and order indemnity costs because of the significant failure to comply with rules, practice notes and the prior listing...

Jurisdiction
Australia
Judgment Date
12 June 2019
Procedural Posture
Civil Proceedings Concerning Residential Building Works; Practice and Procedure Ruling / Plaintiffs' Notice of Motion for Leave to Rely on Late Served Lay and Expert Evidence Before Trial
Outcome
Plaintiffs' notice of motion filed on 24 May 2019 dismissed; case management orders made; plaintiffs ordered to pay the defendant's costs of the notice of motion on an indemnity basis.
Legal Topics
['case and Trial Management' 'late Served Evidence' 'expert Evidence' 'evidence in Reply' 'indemnity Costs' 'circuit Court Sittings']
['civil Procedure' 'practice and Procedure' 'evidence' 'costs'] ['case and Trial Management' 'late Served Evidence' 'expert Evidence' 'evidence in Reply' 'indemnity Costs' 'circuit Court Sittings']

Case Brief

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Procedural Posture

Civil Proceedings Concerning Residential Building Works; Practice and Procedure Ruling / Plaintiffs' Notice of Motion for Leave to Rely on Late Served Lay and Expert Evidence Before Trial

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to rely on late-served lay affidavits and a supplementary expert report shortly before the listed hearing.' 'Whether the plaintiffs should be permitted to go behind the notation made when the proceedings were set down for hearing that the court would determine what evidence was strictly in reply and any evidence not in reply would not be read.' 'Whether exceptional circumstances under UCPR r 31.28(4) justified leave to rely on the late expert report.' 'Whether the defendant should receive indemnity costs of the notice of motion.']

Ratio Decidendi

The plaintiffs had not provided a satisfactory explanation for seeking, six weeks before the hearing, to resile from the notation and agreement on which the hearing date was allocated. Much of the proposed lay material was new rather than reply evidence, and there was no material establishing exceptional circumstances for leave to rely on the late supplementary expert report under UCPR r 31.28(4). The proper course was to dismiss the notice of motion, preserve the ability to identify genuine reply evidence for the trial judge, require an expert conclave and joint report, and order indemnity costs because of the significant failure to comply with rules, practice notes and the prior listing...

Court Disposition

Plaintiffs' notice of motion filed on 24 May 2019 dismissed; case management orders made; plaintiffs ordered to pay the defendant's costs of the notice of motion on an indemnity basis.

Orders

  • ['The plaintiffs to file and serve a schedule identifying each part of the evidence which is claimed to be in reply by 25 June 2019.' "The defendant to file and serve a response to the plaintiffs' schedule by 9 July 2019." 'The experts attend a conclave and prepare a joint expert report by 22 July 2019.'...