Diane Elva May Harris v Perry Homes (Aust) Pty Limited & Anor [2021] NSWDC 756

Diane Elva May Harris v Perry Homes (Aust) Pty Limited & Anor [2021] NSWDC 756

Leave to adduce Dr Cuniffe's report on liability is refused because it exceeds the quantum-only scope granted and admitting such evidence would be unfair to the defendants, potentially multiplying the number of experts beyond what is necessary or justifiable. However, leave is granted to file and serve an edited expert report restricted to quantum (rectification and demolition costs).

Parties
Plaintiff: Diane Elva May Harris; First Defendant: Perry Homes (Aust) Pty Limited; Second Defendant: Jenkins trading as Col Jenkins and Associates
Jurisdiction
Australia
Judgment Date
04 November 2021
Procedural Posture
Civil / Interlocutory Application on Notice of Motion for Leave to Amend Pleadings and Adduce Expert Evidence
Outcome
Leave to amend statement of claim granted. Application for leave to rely on Dr Cuniffe's whole report (liability and quantum) refused. Leave granted to adduce edited expert evidence on rectification and demolition costs. Costs of notice of motion are defendants' costs in the cause.
Legal Topics
Expert Evidence, Leave to Amend Pleadings, Negligence, Rectification Costs
Civil Procedure Building and Construction Law Expert Evidence Leave to Amend Pleadings Negligence Rectification Costs

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Parties

Diane Elva May Harris

Plaintiff

Perry Homes (Aust) Pty Limited

First Defendant

Jenkins trading as Col Jenkins and Associates

Second Defendant

Procedural Posture

Civil / Interlocutory Application on Notice of Motion for Leave to Amend Pleadings and Adduce Expert Evidence

Legal Issues

  1. 1 Whether leave should be granted to file a further amended statement of claim
  2. 2 Whether leave should be granted to adduce expert evidence going to liability as well as quantum
  3. 3 Appropriate limitation and control of expert evidence under UCPR 31 Division 2

Ratio Decidendi

Leave to adduce Dr Cuniffe's report on liability is refused because it exceeds the quantum-only scope granted and admitting such evidence would be unfair to the defendants, potentially multiplying the number of experts beyond what is necessary or justifiable. However, leave is granted to file and serve an edited expert report restricted to quantum (rectification and demolition costs).

Court Disposition

Leave to amend statement of claim granted. Application for leave to rely on Dr Cuniffe's whole report (liability and quantum) refused. Leave granted to adduce edited expert evidence on rectification and demolition costs. Costs of notice of motion are defendants' costs in the cause.

Orders

  • Leave granted to the plaintiff to file and serve a further amended statement of claim in the form of the document entitled 'second further amended statement of claim'.
  • The second prayer for relief is refused.