The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1144

The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1144

Lay observational evidence served after the guillotine order is evidence-in-chief and can only be admitted with leave. Leave should generally not be given unless a satisfactory explanation for the delay is provided and the defendants are not prejudiced. In this instance, leave is granted to admit the evidence except for evidence relating to the April 2015 storm event, admission of which would prejudice the defendants by depriving them of the opportunity to inspect the premises contemporaneously.

Parties
Plaintiff: The Owners – Strata Plan No 74602; First Defendant: Brookfield Australia Investments Ltd; Second Defendant: Brookfield Multiplex Constructions Pty Ltd; Third Defendant: Multiplex Corporate Agency Pty Ltd; Fourth Defendant: G James Glass & Aluminium Pty Ltd
Jurisdiction
Australia
Judgment Date
11 August 2015
Procedural Posture
Procedural and Other Rulings / Interlocutory Application Regarding Admissibility of Evidence
Outcome
Leave granted in part to the plaintiff; evidence may be relied on except as to the April 2015 storm event.
Legal Topics
Admissibility of Evidence, Discretion to Exclude Evidence, Lay Observational Evidence, Guillotine Orders, Prejudice to Party
Evidence Civil Procedure Admissibility of Evidence Discretion to Exclude Evidence Lay Observational Evidence Guillotine Orders Prejudice to Party

Case Brief

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Parties

The Owners – Strata Plan No 74602

Plaintiff

Brookfield Australia Investments Ltd

First Defendant

Brookfield Multiplex Constructions Pty Ltd

Second Defendant

Multiplex Corporate Agency Pty Ltd

Third Defendant

G James Glass & Aluminium Pty Ltd

Fourth Defendant

Procedural Posture

Procedural and Other Rulings / Interlocutory Application Regarding Admissibility of Evidence

Legal Issues

  1. 1 Whether lay observational evidence adduced by the plaintiff after the cut-off date of the guillotine order is evidence-in-chief or in reply
  2. 2 If evidence-in-chief, whether leave should be granted to adduce such evidence
  3. 3 Whether the use of the evidence should be limited to exclude evidence of the April 2015 storm event

Ratio Decidendi

Lay observational evidence served after the guillotine order is evidence-in-chief and can only be admitted with leave. Leave should generally not be given unless a satisfactory explanation for the delay is provided and the defendants are not prejudiced. In this instance, leave is granted to admit the evidence except for evidence relating to the April 2015 storm event, admission of which would prejudice the defendants by depriving them of the opportunity to inspect the premises contemporaneously.

Court Disposition

Leave granted in part to the plaintiff; evidence may be relied on except as to the April 2015 storm event.

Orders

  • Leave granted to the plaintiff to rely on lay observational evidence apart from that relating to the April 2015 storm event, subject to proper objection as to form.
  • Plaintiff to pay the defendants' costs thrown away by the late service of Mr Gwodz's and Mr Moisidis's affidavits, including the costs of the day spent on the question.