Weekes v Vandervelde t/as Molong Ready Mixed Concrete [2021] NSWDC 824

Weekes v Vandervelde t/as Molong Ready Mixed Concrete [2021] NSWDC 824

Exceptional circumstances existed due to defendants serving their evidence late, which resulted in plaintiff's reply evidence necessarily being late. The engineer's report was reply evidence, and fairness required leave to rely on it, while leave for the quantity surveyor's report was refused as it would jeopardize the hearing date without a bifurcation or referee to hear damages.

Parties
Plaintiff: Toby Weekes; First Defendant: Dustin Vandervelde t/as Molong Ready Mixed Concrete; Second Defendant: Lisa Vandervelde t/as Molong Ready Mixed Concrete
Jurisdiction
Australia
Judgment Date
07 October 2021
Procedural Posture
Civil / Interlocutory Motion
Outcome
Interlocutory motion partly granted, leave for engineer's report and reply report, leave for quantity surveyor's report refused.
Legal Topics
Extension of Time, Expert Report, Leave to Rely, Exceptional Circumstances
Civil Procedure Extension of Time Expert Report Leave to Rely Exceptional Circumstances

Case Brief

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Parties

Toby Weekes

Plaintiff

Dustin Vandervelde t/as Molong Ready Mixed Concrete

First Defendant

Lisa Vandervelde t/as Molong Ready Mixed Concrete

Second Defendant

Procedural Posture

Civil / Interlocutory Motion

Legal Issues

  1. 1 Whether leave should be granted to rely on two expert reports, one by an engineer and one by a quantity surveyor
  2. 2 Whether the engineer's report constitutes reply evidence and exceptional circumstances exist under r 31.28

Ratio Decidendi

Exceptional circumstances existed due to defendants serving their evidence late, which resulted in plaintiff's reply evidence necessarily being late. The engineer's report was reply evidence, and fairness required leave to rely on it, while leave for the quantity surveyor's report was refused as it would jeopardize the hearing date without a bifurcation or referee to hear damages.

Court Disposition

Interlocutory motion partly granted, leave for engineer's report and reply report, leave for quantity surveyor's report refused.

Orders

  • Make orders 1, 3 (but not 3c) and 5 sought in the notice of motion filed 24 September 2021.
  • Grant leave to the defendants to serve a reply report of Mr Mahaffey by 21 October 2021.