a" a JUDGMENT No. SAA. 84 CATCHWORDS PRACTICE ~- Court appointed expert - when application appropriate. Federal Court Rules, 0.34 Newark Pty. Ltd. (Receivers Appointed) (In Liquidation) v. Civil & Civic Pty. Ltd. & Anor. Qld G86 of 1987 PINCUS J. BRISBANE 12 OCTOBER 1987 DERAL COURT OF Fe AUSTRALIA PRINCIPAL REGISTRY IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G86 of 1987 GENERAL DIVISION ) BETWEEN NEWARK PTY. LTD. (RECEIVERS APPOINTED) (IN LIQUIDATION) Applicant AND: CIVIL & CIVIC PTY. LTD. First Respondent AND: JOSEPH MICHAEL THORPY Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 12 OCTOBER 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: l. Daniel Nutter, architect, of Brisbane, be appointed as Court expert to inquire into and report upon the questions set out in the schedule. The said Daniel Nutter be authorised to into and report upon any facts relevant inquiry and report. The said Daniel Nutter shall go about his and report in such fashion as_ seems appropriate, and shall inform himself matters relevant to his inquiry as he sees example by making telephone inquiries of inquire to his inquiry to him on the fit, for persons who appear to him to have information necessary for the purposes of his report. The said Daniel Nutter shall send his report (one copy) to the Registrar, Federal Court of Australia, M.L.C. Court, 15-23 Adelaide Street. The remuneration of the said Daniel Nutter, as a fee for his report, is fixed at $600 and the question of a proper sum for any attendance before the Court (if subsequently required) is reserved. The parties, namely Newark Pty. Ltd., Civil and Civic Pty. Ltd. and Joseph Michael Thorpy, shall be jointly and severally liable to the said Daniel Nutter to pay the said sum of $600, but the said sum of $600 shall, in the first instance, be paid to the Registrar by Desmond William Knight, the liquidator of Newark Pty. Ltd., such payment to be made forthwith. The said Daniel Nutter may, if he considers 1t impractical to resolve any point relevant to his report, defer resolution of the same and report on the rest. Costs be reserved. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. Schedule The applicant is Newark Pty. Ltd., a tiling company which was represented at relevant times by G.C. Carroll. Its claim relates to internal tiling at Riverside Centre Stage 1, Eagle Street, Brisbane, under a contract made in 1984. The claim is resisted by Civil & Civic Pty. Ltd. and the tile supplier, Mr. J.M. Thorpy. Newark Pty. Ltd. is represented by Messrs. Clarke and Kann (Mr. Russell), Civil and Civil Pty. Ltd. by Messrs. Morris Fletcher and Cross (Mr. A.J. Stephenson), and Mr. J.M. Thorpy by Messrs. Lippiatt and Co. (Miss Budgen). The architects were Harry Seidler and Associates (Mr. Henry Feiner), the site manager was Mr. John Lee, and the general foreman Mr. Peter McVea. The Court desires a report upon the following questions and upon any facts relevant thereto. All the questions have to do with the tiles on the floors of the rooms tiled by Newark Pty. Ltd. at the Riverside Centre Stage 1. 1. What does the expression "nominal 50 mm x 50 mm on 300 mm square sheets" mean within the building trades generally and amongst tilers and suppliers of ceramic tiles in particular? 2. Were the sheets supplied for the laying of the tiles 1n question properly described as being "nominal 50 mm x 50 mm on 300 mm square sheets"? 3. Did Newark Pty. Ltd. have to take any steps which should not have been anticipated e.g. an unusual amount of cutting, in consequence of sheets not being of s1zes which should have been anticipated? 4. Did Newark Pty. Ltd. incur any additional costs (for which he has not been compensated) in laying the tiles, as a result of sheets not being of sizes which should have been anticipated? If so, how much? IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G86 of 1987 GENERAL DIVISION ) BETWEEN: NEWARK PTY. LTD. (RECEIVERS APPOINTED) (IN LIQUIDATION) Applicant AND: CIVIL & CIVIC PTY. LTD. First Respondent AND: JOSEPH MICHAEL THORPY Second Respondent PINCUS J. 12 OCTOBER 1987 REASONS FOR JUDGMENT This is an application for appointment of a Court expert under 0.34. The applicant is a tiling company which 1s in liquidation. It claims a sum of $60,000 plus general damages, principally on the basis that misleading statements were made before it entered into the relevant tiling contract. The pleadings are not as clear as they might be, but the essential complaint made relates to differences between the represented size and the actual size of sheets of tiles to be + supplied by the second respondent for the purposes of doing the work. There have also been heard applications for security for costs made by the respondents, in the course of which I was informed that the applicant's solicitors and the solicitors for one of the respondents estimated their "solicitor and client" costs for the whole litigation, if it runs the full course, would be about $50,000; the other respondent's solicitors estimate their costs to be about $30,000. The sum the applicant's liquidator has available for payment of costs and creditors 1s of the order of $70,000. It appears to me that 1f the litigation proceeds and is unsuccessful, the whole of the $70,000 may be swallowed up in pursuing this. one claim; there are substantial sums due to creditors of the applicant company. Counsel for the respondents resist the application for appointment of a Court expert to look into matters of opinion relevant to the case. It is suggested that courts should be cautious in applying rules of this sort. There does not seem to me, however, to be any special need occasion for caution; an architect (Mr. D. Nutter), who is acceptable to the applicant and one of the respondents, is available to do the report for a fee of $600 - i.e. about one half of one percent of the anticipated costs of the whole case. It is true that, as counsel for the respondent contend, the expert's report may not resolve the matter. The case might still continue. On the other hand, even if that occurs, the report is admissible in evidence (0.34 r.3(3)) and may be expected to assist the Court to resolve the issues. It is of course possible that the report will assist towards settlement of the case, a matter which has apparently been discussed between the parties. Looking at the matter more broadly, the case seems one peculiarly suited to treatment of this sort. The amount in issue 1s very much less than the expected cost of the litigation and a competent person is available to look into the central questions requiring expert resolution, on behalf of the Court. Experience suggests that too often expert witnesses display a degree of partiality, whereas the Court-appointed expert may be expected to be indifferent as to the result of the case. The principal submission of the respondents' counsel in opposition to the order proposed was that, on their instructions, the claim has no substance. If that be so, I fail to understand why the respondents would not expect an independent report to assist them - particularly one from Mr. Nutter whose name was one of those put forward by the first respondent, not by the applicant. The application for appointment of a Court expert under 0.34 will therefore be granted. * certify that this and the 2 preceding pages ara a true copy of the reasons for judgrrent herein of His Honour Mr Justice Pincus a iat Associate Dated /2 October 1987 Counsel for the Applicant: : Mr. A.J.H. Morris Solicitors for the Applicant: Messrs. Clarke and Kann Counsel for the lst Respondent: Solicitors for the lst Respondent: Counsel for the 2nd Respondent: Solicitors for the 2nd Respondent: Date of Hearing: Mr. H. Fraser Messrs. Morris Fletcher Cross Mr. P. Dutney Messrs. Lippiatt & Co. 12 October 1987 &