Bendigo and Adelaide Bank Ltd v CBRE Pty Ltd (formerly known as CB Richard Ellis Pty Ltd) [2016] FCA 710

FEDERAL COURT OF AUSTRALIA

Bendigo and Adelaide Bank Ltd v CBRE Pty Ltd (formerly known as CB Richard Ellis Pty Ltd) [2016] FCA 710 File number: SAD 192 of 2015

Judge: BESANKO J

Date of judgment: 14 June 2016

Date of hearing: 10 June 2016

Registry: South Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: No Catchwords

Number of paragraphs: 6

Counsel for the Applicant: Mr B Roberts SC

Solicitor for the Applicant: Thomson Geer

Counsel for the Respondent: Mr P Bullock

Solicitor for the Respondent: Kennedys

ORDERS SAD 192 of 2015

BETWEEN: BENDIGO AND ADELAIDE BANK LTD ABN 11 068 049 178 Applicant

AND: CBRE PTY LTD (FORMERLY KNOWN AS CB RICHARD ELLIS PTY LTD) ABN 57 057 373 574 Respondent

JUDGE: BESANKO J DATE OF ORDER: 14 JUNE 2016

THE COURT ORDERS THAT:

1. The respondent's interlocutory application dated 7 June 2016 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J: 1 This is an application dated 7 June 2016 for leave to file and serve an expert's report of a Mr Robert Gordon. The application is brought by the respondent and is supported by an affidavit of its solicitor dated 7 June 2016. The application is opposed by the applicant which relies on two affidavits of its solicitor. 2 Mr Gordon is an expert in property finance and he has already produced two reports in this proceeding. Under orders of the Court made last year, the last date for the filing and serving of experts reports by the respondent was a date in December 2015. I do not think that there is any dispute that Mr Gordon's latest report contains opinions relevant to the issues in the proceeding. However, the trial of the proceeding is due to start next week and is listed for 10 days. The applicant contends that it will not be able to address aspects of Mr Gordon's report before the trial. The details of the prejudice it claims that it will suffer, are set out in Mr Barrett's affidavit sworn on 8 June 2016 and, in particular, paragraphs 20-22. 3 I have read Mr Gordon's latest report carefully. I accept that the orderly progression of this proceeding to trial will be disrupted and the trial may well need to be adjourned or face a delayed start if the respondent is permitted to rely on Mr Gordon's report. At this point, the applicant wishes the trial to proceed and the respondent has not applied for an adjournment of the trial. 4 Initially, the respondent put a submission that Mr Gordon's report fell within an order I made on 18 May 2016, but I do not think that that submission is pressed. It is clearly not correct and I reject it. I also reject the suggestion (if it is pressed) that the nature of Mr Gordon's report was foreshadowed in the letter from the respondent's solicitors dated 9 May 2016. As far as I can see, that statement is directed to the claim for loss of use of monies. I think the respondent's explanation for the late production of Mr Gordon's report is a decision by the respondent's solicitor that he would not ask for a further report until after the respondent's dispute with the applicant about the applicant's discovery had been resolved. I note that there is no evidence as to when the respondent's solicitor made that decision or when (subsequently) Mr Gordon was instructed to prepare his latest report. 5 I think that the respondent could have had Mr Gordon prepare his report a good deal earlier than it did. The respondent had enough of the material Mr Gordon addresses in his latest report to put to him with a request for a report. I think the respondent should have proceeded to obtain a report earlier than it did. Even if the respondent was justified in "holding off" until the discovery dispute was resolved, it should have advised the Court of what was occurring. Had that been done, it is likely the matter would have been brought to a head earlier than it was. 6 I refuse the order sought by the respondent. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.