Karimbla Construction Services (NSW) Pty Ltd v Northern Beaches Council [2021] NSWLEC 84

Land and Environment Court New South Wales

Medium Neutral Citation: Karimbla Construction Services (NSW) Pty Ltd v Northern Beaches Council [2021] NSWLEC 84 Hearing dates: 8 July 2021 Date of orders: 9 July 2021 Decision date: 09 July 2021 Jurisdiction: Class 1 Before: Duggan J Decision: See paragraph 16 Catchwords: PRACTICE AND PROCEDURE – Leave to rely on amended statement of facts and contentions – leave to amend would not cause undue delay – leave granted EVIDENCE – Appointment of single party quantity surveying expert – determination of appropriate expert Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Karimbla Construction Services (NSW) Pty Ltd (Applicant, Respondent on the Notice of Motion) Northern Beaches Council (Respondent, Applicant on the Notice of Motion) Representation: Counsel: A Gadiel, solicitor (Applicant, Respondent on the Notice of Motion) L Waterson (Respondent, Applicant on the Notice of Motion)

Solicitors: King & Wood Mallesons (Applicant, Respondent on the Notice of Motion) Mills Oakley (Respondent, Applicant on the Notice of Motion) File Number(s): 2020/363954 Publication restriction: No

EX TEMPORE Judgment 1. HER HONOUR: By Notice of Motion filed in these proceedings, the Council sought leave to file and rely upon an Amended Statement of Facts and Contentions dated 11 June 2021. During the course of the proceedings and subsequent thereto, it became apparent that the only parts of the amendment that continue to be opposed was that proposed in Part B para 10 and Part B para 16D. 2. The Applicant in the proceedings objects to the Council being granted leave in respect of these two paragraphs relying in part upon the lateness of the application in the context of the past conduct of the Council, the additional cost and time in meeting the contentions if permission was granted to raise them having regard to the provisions of ss 57, 58 and 68 of the Civil Procedure Act 2005 (NSW). 3. In addition, the Applicant contended that quantity surveying expertise would be required and that in the past no indication of such expertise was required and, therefore, extra evidence and extra time would be required for the proceedings to be heard with a risk to the hearing dates. 4. When the Court raised with the Applicant the issue of whether or not a single party quantity surveying expert should be appointed, the Applicant opposed such course on the basis that the expertise of quantity surveyors was in part at least subjective and that the parties should be entitled to bring their own experts. 5. In relation to this matter, I find that it is not unreasonable for the Council to raise even at this late stage the issue as contained in those two paragraphs. The issue proposed to be raised by the Council is responsive to the formulation of the offset quantum of the contribution sought in the Applicant's modification application. 6. It has also only recently come to pass that the Applicant has identified that it does not discern in its bookkeeping records amounts to be attributed to the creek line works as opposed to general works being carried out on the side. Therefore, if it was necessary to determine what were likely actual costs, this would have to be done by way of quantity surveying expertise rather than an interrogation of the Applicant's invoices. 7. The costs and time additional for the raising of these issues are not as I find ones that would warrant the Council not being given leave to raise the issue at this stage. 8. I have determined that it is appropriate in the circumstances of the case that a single party expert be filed dealing with the quantity surveying evidence. Whilst quantity surveying does contain within it some degree of judgment, I do not accept that the expertise is subject in the sense that a party cannot reasonably understand the foundations of the expert opinion that will be expressed by a quantity surveyor. The quantity surveyors generally provide expert advice of a range of costs and it is always open for a party to seek leave at the hearing of the matter to test either the range or the considerations of that expert. 9. Further, as to the hearing dates that have been allocated to this matter, through proper case management and the appropriate discipline of party's representatives, I do not believe that it would be necessary having regard to the contentions raised in this case for further time to be allocated for the hearing. I have anticipated that I will list the matter for case management before the Commissioner so that any further case management directions can be made to ensure that the matter can be completed within time. 10. For those reasons, I consider it appropriate to grant the leave sought in the Notice of Motion to the Council to appoint a single party expert and to make directions in relation to the management of the matter. I gave directions requiring the parties to provide to me the names of two experts each with quantity surveying expertise if they were unable to reach agreement. They have done so. 11. For the Council, two experts, Mr Stephen Bolt of WT Partnership and Mr Michael Gilligan of Rider Levett Bucknall. For the Applicant, Mr George Zakos I assume of George Louis Zakos is his firm or Mr Robert Vasey of Vasey Consulting. 12. I have determined that Mr Zakos is not an appropriate person. Whilst he has a great deal of expertise in the building trade, he is neither a member of the Association of Quantity Surveyors nor does he have specialist expertise by way of a degree in quantity surveying, albeit he does have professional expertise. I consider that he would not be an appropriate person in the circumstances of the case. 13. Mr Gilligan is based in Brisbane and whilst he has sufficient expertise, I do not consider it appropriate that the parties be required to retain an expert that would have to travel to New South Wales particularly in light of the current lockdowns and additional costs that would be incurred by the parties. 14. That then left me with a competition between Mr Bolt and Mr Vasey. I consider that both Mr Bolt and Mr Vasey are well qualified. They are both affiliated with the Australian Institute of Quantity Surveyors and they both have quantity surveying experience. However, from the curriculum vitae of Mr Vasey, I have not been able to ascertain the extent to which he has expertise in giving evidence before a Court. 15. So I have determined that as Mr Bolt through his curriculum vitae has indicated to me that he has extensive experience in appearing before the Court as an expert witness, that in the competition between the two, my preference is that Mr Bolt be appointed as the single parties experts. 16. For those reasons, the Court now makes the following orders: 1. The Council is granted leave to amend its Statement of Facts and Contentions in accordance with the draft Amended Statement of Facts and Contentions identified in Annexure A of the affidavit of Ms Townsend dated 25 June 2021 as amended by the "agreed form of words" for para 16A filed with the Court on 9 July 2021. The Council is to file and serve such Amended Statement of Facts and Contentions by 10am on 12 July 2021; 2. The Applicant is granted leave to file and serve any Amended Statement of Facts and Contentions in Reply by 10am on 14 July 2021; 3. The Court orders the parties to engage jointly Mr Stephen Bolt, quantity surveyor of WT Partnership as the parties single expert to express an opinion as to the determination of the reasonable cost of carrying out the creek line works as identified in para 4 of Part B of the Amended Statement of Facts and Contentions and as approved in construction certificate SY180130OSW02; 4. The parties are to file with my associate an agreed amount for the remuneration of this expert by 4pm on 12 July 2021 at which time the Court will fix the remuneration of the parties' single expert at that agreed sum; 5. The parties' single expert is not to incur fees or disbursements additional to the remuneration agreed by the parties or fixed by the Court without written agreement of both parties or absent such agreement without the leave of the Court; 6. The parties are to agree with the parties' single expert with agreed instructions and an agreed bundle of documents by 4pm on 15 July 2021; 7. The parties' single expert is to file and serve their expert report by 31 July 2021. Without leave of the Court, the parties' single expert is not to provide the parties with a preliminary expert report or preliminary opinion; 8. The parties' single expert is to comply with the requirements of div 2 of pt 31 of the Uniform Civil Procedure Rules and the expert witness code of conduct in sch 7 of the Uniform Civil Procedure Rules 2005 (NSW) including the requirements for expert reports; 9. If the Court has ordered that the parties' single expert address any issue, no expert report addressing the same issue other than the report of the parties' single expert may be relied upon at the hearing without leave; 10. The parties are not to provide the parties' single expert with any expert report brought into existence for the purpose of the proceedings addressing any matter the subject of instructions to the parties' single expert without leave of the Court; and 11. The matter is listed for case management before the presiding Commissioner at 4.15pm on 12 August 2021 to make directions for the conduct of the hearing to ensure as far as is practicable that the matter is completed within the period allocated for the hearing of this matter or such other matters as are determined by the Commissioner as appropriate for the conduct of the hearing and the parties are reserved liberty to apply to me in the event of a failure of agreement as to remuneration on one days' notice and otherwise on three days' notice.