Votraint No. 1019 Pty Ltd v Zauner Construction Pty Ltd [2023] NSWSC 1055

Supreme Court New South Wales

Medium Neutral Citation: Votraint No. 1019 Pty Ltd v Zauner Construction Pty Ltd [2023] NSWSC 1055 Hearing dates: 30 August 2023 Date of orders: 1 September 2023 Decision date: 01 September 2023 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Plaintiff granted leave under UCPR r 31.29(5) to use expert report notwithstanding the fact that author is not available for cross-examination Catchwords: EVIDENCE – expert evidence – expert report on alleged defects in construction of houses – where defects have been rectified – where expert no longer available for cross-examination – whether Court should make advance ruling under s 192A of the Evidence Act 1995 (NSW) – whether Court should grant leave to plaintiff under r 31.29(5) of the Uniform Civil Procedure Rules 2005 (NSW) to tender report Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Votraint No. 1019 Pty Limited (Plaintiff/Applicant) Zauner Construction Pty Limited (Defendant/Respondent) Representation: Counsel: A Cameron (Plaintiff/Applicant) G Campbell (Defendant/Respondent)

Solicitors: HWL Ebsworth Lawyers (Plaintiff/Applicant) Barry Nilsson Lawyers (Defendant/Respondent) File Number(s): 2022/377291

JUDGMENT 1. The plaintiff, Votraint No. 1019 Pty Ltd, was the owner of land in Bowral. I will refer to the plaintiff as "the Owner". 2. By contract made on or about 26 September 2017, the Owner engaged the defendant, Zauner Construction Pty Ltd, to design and construct four houses on the Bowral land. I will refer to the defendant as "the Builder". 3. Shortly after completion of the construction, and approximately three years before these proceedings were commenced, the Owner engaged a building surveyor, Mr Richard Jones, to inspect the completed houses and prepare a detailed defects report. 4. Mr Jones produced a report on 30 October 2019 ("the Report"). 5. The Owner's then solicitors served the Report on the Builder on 14 November 2019. 6. The Owner commenced these proceedings, more than three years later, on 14 December 2022, alleging that the Builder breached the warranties in Pt 2C of the Home Building Act 1989 (NSW). 7. The Builder denies that the works were defective. 8. Most, or all, of the defects were rectified otherwise than by the Builder some time in 2020. 9. Earlier this year, Mr Jones told the Owner's solicitors that he is no longer in a physical or mental state to give evidence in relation to his report. It is now common ground that he is no longer available to be cross-examined on his report. 10. Pursuant to r 31.29(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), if an expert's report is served in accordance with r 31.28 or in accordance with an order of the Court, the report is admissible as evidence of the expert's opinion. If the expert's direct oral evidence of a fact on which the opinion was based would be admissible, the report is also admissible as evidence of that fact, without further evidence, oral or otherwise. 11. Rule 31.29(2) of the UCPR then provides that unless the Court otherwise orders, a party may require the attendance for cross-examination of the expert by whom the report was prepared by notice served on the party by whom the report was served. The time for giving such a notice as set out in r 31.29(3) has not yet arrived. It is expected that such notice will be given by the Builder, and argument before me proceeded on the basis that this was so. 12. Rule 31.29(5) of the UCPR provides that if an expert's attendance for cross-examination is required under r 31.29(2), the report may not be tendered under ss 63, 64 or 69 of the Evidence Act 1995 (NSW) or otherwise used unless the expert attends or is dead, or the Court grants leave to use it. 13. The Owner proposes to tender the report under s 64 of the Evidence Act and, as a result, makes this application under r 31.29(5) of the UCPR for leave to use it without Mr Jones being available for cross-examination. 14. In those circumstances, the Owner seeks an advance ruling under s 192A of the Evidence Act as to the admissibility of the Report in circumstances where the Owner cannot call Mr Jones as a witness. 15. As the Builder submitted: "An early ruling under s 192A of the Evidence Act would assist the parties, and should be made, as the matters that the Expert Report deals with are of central importance to the [Owner's] case, and if the Expert Report is ultimately inadmissible, then the [Owner] will have to find another way to prosecute its claim, and the progress of the trial will be significantly different. For those reasons it is better that a ruling be made now rather than during the final hearing." 1. It is thus common ground that this is an appropriate case for an advance ruling.