Strata Plan 99960 v SPS Building Contractors Pty Ltd (No 2) [2023] NSWSC 1064

Supreme Court New South Wales

Medium Neutral Citation: Strata Plan 99960 v SPS Building Contractors Pty Ltd (No 2) [2023] NSWSC 1064 Hearing dates: 1 September 2023 Decision date: 06 September 2023 Jurisdiction: Equity - Technology and Construction List Before: Ball J Decision: (1) Order 2 made on 16 March 2023 be varied such that it reads: "The Defendant may not rely on evidence in chief in response to the Plaintiffs' claim served after 12 May 2023 without leave of the Court." (2) The Defendant be granted leave to rely upon the following evidence in chief, which was served on the Plaintiff on 26 July 2023: (a) the Supplementary Report of David Wood of Liquid Hydraulics dated 17 July 2023; and (b) part 2 of the Expert Report of George L Zakos of GL Zakos & Associates Pty Ltd dated 25 July 2023. (3) The Defendant be granted leave to rely on the Scott Schedule served on the Plaintiff on 26 July 2023. (4) The notice of motion filed on 11 August 2023 otherwise be dismissed. (5) Each party pay its own costs of the notice of motion. (6) Stand the matter over to 8 September 2023 for directions and for the purpose of fixing a hearing date. Catchwords: CIVIL PROCEDURE — Whether defendant may rely on additional evidence after failing to comply with guillotine orders — Where proceedings have not been set down for hearing — Plaintiff will not suffer any prejudice if the evidence is allowed — Leave granted CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — Where defendant builder seeks to file cross-claim against subcontractors — Where defendant wanted evidence from its own experts before joining cross-defendants — Where defendant has already delayed in serving evidence and joining cross-defendants would cause substantially more delay — Leave refused Legislation Cited: Civil Procedure Act 2005 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Strata Plan 99960 (Plaintiff | Respondent) SPS Building Contractors Pty Ltd (Defendant | Applicant) Representation: Counsel: