Robust Builders Pty Ltd v Barai & Anor (No.4) [2023] NSWDC 374

District Court New South Wales

Medium Neutral Citation: Robust Builders Pty Ltd v Barai & Anor (No.4) [2023] NSWDC 374 Hearing dates: 5 September 2023 Date of orders: 5 September 2023 Decision date: 05 September 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 25 Catchwords: CIVIL PROCEDURE – applications made in day 10 of hearing of building dispute – director carrying on proceeding for builder - builder's application for order enabling access to a building expert (to be appointed by the builder) to inspect property and (impliedly) to report on it – builder's application for Court orders for individuals to attend to be cross-examined by builder – discretionary considerations Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Uniform Civil Procedure Rules 2005 Category: Procedural rulings Parties: Robust Builders Pty Ltd (plaintiff/cross-defendant) Mr P Barai (defendant/cross-claimant 1) Mrs F Mahjabeen (defendant/cross-claimant 2) Representation: Mr D Lambley (solicitor) for the defendants/cross-claimant Mr R Mehndiratta (as director of and for the plaintiff/cross-defendant) File Number(s): 2018/00259451

EX TEMPORE REASONS FOR Judgment

Introduction 1. Today is day 10 of a hearing that commenced on 22 August 2023. The litigation concerns a dispute between a building company (the plaintiff) against the owners (the defendants and cross-claimants) of a property for the demolition of an existing dwelling and construction of a two storey dwelling at Seven Hills (the 'Property') under a contract for residential works entered into in 2016. The builder ceased performing those works in July 2017. 2. In a nutshell, the builder brings a claim for unpaid invoices. The owners partly defend that claim, and bring their own cross-claim for what they say are incomplete works and defective works on the property. 3. A director of the plaintiff, Mr Mehndiratta has carried on this proceeding for the plaintiff. He has done so, in a practical sense, since November 2020, even though he only provided the prescribed affidavit at the outset of the hearing. 4. Literally overnight (at 12:22am), he emailed to the Court five separate notices of motion seeking specific relief. In substance, his applications are: first (MFI 58), for the Court to make an order to enable a building expert he would wish to appoint to inspect the Property; and the second, is for the Court to make orders permitting Mr Mehndiratta "to cross-examine" a range of persons who have not presently given evidence. Those persons are: Hirai Barai (MFI 61), Nick Blaker (MFI 59), Daniel Lambley (MFI 62) and Melanie Holt (MFI 60). In the supporting affidavits attached, respectively, to each of the motions, Mr Mehndiratta asserts that each of the orders is 'crucial for the just determination of the issues in the proceedings' and is 'in the interests of justice'. 5. Mr Lambley, the solicitor appearing for the owners (and one of the aforesaid proposed witnesses that Mr Mehndiratta wants to cross-examine), opposes all of these applications 6. The procedural context is important. It is sufficient to observe that: 1. the plaintiff commenced this proceeding in August 2018. When the plaintiff filed its Statement of Claim and Amended Statement of Claim, it was legally represented. On the first day of the hearing, when I asked him about the plaintiff's absence of legal representation, Mr Mehndiratta responded: "I hired a lawyer around three years ago. He represented me and I don't have money to pay them, so thing is they owe me more than $300,000 and they can afford a lawyer, but I cant (sic) because they have my money. So, right now, I can apply for the pro bono, but it used to be a lawyer representing me when I was running my business. Now I am not running my business, I'm basically in no position to run my business the way things are happening. So, yes, it used to be a lawyer before." These statements were made in a context (T 1-2) where Mr Mehndiratta clearly baulked at the notion that, as a director carrying on the proceeding for the company, he may become liable for some or all of the costs of the proceeding. 1. Procedural directions have been made, primarily, by the Judicial Registrar, that the evidence of the parties is to be given by affidavit. 2. At the hearing, Mr Mehndiratta read his affidavit of 30 March 2020 (also prepared when the plaintiff was legally represented) as well as another (effectively) witness statement of 8 October 2019 (Exhibit A) and evidence in reply (Exhibit B) 3. The defendants read affidavits from the owners, Pankaj Barai (8 November 2022), Fahima Mahjabeen (7 November 2022) and tendered an expert report of a building expert, Mr Paul O'Donnell of the firm called 'Canberra Sydney Inspections' dated 26 October 2022 (Exhibit 4). Mr O'Donnell's report was prepared following a site inspection he conducted of the Property on 15 September 2022. 4. In an earlier interlocutory ruling I gave during the hearing, which I will return to, I determined that contrary to Mr Mehndiratta's assertion that he was not served with this evidence, he was, in fact served with this evidence on or about 11 November 2022. I will return to that interlocutory ruling momentarily. 5. This proceeding has previously been set down, at least twice, for hearings in sittings list for the Parramatta District Court in July 2022 and May 2023. 6. The hearing commenced before me when I was administering the three-week civil sittings of the Parramatta District Court for August 2023. At the call-over early in the first week, the estimate given by the parties (of a day plus) was reaffirmed. The case started on the Tuesday of the second week, which enabled me to hear and determine other matters. Subject to some minor exceptions, all that was left in the list after the first week was the hearing of this matter and another hearing of a personal injury dispute (estimated to run for three days). My expectation was that the Court should be in a position to comfortably complete both hearings. 7. this hearing has not only exceeded the estimate supplied by the parties for a proceeding of this scope. Mr Mehndiratta has spent considerable time cross-examining all the witnesses (lay and expert) called for the owners. Whatever slight difficulties he has with the English language and the form of some of his questions, his cross-examination betokened his intelligence and considerable preparation. Nevertheless, the protracted length has resulted in the vacation of the 3-day personal injury matter and the adjournment of that hearing for the Court's three week Parramatta Civil sittings in November 2023; 8. During the proceeding, and to return to one of the points raised earlier about interlocutory rulings, I have rejected applications by Mr Mehndiratta to (a) allow him to call a witness in his case (Ms Sanya Devi) to give oral evidence; and (b) to prepare evidence in reply to the lay and expert evidence relied upon by the owners. The reasons for those rulings share the common feature that if the applications were to be acceded to, they would inevitably result in the adjournment of this hearing in circumstance that, amongst other things, would result not only in further delay, but also costs which, because of the position of the plaintiff, and the position of its director, Mr Mehndiratta, as represented to the Court, would likely be irrecoverable. 9. in terms of the state of the proceeding, the builder has called its evidence (ie Mr Mehndiratta) to support its claim. The owners have called the defendants and their building expert, Mr O'Donnell. Their evidence is complete and the defendants' case is closed, as is the plaintiff's.