District Court New South Wales Medium Neutral Citation: Robust Builders Pty Ltd v Barai & Anor (No.5) [2023] NSWDC 375 Hearing dates: 7 September 2023 Date of orders: 7 September 2023 Decision date: 07 September 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 29 Catchwords: CIVIL PROCEDURE – builder's application to reopen evidence during closing submissions (in reply) – discretionary considerations Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-58 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 REASONS FOR JUDGMENT Background 1. This is day 12 of the hearing of this proceeding, which commenced in August 2018 and relates to the performance of a construction contract between 2017 and July 2018. The proceeding is at the stage where the parties are in closing submissions. The structure for the closing submissions I have directed is that: 1. The builder od to make submissions in chief about issues associated with the builder's claim; 2. The owners are to make submissions in response to issues associated with the builder's claim and make submissions in chief on the Owners' claim; 3. The builder is to make submissions in reply on the builder's claim and submissions in response on the Owners' claim; and 4. The owner is to make submissions in reply on the owners' claim. 1. More specifically, the proceeding is at the stage of point (c). 2. Mr Mehndiratta, the plaintiff's director, who has been carrying on the proceeding for the builder in a practical way since November 2020, has applied (for a third time since the closing addresses commenced yesterday) to reopen the builder's case again for the purpose of tendering additional documents. 3. Mr Lambley, the owners' solicitor advocate, opposes the application. The documents for proposed tender 1. The documents that the builder wishes to tender, if leave was granted to him, are: 1. An email from Mr Barai to Mr Mehndiratta on 27 July 2017 (MFI 63) 2. Emails exchanged between Mr Barai and Mr Mehndiratta on 13 June 2018 (MFI 64); 3. Emails exchanged between Mr Mehndiratta and Mr Barai on 21 February 2018 (MFI 65); 4. Emails exchanged between Mr Mehndiratta and Mr Barai on 20 February 2018 (MFI 66). 5. Two emails sent from the first defendant (Mr Barai) to Mr Mehndiratta dated 22 November 2016 (MFI 67 & 68). 6. Emails exchanged from Mr Barai and Ms Sanya Devi in the period from 22 November 2016 to 1 December 2016 (MFI 69); 7. An email from Mr Barai to Mr Mehndiratta on 5 December 2016 (MFI 70). Some context 1. At a relatively early stage of the hearing, I rejected applications by Mr Mehndiratta to (a) call Ms Sanya Devi to give oral evidence for the builder (22 August 2023); and (b) to call lay and expert evidence in reply (24 August 2023). 2. The reasons for those decisions will, in due course, be published on Caselaw. But without derogating from those reasons, it suffices to emphasise the circumstances that for the five years (plus) of this proceeding, case management directions had been made by which the parties were to adduce evidence by affidavit. In that regard, Mr Mehndiratta prepared an affidavit (whilst legally represented); and the two owners prepared affidavits in response; in addition to the report of a building expert. The owners' evidence was served on or about 11 November 2022. 3. Other contextual circumstances for the present applications are as follows: 1. although I rejected the builder's application to call Sanya Devi to give oral evidence, I noted that this did not preclude the builder from tendering business records she had prepared; and 2. although I rejected his application to call lay and expert evidence in reply, this did not mean that Mr Mehndiratta was deprived of the opportunity to tender business records that he might cross-examine the owners upon. As the number of exhibits indicate, he has availed himself of that opportunity many times. 1. A prominent factual issue in this case is when a construction contract was entered into. Different versions were propounded: the owners contended that a contract was entered into on 24 September 2016. The builder contended that a contract was entered into on 23 December 2016. It is common ground, however, that the contract price was $510,000. There is an issue whether that price was inclusive of any subsequent variations approved (on the owners' case) after 30 November 2016. 2. In his affidavit (20 March 2020) and other narrative statements (Exhibits A and B, noting that the latter exhibit post-dated the service of the owners' affidavits from November 2022), Mr Menhdiratta supplied no correspondence or details as to the dealings between the parties between 24 September 2016 and 23 December 2016. By contrast, both the owners addressed the dealings between the parties from September 2016 in some considerable detail in their respective affidavits. 3. Although he annexed other emails to the affidavit he read, Mr Mehndiratta did not attach the emails he now wishes to tender to that affidavit. Nor did he so in Exhibit B which, as I have indicated, was a narrative statement post-dating service of the owners' affidavits served in November 2022. 4. During the course of the evidence at the hearing, Mr Mehndiratta effectively put to at least one of the owners, the second defendant, Ms Mahjabeen, that a reason for why the contract was entered into on 23 December 2016 was that, even after a written contract was (as Mr Mehndiratta admitted) entered into on 24 September 2016, she had made many further requests of him to alter inclusions. It is not so clear to me, however, that he had put the same proposition to Mr Barai. 5. In the course of closing submissions (stage (b) above), Mr Lambley submitted that the Court would reject the builder's submission because there was an absence of admissible or detailed dealings between Mr Mehndiratta and the owners, the Court should reject Mr Mehndiratta's case that a contract was entered into on 23 December 2016. 6. In the course of his closing submissions in reply to the issues associated with the builder's case (stage (c), above), Mr Mehndiratta sought to rebut this, by contending that there were emails. I asked him, during the course of argument, what was the evidence that he relied upon to sustain his argument that requests for variations were made in the discrete period between 20 November 2016 and 23 December 2016.It was this question which has prompted the current application. 7. By this application, he wishes to reopen the builder's case to allow him to tender the emails I have identified. Consideration 1. I indicated in Court that I was not prepared to permit Mr Mehndiratta to re-open his case simply to tender the documents marked as MFI 63 – MFI 66. This is because none of them were created in the discrete period that I inquire of. 2. That leaves the other four documents in question, which were created in the period from 20 November 2016 to 23 December 2016. 3. The first two documents, being emails of 22 November 2016 (MFI 67 & 68), can be dealt with together. The substance involved Mr Barai asking Mr Mehndiratta to utilise the 'tender' of a proposed earlier builder (Kurmond) to follow in the builder's tender. 4. The emails exchanged between 22 November 2016 and 1 December 2016 (MFI 69) between Mr Barai and Sanya Devi commenced (on 27 November) with the latter emailing through a list of variations agreed on 20 November 2016 and inviting the owner to "email back wish you amend anything else". At 3:09pm on 30 November Ms Devi invited Mr Barai to send a list of amendments.On 1 December 2016 (10:07pm) Mr Barai responded to this and made multiple suggestions. 5. On 5 December 2016 at 10:44pm, Mr Barai emailed Mr Mehndiratta requesting a progress payment list (MFI 70). 6. The parties made very brief submissions on the application. 7. In my view the application to re-open to permit the tender of these additional documents should be refused. 8. As to the substantive effect of the application, although the additional documents arguably show that the owners had second thoughts about inclusions and other variations that they signed on 20 November 2016, and certainly engaged in further communications with the builder on that subject, this does not materially advance the Builder's case that a contract was entered into on 23 December 2016. There was nothing to show, for example, that any amended version of the 'Post-Contractual Variations', a document that formed part of the composite Exhibit 1 came into existence after 20 November 2016, which would indicate why the parties amended a contract from 24 September 2016 or entered into a new contract on 23 December 2016. Declining the application will not result in material substantial injustice to the Builder. 9. As to the procedural circumstances, they markedly tell against the application. Although I accept that Mr Mehndiratta has been under some strain carrying on the hearing for the builder, during the hearing phase, the fact remains, as I alluded to in earlier interlocutory rulings, that the issue of whether a contract was entered into on 23 December 2016 or some earlier date, has been a live issue ever since the proceeding began in August 2018. The opportunity was given to the Builder to put forward in his affidavit (and indeed in Exhibit B) all the material, including the annexure of relevant business records, to prove the builder's propounded date of the contract. He not only did not do so, but did not do so at least at a time (in his affidavit of 30 March 2020) when he was legally represented. 10. Indeed, more generally, there has been no explanation for why, since November 2022, when the owners' evidence was served, Mr Mehndiratta could not have prepared himself before this hearing sufficiently to know of the documents he might wish to tender in his own case, and to cross-examine the owners upon. 11. Further, it would not suffice simply to tender the documents without affording the owners the opportunity to say something about them. Theoretically, Mr Barai (whose name is on the proposed new documents) might be recalled for cross-examination on them. But that would not be fair to him, without giving him the opportunity to put on affidavit evidence to meet the documents – it could not be expected that any further cross-examination would generate the entitlement in Mr Lambley to re-examination as that would also be unfair to Ms Mahjabeen in circumstances where, for reasons of inadvertence, Mr Mehndiratta had passed up the opportunity he first had to cross-examine her on these documents even though he had challenged her that there were communications between herself and the builder after the contract was entered on 24 September 2016 as she (and her husband) had said it was. 12. To facilitate the provision of further affidavits, followed, of course, by further cross-examination would necessitate adjournment of what is now a 12 day case. On 5 September 2023, in delivering reasons for another interlocutory ruling, I emphasised, at greater length, the types of considerations pertaining to ss 56 – 58 inclusive of the Civil Procedure Act 2005 (NSW) and how they militated against the particular applications made. Much of what I said in those reasons also apply here; and particularly what I said about the inefficiencies concerning judicial and administrative resources that have been devoted to this hearing, and indeed the proceeding generally. That is not to overlook the difficult circumstance that Mr Mehndiratta labours under at the hearing. But it is also pertinent to point out that he has laboured under that disadvantage since November 2020 and has had ample time to prepare the Builder's case. 13. I also do not overlook the strain upon the owners in having to revisit their evidence, and being exposed to further cross-examination as well should this application succeed. 14. For reasons I have articulated, I am not persuaded that it is consistent with the dictates of justice to permit Mr Mehndiratta leave to re-open his case for the purpose of the tender of these documents. ********** Amendments 15 September 2023 - Catchwords - changed "disadvantage considerations" to "discretionary considerations". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023