Robust Builders Pty Ltd v Barai & Anor (No.2) [2023] NSWDC 372

District Court New South Wales

Medium Neutral Citation: Robust Builders Pty Ltd v Barai & Anor (No.2) [2023] NSWDC 372 Hearing dates: 22 August 2023 Date of orders: 22 August 2023 Decision date: 22 August 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 20 Catchwords: CIVIL PROCEDURE – application for builder to call witness to give oral evidence – prior case management directions for evidence to be given by affidavit – discretionary considerations Legislation Cited: Nil Cases Cited: Nil Texts Cited: Nil 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 Publication restriction: Nil

JUDGMENT 1. This proceeding should concern a straightforward contest between a builder suing for invoices which he says are unpaid (and the value of equipment not restored) under a written contract entered into with owners in 2016 and the owners' cross claim for the damages associated with allegedly incomplete and defective works. 2. The proceeding commenced nearly five years ago to the present day. 3. A difficulty affecting the progress of the proceedings is a lack of representation of the builder; although I note that the builder was legally represented when it filed an Amended Statement of Claim in May 2020. 4. Nevertheless, part of the delay was also attributable to the time spent by the parties' preparing their evidence. In that regard, it is patently clear from the Court file that the parties have been directed to serve lay and expert evidence in written form. This appears to have been done at staggered intervals, to reflect the builder's claim and the owner's cross claim. In relation to the builder, express directions were made for it to serve evidence on 30 June 2022 and 2 February 2023, to take only two examples. 5. The proceeding was fixed for hearing in the May 2023 sittings of the Parramatta Civil List, but it was vacated. On 8 May 2023, the matter was fixed for hearing to the August 2023 Civil Sittings List with an estimate of a (single) day plus. 6. When the matter was before me for call-over at the commencement of the Parramatta Civil Sittings List for August 2023, Mr Mehndiratta, director of the plaintiff, and who was only just recently supplied an affidavit proving his authority to act for the builder, verbally intimated that he would like to call as a witness for the builder, Ms Sanya Devi, who he says was an employee of the builder and who dealt with the owners. (In affidavits prepared by the owners, she was identified as the site supervisor). 7. Mr Mehndiratta prepared an affidavit setting out the reasons for why he now wanted to call Ms Devi. The reasons that appear from that affidavit may be summarised as follows: 1. she can give relevant evidence; 2. she could not give evidence earlier because of the ill health of her mother and her occasional need to be overseas; 3. the second defendant was "added in" late and the builder did not object. 1. The owners objected to the application.