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. Consideration 1. On 14 August 2023, when Mr Mehndiratta foreshadowed that he wanted to call Ms Devi, I explained to him that, firstly, Ms Devi would not be permitted to give oral evidence, since that would be contrary to the manner in which witnesses were to give evidence that has prevailed in this proceeding i.e. by affidavit. I explained, further, that it would be necessary for Mr Mehndiratta to serve an affidavit (from Ms Devi) upon the owners so that they might be appraised of her evidence and be in a position to object to the lateness of the affidavit. 2. This course has not occurred. 3. Be that as it may, neither the defendants nor the Court are any the wiser as to what evidence Ms Devi would wish to give. 4. For any procedural direction, the Court must proceed in accordance with the dictates of justice. A mandatory consideration of that concept includes how the procedural direction contemplated would facilitate the just, quick and cheap determination of the real issues in dispute. 5. The explanation for Ms Devi's inability to supply an affidavit, before now at least, is inadequate. It has come, not directly, but only indirectly from Mr Mehndiratta. Ms Devi does not say herself that she has been physically unable to prepare an affidavit, such as being deprived of access to relevant documents. Moreover, in this day and age of a global village and Zoom and other electronic facilities as a means of communication, it is a poor excuse for someone not to put on an affidavit that they are occasionally overseas. If there is some issue about her mental incapacity to prepare an affidavit, that would also require evidence. 6. There is nothing to suggest that Mr Mehndiratta did anything to notify the Court of the current application after being informed by the Court on 4 May 2023, about the confirmed hearing date of 8 May 2023. Mr Lambley, appearing for the owners at this hearing, said from the Bar table that Ms Devi was apparently in attendance at the Court in May 2023 when this matter was then relisted in the August 2023 sitting. Then when the May 2023 hearing was vacated, Mr Mehndiratta has left to the virtual eve of this rescheduled hearing to bring this present application. 7. In my opinion it is just too late for the Court to accede to the application. 8. The Court was informed at this application that Mr Mehndiratta had provided an affidavit on 30 March 2020. As to its content, it attached, amongst other things, a written contract and many invoices. From my very, very brief review of it, given that a copy does not appear to have been kept on the file, no reference is contained in it to Ms Devi. To the extent that the builder proposes calling her on issues associated with the owners' defence or cross claim, I observe that the builder had the opportunity to respond to the evidence of the owners on the issues raised by the cross claim (namely defective or incomplete work) since the owners served their evidence in November 2022, nearly nine months ago. In particular in the affidavits of Ms Barai and Ms Mahajabeen last November, occasional reference is apparently made to Ms Devi, who they identified as the supervisor. Still even notwithstanding the service of that evidence in November 2022, this application was not mooted until the virtual eve of this hearing. 9. I take into account potential prejudice to the builder. In that regard Mr Mehndiratta's affidavit is not, with respect, very illuminating as to what disputed issues she could give evidence about. He did refer in oral argument on this application to some things but they were still at a very high level of generality. It appears to still be the case that Mr Mehndiratta simply does not know what evidence Ms Devi might give on the material issues for the Court's resolution. I have noted already the builder's evidence already served on the owners and filed with the Court that omits reference to Ms Devi. 10. An inevitable consequence of enabling Ms Devi to give evidence (either verbally or in writing) would doubtless be the owners wishing to have the opportunity to respond by way of further evidence. There is no way that all of that could occur within the single day plus that is the estimate for the hearing. That means that another inevitable consequence is that a hearing concerning a construction contract entered into in 2016 and a proceeding commenced virtually five years ago, would have to be adjourned again after vacation from May 2023. If the adjournment was to occur, it would be expected that a term of the adjournment that the builder, as the party whose conduct has caused the adjournment, would have to bear the other party's costs for the adjournment. But the builder's present financial predicament is not known to the Court and Mr Mehndiratta may potentially be exposed to an application for costs against him at a later point. I say nothing about the probability, however, of that course occurring. But from the Bar table early this morning in relation to an earlier interlocutory application I noted that he indicated that he did not have the capacity himself to fund legal representation. So there would be some monetary prejudice to the owners on top of the additional delay. The next sittings list for Parramatta is 13 November 2023. I also note that some issues of liability feature conversations alleged to have occurred as far back and August 2016. It is notorious that as time goes by the reliability of witnesses' recollections fade. 11. If there is any document or piece of correspondence that plainly bears Ms Devi's authorship, it may be that on a case-by-case basis, the document may be admissible, as a business record for the builder. But otherwise Mr Mehndiratta's suggested comparison with the position of the second defendant is inapposite. Ms Fahima Mahjabeen has at all times been a party to the proceeding. She prepared an affidavit in conformity with Court directions in November 2022 in anticipation of a hearing which, at that point (as I understand the position) was scheduled for May 2023, or, at any rate at least several months before the commencement of the scheduled hearing. Self-evidently, Ms Mahjabeen's evidence is in affidavit form and Mr Mehndiratta has had ample opportunity to consider its content. Mr Mehndiratta would seek to deprive the owners of any prior notice of Ms Devi's proposed evidence and effectively would ambush the owners. That is not how civil litigation involving construction disputes in this State fairly proceed. 12. Mr Mehndiratta's application to 'add a witness' to give evidence in Court is refused. ********** Amendments 15 September 2023 - coversheet and judgment content added. 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