Stolfa v Owners Strata Plan 4366 & Ors (No 2) [2008] NSWSC 531

New South Wales Supreme Court

CITATION : Stolfa v Owners Strata Plan 4366 & Ors (No 2) [2008] NSWSC 531

HEARING DATE(S) : 30 April - 1 May 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 1 May 2008

DECISION : Leave to adduce evidence of second expert refused.

CATCHWORDS : EVIDENCE – expert evidence – application for leave to adduce evidence of a second expert where parties' single expert appointed.

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules, rr 31.17, 31.20, 31.38, 31.44

CATEGORY : Procedural and other rulings

Cosgrove v Pattison [2001] CP Rep 68 CASES CITED : Daniels v Walker [2000] 1 WLR 1382 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Tomko v Tomko [2007] NSWSC 1486

Veronica & Raffaele Stolfa (plaintiffs) PARTIES : Owners Strata Plan 4366 (first defendant) John Hempton & Joanna Kalowski (second defendants) Stephen Hempton & Tonia Tschanz (third defendants)

FILE NUMBER(S) : SC 4087/07

COUNSEL : Mr M A Ashhurst SC w Mr S T O'Brien (plaintiffs) Mr P W J Gray SC w Ms P E Koroknay (second & third defendants)

SOLICITORS : W G McNally Jones Staff (plaintiffs) David Le Page (second & third defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

1 May 2008

4087/07 Veronica & Raffaele Stolfa v Owners Strata Plan 4366 & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: The present proceedings were instituted by summons filed on 17 August 2007 which sought interlocutory and final relief restraining building works by the defendants in the strata title building of which the first defendant is the Owners Corporation, and the plaintiffs, second defendant and third defendant the unitholders. An interim undertaking was given on 27 August, when the proceedings were adjourned to 18 September. Further interlocutory relief was granted on 18 September until 9 October, and the interlocutory issues were resolved by an injunction and undertaking pronounced and given on 9 October 2007 until further order. 2 In anticipation of the interlocutory hearing on 9 October, the defendants obtained a report from Mr Ryan, engineer, dated 7 September 2007, which was attached to his affidavit sworn 5 October 2007, filed and served at or about that time. In the second part of that report appears five paragraphs numbered 1 to 5 under the heading "Stability of Existing Building", which express opinions as to whether the works carried out to that point had maintained the structural integrity of the building and whether the removal of walls and their replacement with steel beams would reduce its structural integrity. Although the (NSW) Uniform Civil Procedure Rules require a party to move for directions in respect of expert evidence at the earliest possible opportunity once it becomes apparent there may be an issue requiring expert evidence, that does not apply in the context of interlocutory proceedings, and the defendants were not obliged to move for directions before obtaining Mr Ryan's report. 3 On 7 December 2007, the Court made a direction for the engagement and instruction of Mr Stephen Branch as a parties' single expert pursuant to r 31.20, and subsequently directions for the settling of a letter of instructions. On 8 February 2008, the Court, pursuant to r 31.38, settled the letter of instructions. The letter as settled included questions as follows: 1. Has the owner of unit 3 demolished load bearing walls in unit 3? 2. Has the proprietor of unit 3 demolished any of the internal 'skins' of the external walls of unit 3 and are these walls load bearing? 3. Has the proprietor of unit 3 carried out any building works which, in your opinion, could have/have had an effect on the structural integrity of unit 2? ... 9. Are the walls in unit 3 from which a skin or skins have been removed structurally sound? 10. Which load bearing walls have been demolished in unit 3, and what steps have been taken to provide the support previously provided by the walls? 11. Will the steel beams which have been installed or are to be installed in unit 3 provide sufficient support to maintain the structural integrity of the building?... 4 Mr Branch's report responding to those questions has been received and is now Exhibit PX05 in the proceedings. As Mr Branch has opined that – although only in one respect – there is an issue about structural integrity, Mr Ryan's opinion is at odds with that of Mr Branch. 5 Rule 31.44 provides that except by leave of the Court, a party to proceedings may not adduce evidence of any other expert on any other issue arising in proceedings if a parties' single expert has been engaged under Division 2 of Part 31 of the Rules, in relation to that issue. That rule has the consequence that, insofar as Mr Ryan addresses issues which Mr Branch was asked to address, his report is not admissible except by leave. 6 Rule 31.17 provides that the main purposes of Division 2 of Part 31, which relates to expert evidence generally, is, first, to ensure the Court has control over the giving of expert evidence; secondly, to restrict expert evidence in proceedings to that which is reasonably required to resolve the proceedings; thirdly, to avoid unnecessary costs associated with parties retaining different experts; fourthly, if it is practicable to do so without compromising the interests of justice, to enable expert evidence to be given on an issue in proceedings by a single expert; and fifthly, if necessary to do so to ensure a fair trial of the proceedings, and to allow for more than one expert but no more than are necessary to give evidence on an issue in the proceedings. 7 In a number of cases in England under equivalent provisions, it has been said that on an application to adduce the evidence of another expert, the existence of an objective basis to question the conclusion arrived at by a joint expert and the existence of significant competing expert opinion, or of bias (actual or apprehended), may be a relevant consideration [Daniels v Walker [2000] 1 WLR 1382; Cosgrove v Pattison [2001] CP Rep 68; see also Tomko v Tomko [2007] NSWSC 1486]. 8 In the present case significant considerations are, first, that the existence of Mr Ryan's report was, so far as I am aware, not adverted to when a decision was made to appoint a joint expert; secondly, that a fundamental purpose of appointing a single expert is to avoid the need for competing expert reports; thirdly, that Mr Ryan's report does not – obviously enough because it was prepared at an earlier point in time – examine, scrutinise or endeavour to expose errors in Mr Branch's report; and fourthly, that while I am not convinced that it would be inadmissible on Makita (Australia) Pty Ltd v Sprowles [[2001] NSWCA 305; (2001) 52 NSWLR 705] considerations, it does not go far beyond merely expressing the author's opinion without extending to the more detailed reasoning that is to be found in Mr Branch's report. 9 Given the fundamental purpose of avoiding the cost of competing expert reports, and the circumstance that, as it stands, the lack of detail in Mr Ryan's report means that it does not expose potential error in Mr Branch's report, I do not consider that it sufficiently manifests the existence of a significant competing expert opinion to warrant its reception, and the consequent defeat of the purpose of avoiding the costs incurred by competing reports. 10 I will therefore reject that part of Mr Ryan's report that appears under the heading "Stability of Existing Building", paragraphs 1 to 5 under that heading. I will similarly reject the same part of Mr Ryan's report in Annexure M to the affidavit of John Bennett Hempton, sworn 22 September 2007. The balance of Mr Ryan's affidavit and report is admitted. **********