New South Wales Supreme Court CITATION : Stolfa v Owners Strata Plan 4366 & ors [2010] NSWSC 1524 HEARING DATE(S) : 16 December 2010 JURISDICTION : Equity Division JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 16 December 2010 DECISION : Tender rejected CATCHWORDS : EVIDENCE – Expert evidence – where single expert appointed – whether report of another expert should be admitted – where expert reports tendered by annexure to affidavit of a party CATEGORY : Consequential orders Veronica & Raffaele Stolfa (plaintiffs) PARTIES : Owners Strata Plan 4366 (first defendant) John Hempton & Joanna Kalowski (second defendants) Stephen Hempton (third defendant) FILE NUMBER(S) : SC 2007/256199 COUNSEL : M A Ashhurst SC (plaintiffs) PWJ 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 BRERETON J Thursday, 16 December 2010 2007/256199 Veronic Stolfa and Raffaele Stolfa v The Owners Strata Plan No 4366 & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: Following the substantive judgment given in these proceedings on 26 June 2009, on 27 July 2009 the court made a number of directions to progress the inquiry as to damages, including: (6) Direct that within fourteen days of notification of practical completion [of the works to unit 3], the parties instruct Mr Branch to provide a supplementary report setting out: (a) which of the defects identified in his report of 28 February 08 were caused by the building works undertaken by the second and third defendants; (b) what if any further defects identified in and about Unit 2 since 28 February 08 have been caused by the building work undertaken by the second and third defendants; and (c) a recommended Scope of Works for rectification of the defects so identified; (7) Direct that within 21 days after Mr Branch's supplementary report is given to the parties, the plaintiff serve three itemised quotations for the performance of rectification works in accordance with Mr Branch's recommended Scope of Works. 2 That direction was made with a view to reducing the scope of the issues in dispute on the inquiry and identifying, so far as could informally be done by the use of quotations, a potential range in which the cost of the works might fall. As I recall it, it was at the time indicated that the quotations would not themselves be - at least conclusive - evidence on the topic. 3 The proceedings were then adjourned to 15 March 2010, by which date the plaintiffs had served some quotations. On 15 March, directions were made inter alia pursuant to (NSW) Uniform Civil Procedure Rules, r 31.37, that an expert quantity surveyor be engaged jointly by the plaintiffs and the defendants "on the question of the cost of the performance of rectification works in accordance with Mr Branch's recommended scope of works contained in Mr Branch's supplementary report". Liberty to apply was reserved in the event of any difficulty arising in selecting or instructing this single expert. 4 Pursuant to that direction, Mr Makin, quantity surveyor, was engaged, and he has provided a report. UCPR, r 31.44, provides that except by the leave of the court, a party to proceedings may not adduce evidence of any other expert on any issue arising in the proceedings if a party's single expert has been engaged under this Division in relation to that issue. 5 The plaintiffs seek to read paragraphs 2, 3 and 4 of Mrs Stolfa's affidavit of 13 May 2010, which annexes two of the quotations they obtained. Additionally, they seek to tender the third quotation (the Ferrocon quotation) so obtained. 6 Insofar as the quotations are proffered as annexures to Mrs Stolfa's affidavit, if tendered as evidence of the reasonable cost of carrying out the rectification works, they are hearsay; and if tendered merely as evidence that they were given and obtained, they are no evidence of the reasonable costs of the work concerned and are irrelevant. Insofar as the quotations are tendered in their own right, as reports of the workmen in question, they would be excluded by rule 31.44. 7 I reject paragraphs 2, 3 and 4 of Mrs Stolfa's affidavit. I reject annexures A and B of that affidavit. I also reject the Ferrocon quotation, contained at pages 1 to 2 of the tender bundle. ********** 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.