Supreme Court New South Wales Medium Neutral Citation: Bannister & Hunter v Transition Resort Holdings [2013] NSWSC 1669 Hearing dates: 04/11/2013, 05/11/2013, 06/11/2013, 07/11/2013 Decision date: 07 November 2013 Jurisdiction: Equity Division - Technology and Construction List Before: McDougall J Decision: Evidence taken on voir dire to be admitted for all purposes. Catchwords: PRACTICE & PROCEDURE - pleadings - whether claim sufficiently particularised - whether sufficient notice of claim provided - where failure to adduce relevant expert evidence - no question of principle Category: Procedural and other rulings Parties: Bannister & Hunter Pty Ltd (Plaintiff/First Cross-Defendant) Transition Resort Holdings Pty Ltd (Defendant/Cross-Claimant) Peter William Barclay (Second Cross-Defendant) Representation: Counsel: MJ Windsor SC / G Gemmell (Plaintiff/First Cross-Defendant) DS Weinberger (Defendant/Cross-Claimant) Solicitors: Indemnity Legal Pty Ltd (Plaintiff) Gadens Lawyers (Defendant/Cross-Claimant) File Number(s): 2010/41432 Judgment - (ex tempore - revised 7 november 2013) see page 302 of the transcript 1HIS HONOUR: One of the issues in this litigation, raised by the cross-claimant, Transition, against the cross-defendant Bannister & Hunter, is the alleged negligent design of the bulk earthworks. I use the term "negligent" to encompass breach of both the alleged contractual duties of care and the corresponding common law duties of care, 2The further amended first cross-claim statement of cross-claim (cross-claim) refers to this issue under the heading "Failure to properly design the bulk earthworks". 3It alleges express and implied terms of the contract and then, in paragraph 30E, alleges breach of those terms. 4The allegations of breach are cast at a level of some generality. The first and second allege simply that Bannister & Hunter did not prepare the engineering design for the bulk earthworks with the degree of skill et cetera normally exercised by a consultant in the relevant circumstances, or by a competent designer. 5The third alleges that Bannister & Hunter "failed to design the bulk earthworks so as to minimise their cost". 6I am going to this detail because there is a question as to whether a conclusion reached by the experts in conclave, and expressed in their joint report, as to the failure to allow for a pavement box out in the bulk earthworks levels, ought be permitted to proceed as a head of complaint in the cross-claim. 7I start by observing that there can be no doubt that the failure to make an allowance for a pavement box out of the fill could properly be described as a failure to design the bulk earthworks so as to minimise their cost. Thus, on the face of things, the particular issue falls within the pleaded case. In saying that, I acknowledge that the allegations of breach are cast at such a level of generality as to do little (if anything) to inform Bannister & Hunter of the case to be met. 8However, particulars were given. Those particulars are marginally more helpful. They state: "A less conservative design could have achieved savings in the amount of fill required in the vicinity of $541,000. Transition refers to and relies on its expert reports to be provided in due course". 9Transition did, indeed, provide expert reports. One of those came from Mr Robert Staniland. In paragraph 5.2.6 of his report prepared in June 2012, Mr Staniland adverted expressly to the pavement box out issue. He noted that the bulk earthworks design nominated the finished level of the centre line of the roads as the same as their final design level. He said that in his opinion this was not usual practice, and that it would cause the need to excavate and trim. He estimated that this meant that about 7,000 cubic metres of fill would have been imported and would need to be excavated. 10In paragraph 7.2.4 of his report, Mr Staniland returned to this topic and said that a saving of the order of $134,000 could have been achieved in respect of it, had the design included boxing out the pavements. 11As I have noted, the particulars refer to the concept of "a less conservative design". That very phrase was used by Mr Staniland in paragraph 7.2.3 of his report. He said that by adjusting the finished grade of the longitudinal road drainage, a saving of some $407,000 could have been achieved. 12As Mr Weinberger of counsel, for Transition, observed, if one adds that sum to the indicated saving of $134,000 for the pavement box out issue, one gets to the total of $541,000 referred to in the particulars. 13In circumstances where the particulars were entirely deficient in specificity, but where Transition made it clear that it would rely on its expert reports in effect to supplement them and fill out the case that it intended to make, it might be thought that this is precisely what happened. In other words, one might have thought that the parties would understand that in effect the particularised case would be revealed through the service of expert reports. 14It cannot be suggested that paragraph 5.2.6 escaped the notice of Bannister & Hunter. First of all, Bannister & Hunter, through its lawyers, instructed its own expert, Mr Garry Mostyn. It may be accepted that Mr Mostyn is a geotechnical engineer and not (as is Mr Staniland) a civil engineer. Nonetheless, Mr Mostyn was given, among other things, Mr Staniland's report. He was specifically referred to paragraph 5.2.6, with the comment that: "Bannister does not concede Mr Staniland's assumption at 5.2.6". 15It is apparent from this that the particular complaint made in 5.2.6 had come to the specific attention of Bannister & Hunter's legal advisers. 16Further, Mr Barclay of Bannister & Hunter swore an affidavit. He dealt, among other things, with Transition's evidence including Mr Staniland's report. At paragraph 131, Mr Barclay said of Mr Staniland's report (to the extent that paragraph 131 was admitted): "The suggestion in [5.2.6] about levels is not accurate." 17It is apparent that Mr Barclay himself, and not just his legal advisers, was aware of the issue. 18Thus, it seems to me, and contrary to the submission put by Mr Windsor SC, who appeared with Mr Gemmell of counsel for Bannister & Hunter, it cannot be said that Bannister & Hunter was unaware of the precise issue raised by Transition in relation to the failure to allow for pavement box out in the finished levels of the bulk earthworks design. 19It follows, because Mr Barclay swore his affidavit as long ago as 27 November 2012, that Bannister & Hunter has had ample time to justify this aspect of its design if it wished to do so, or to obtain expert evidence in support of this aspect of its design. 20In this context, I note that the only "lay" witness called by Bannister & Hunter was Mr Barclay. Mr Barclay is the surveyor and has extensive experience in survey matters and in project management. He is not a civil engineer. One of his partners in Bannister & Hunter is a civil engineer. It was that partner who was responsible for the bulk earthworks design. That partner was not called to give evidence. 21I accept, as Mr Windsor submitted, that the matter did not come to a head until the experts (Mr Mostyn, Mr Staniland, and another geotechnical engineer, Mr Shirley), dealt with the matter in their joint conference. They had no difficulty in agreeing that there was no pavement box out shown in the earthworks drawings. Further, they had no difficulty in agreeing that an allowance should have been made for it "in the fill brought to site". I take that to mean that, if the design had allowed for the pavement box out, some 7,000 or so cubic metres of material would not have been brought to site and, thus, paid for. 22It is correct to say, as Mr Windsor observed, that whenever the pavement box out issue was raised in the course of the hearing, he took objection to it. Thus, it cannot be said that this is one of those cases where the parties were determined to fight the case on issues other than those raised by the pleadings, so that, regardless of the state of the pleadings and the particulars, they should be fixed with the consequences. Were I to conclude that the matter had not been properly pleaded or particularised, so that there were in truth a failure to give adequate notice of this issue, it could not be said that Bannister & Hunter was, nonetheless, estopped from taking the present objection because of the way that it had acquiesced in the conduct of the trial. 23Nonetheless, in my view, adequate notice has been given. I accept, as Mr Windsor submitted, that one does not ordinarily plead and give particulars by reference to reports yet to be served. But that was the course that was taken. The reports were served. It cannot be said that the issue was buried in such a way as to escape notice. On the contrary, the matters to which I have referred show that both Bannister & Hunter itself (through Mr Barclay) and its lawyers were well aware of the issue. 24In those circumstances, I do not think it can be said that Bannister & Hunter has been deprived of the opportunity of putting whatever it can on this issue. The inference from the history as I see it is that, for whatever reason, Bannister & Hunter has chosen to take its stand on the basis that the assumption underlying Mr Mostyn's report was not correct, and thus that this aspect of the claim would fail. It has not chosen otherwise to defend its design either by calling the designer or by calling an expert. 25In the event, the joint view of the three experts shows that the assumption made by Mr Staniland appears to be appropriate. Thus, the particular basis on which Bannister & Hunter appears to have chosen to fight this issue of the dispute has not succeeded. But that does not mean that it is entitled, nonetheless, to have the relevant material excluded. 26I conclude that the evidence taken on the voir dire on this topic ought be admitted on the trial, and that Transition is entitled to rely on the pavement box out issue as one properly raised in its claim for damages pursuant to its cross-claim. ********** 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: 19 November 2013