An interlocutory dispute has arisen in these proceedings which have had a complex and chequered history. The homeowner plaintiff's cause of action concerns a claim for damages against the defendant builder in respect of alleged defective building works under a home building contract, where two builders have been involved in the works in question.
Initially, the issues for trial in the proceedings were determined by her Honour Judge Olsson SC on 16 March 2021, in an unreported decision by which the defendant obtained a verdict in his favour.
The plaintiff appealed that decision and achieved partial success in her appeal. On 16 October 2021, the Court of Appeal set aside the orders made at first instance and remitted the matter to this Court for a new trial for the determination of limited issues: Lichaa v Boutros [2021] NSWCA 322.
On 10 November 2022, when the matter came before his Honour Judge Robison, an order was made pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 20.14 referring the matter to a Referee for the determination of those residual issues.
That reference remains unconcluded because on 14 March 2023 the Referee made indicative orders whereby it was made clear to the parties that although he would have regard to the contents of some photographic evidence annexed to affidavit evidence relied upon by the plaintiff dated 27 February 2023, without a facilitative contrary order from the Court, he would not permit reliance on other parts of that affidavit, or another affidavit relied upon by the plaintiff from Aneet Bhalla dated 27 February 2023.
Essentially, the present interlocutory dispute arises because the parties are at issue as to the meaning of the orders made by the Court of Appeal. Materially, those orders were as follows:
"1. Appeal allowed in part as to ground 5.
2. Set aside orders 1 and 4 made by Olsson SC DCJ on 16 March 2021.
3. Remit the proceedings to the District Court for a new trial limited to the following issues:
(i) Are any of items 1-6 and 8-18 identified as defective by Mr Verinder in the Amended Scott Schedule breaches of the Contract (including the implied terms)?
(ii) If the answer to (a) is yes, what is the necessary remedial work reasonably required to bring Ms Lichaa's house into conformity with what was promised by the Contract?
(iii) What are the costs of the work required and identified in (b)? Direct that insofar as the work includes demolition of the first floor in its entirety, Mr Verinder's costing should be used, but updated to reflect any increase or diminution in the costs identified by reason of the passage of time."
Lichaa v Boutros [2023] NSWDC 183 | Case summary | Zoe
Those orders raise questions as to what course the remitter should take, and as to what evidence was permissible in the reference.
The plaintiff maintains, correctly in my view, that the new trial which has been ordered is not a continuation of the old trial, the consequence being that it remains open to a Judge or a Referee coming to the matter afresh to make findings of fact relevant to the determination of the residual issues in dispute.
The defendant maintains, also correctly, that the new trial must be limited to the remaining matters in dispute as identified by the Court of Appeal in accordance with the scheme identified at paragraph [6] above.
Whilst there is no room for doubt that the plaintiff is bound by those limiting orders, those orders make no mention of limits on the evidence to be adduced at the new trial.
The Referee's indicative views which had the effect of limiting the evidence, as identified at paragraph [5] above, led to a notice of motion being filed by the plaintiff on 17 March 2023, as amended on 31 May 2023, by which the plaintiff seeks orders as follows:
"1. That the plaintiff have leave to rely upon the affidavits of Joanne Lichaa and Aneet Kaur Bhalla made on 27 February 2023 at the reference …
…
6. That, insofar as leave is required, that the plaintiff have leave to issue a subpoena to Edward Farah to give evidence to the Reference."
The parties prepared a Court Book containing the affidavit evidence sought to be relied upon. For the purpose of the present application the plaintiff relied upon the following affidavit evidence which I have read:
1. Affidavit of Aneet Kaur Bhalla, 26 July 2022;
2. Affidavit of Joanne Lichaa, 27 February 2023;
3. Affidavit of Aneet Kaur Bhalla, 27 February 2023;
4. Affidavit of Stephanie Hajje, 15 March 2023.
The deponents of those affidavits were not cross-examined. In general terms it is sufficient to say that the above evidence contains relevant material requiring evaluation as to its weight for determining residual matters in dispute.
On 31 May 2023, when the motion came on for hearing before me, counsel for the plaintiff did not have written submissions. This was in circumstances where he had only come into the matter on relatively short notice.
After some argument, it was agreed that the plaintiff's written submissions would be forwarded by 1 June 2023, in advance of a further hearing that was scheduled for Tuesday 6 June 2023. In addition to the defendant's written submissions already presented, the defendant was given leave to forward written submissions in reply by 2 June 2023. Further oral argument on those submissions was initially scheduled to take place on 6 June 2023, however the parties subsequently agreed that this decision could be made on the papers on the basis of the submissions that had been provided.
[2]
Consideration
The residual matters at issue in the proceedings must be determined by the exercise of a discretion in accordance with the overriding principle of facilitating a just, quick and cheap finalisation of the proceedings in accordance with the dictates of justice: s 56 and s 58 of the Civil Procedure Act 2005 (NSW).
Central to the exercise of that discretion is the conclusion that although there is inevitable presumptive prejudice to the opposing party with regard to most steps taken in contested litigation, in this case, in my view, no material or significant prejudice would arise if the orders sought by the plaintiff were to be granted.
I come to this view because the finalisation of the litigation is still a long way off, and a critical lacuna in the evidence has been identified in the course of the reference. This is in circumstances where that problem may readily be addressed by the evidentiary course proposed by the plaintiff, where costs would be determined by the outcome in the usual manner.
If the identified evidence sought to be relied upon by the plaintiff were to be excluded this would very likely result in further protracted arguments over whether the Referee's ultimate report should be adopted because in such circumstances the real issues in dispute would not have been adequately or fairly litigated. That course, if followed, would most likely compound the delays and the costs that have been already incurred whilst the appeal from the orders made on 16 March 2021 was pending.
Because of the intervening appeal and the need for a new trial on the identified issues, the circumstances are very different to those where a party seeks to split the case in mid-stream.
Absent a pressing hearing date, and absent any litigation misconduct by the party seeking leave, in my view, the dictates of justice require that there be a level field for the remaining contest between the parties, where the parties should not be prevented from relying upon relevant evidence to seek to make good their respective arguments.
A refusal to follow such a course would very likely lead to a further appeal, further delays, and considerable avoidable costs. Such circumstances would be contrary to the spirit and the requirement of s 56 of the Civil Procedure Act.
The defendant has made the fair concession that the parties are at liberty to place new evidence before the Court on the remitter. The defendant also conceded that the Court ultimately retains an unfettered discretion as to whether or not to receive such new evidence: Defendant's written submissions, 2 June 2023, para 3. In such circumstances the decisions in other cases where similar points were considered are of limited guidance as each case must be considered on its intrinsic facts.
The Referee's preliminary or indicative view of the evidence has raised the questions for decision in this application. Of significance, is the fact that the Referee intends to rely upon his interpretation of photographs that accompany the additional affidavit evidence the plaintiff seeks to rely upon, but where he proposes not to consider the entirety of the contents of the affidavits themselves.
In my view, that course is fraught with difficulty because there are well understood cautions to be observed in the interpretation of photographs when making factual determinations: Blacktown City Council v Hocking [2008] NSWCA 144, at [7]-[10], [167]-[170]; Angel v Hawkesbury Council [2008] NSWCA 130, at [69]-[72]; Warren v Gittoes [2009] NSWCA 24, at [2]-[3]; Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85, at [8], [20]-[29]; Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326, at [66]; Goode v Angland [2017] NSWCA 311, at [89]-[96].
Plainly, the affidavit evidence provides the factual context for the photographs in question. As such, in general terms, the affidavit evidence comprises a relevant framework for determining the residual matters in dispute where points have arisen which require clarification.
In my view, no material or significant prejudice arises from the circumstances. Any prejudice that does arise can be met with an appropriate order for costs. Therefore, fairness and the dictates of justice require that the plaintiff be given the opportunity to present the evidence upon which she seeks to rely for the determination of the residual issues.
[3]
Disposition
The plaintiff should have the orders as sought by her amended notice of motion together with a consequential order for costs.
[4]
Orders
I make the following orders:
1. The plaintiff has leave to rely upon the affidavits of Joanne Lichaa and Aneet Kaur Bhalla made on 27 February 2023 at the reference;
2. The plaintiff has leave to issue a subpoena to Edward Farah to give evidence to the reference;
3. The defendant is to pay the plaintiff's costs of her notice of motion filed on 17 March 2023 as amended on 31 May 2023;
4. Liberty to apply on 7 days' notice if further or other orders are required.
[5]
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Decision last updated: 06 June 2023