"It was put that, in accordance with JL Holdings , the Court should grant an amendment, unless prejudice was caused to the other side that could not be met by an adjournment and costs, and that any prejudice in this case could have been so met. However, in my opinion, where an amendment would require vacation of a hearing date which was set to take place within a few days, generally there is prejudice through prolongation of the litigation that is not entirely met by costs, and the imposition of that prejudice on the other party needs to be justified by the strength of the case made for the indulgence by the party applying for it. I do not think this was made out in this case, for the reasons I have given, especially in circumstances where no explanation was given for not complying with the terms of the previous indulgence granted."
27 Tribunal Member Durie then refused the application for an adjournment. That decision was open to the Tribunal member. At this stage, there was no denial of procedural fairness.
28 The plaintiff's solicitor then made a further application for an adjournment on the basis of the non-availability of another expert, Mr Kavanagh who had completed the "Applicant's part of the Scott Schedule." Mr Dlakic denied that he said to the Tribunal Member that "Late the week before…advised…(me)…that he was not available for the hearing." Mr Dlakic also denied that he informed the Tribunal Member that Mr Kavanagh had advised him so the week before. In fact, Mr Dlakic says that he informed the Tribunal Member, that Mr Kavanagh had advised him on 11 July 2007 that he (Mr Kavanagh) was "on a job from 7 am to 7 pm and could not attend." It follows that if Mr Kavanagh had only advised Mr Dlakic on 11July 2007 (the day before the hearing) that he was not able to attend the hearing on the following day, there was not sufficient time to enable him to: "…still have sought the issue of a summons to attend with shortening of time." It may have been possible with the issue of the summons to have secured the attendance of Mr Kavanagh on the second day of the hearing.
29 The Tribunal Member then recorded that Mr Davie opposed this further application on the basis that this expert had not provided a report and that simply completion of the Scott Schedule did not amount to provision of a statement or report, and that there had been no compliance of Makita v Sprowles [2001] NSWSC 305.
30 The Tribunal Member refused this application for adjournment and stated that these matters should have been included in the original application. In relation to the further adjournment application, the Tribunal Member stated that while Mr Dlakic had properly notified the witness promptly of the hearing, and had been let down by the witness at a late stage he still could have sought the issue of a summons to attend with shortening of time and that Mr Dlakic's statement that he had expected the matter to be adjourned because of Mr Walker's illness was not sufficient. The Tribunal Member stated that the Makita v Sprowles point was well founded and strong in that there was no evidence from the witness showing what facts he had found, what assumptions he had made, nor how he had reached his conclusions, let alone his qualifications and awareness of the Chairperson's direction concerning expert witnesses.
31 The Tribunal Member referred to the decision of Duncan v Cliftonville Estates Pty Limited [2001] NSWSC 968; (2001) 10 BPR 19,127; (2002) NSWConvR 56-006 where Young J at [2] stated:
"While dealing with this preliminary matter I should make the point that when the court makes directions for the filing of affidavits before a certain time, it means what it says, even in consent orders. Ordinarily, if material is not provided within the time limited by order, the court just does not consider it. There are occasions when the material can be received by consent, or where it would be appropriate to grant an adjournment with orders as to indemnity costs for the defaulter, but in many cases the rights and interests of the parties are only able to be dealt with by dealing with the matter at the trial in the light of the evidence which has been filed in accordance with the directions."
32 Mr Saad's solicitor withdrew. The Tribunal Member then determined the matter and awarded costs to Mr Kassis and fixed the sum at $25,322.62 which was ordered to be payable immediately.
33 The Scott Schedule is a specialised document used in building disputes. I accept that Mr Kavanagh, the author of the schedule, did not set out his qualifications in that document other than to say that he is a senior building consultant. He had reproduced the expert's declaration at the conclusion of the document but it had not been signed. In relation to methodology used Mr Kavanagh stated "With regard to the estimate of loss in this schedule, please note that costs are based on the experience of the author, estimates provided by experienced remedial Building Contractors together with reference to labour charge out rates shown for Tradesmen engaged in NSW as set out in the Cordell's Cost Guide published March 2004". Each item in dispute is set out and he has made detailed comments beside them. He has shown how he arrived at the reasonable costs of rectification in relation to each item.
34 Had Mr Kavanagh been available to give evidence, he could have produced his CV setting out his qualifications and he could have adopted the experts code of conduct. It seems that the Tribunal Member was under the misapprehension as to the actual date the solicitor was notified of Mr Kavanagh's intended non-appearance at the Tribunal. I accept that the solicitor only found out the night before the hearing was scheduled to commence. Hence, the plaintiff's solicitor would have been unable to secure Mr Kavanagh's attendance. He did not have enough time to issue a summons to compel Mr Kavanagh to be present at the hearing. I accept that the Tribunal had set aside two days to hear this matter but the prejudice to Mr Kassis could have in the circumstances been cured by costs. While this Court is reluctant to interfere with discretionary orders of the Tribunal, this is one case where in my view the discretion miscarried and as a result Mr Saad was denied of procedural fairness.
35 The appeal is upheld. The decision of Senior Tribunal Member Durie dated 12 July 2007 is set aside. The matter is remitted to the Tribunal to be determined according to law.
36 Costs are discretionary. Costs normally follow the event. The defendant is to pay the plaintiff's costs of the appeal. However, the plaintiff should pay the defendant's costs thrown away in the Tribunal on 12 and 13 July 2007. The defendant is to have a certificate under the Suitors' Fund Act if applicable.