The Owners - Strata Plan No 89074 v Ceerose Pty Ltd - [2024] NSWSC 1494 - NSWSC 2024 case summary

Supreme Court of NSW|2024-10-28|Before: Rees J

he Heron II) [1969] 1 AC 350 Linklaters Business Services v Sir Robert McAlpine Ltd [2010] EWHC 2931 (TCC) McGlinn v Waltham Contractors Ltd [2007] EWHC 149 Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 North East Equity Pty Ltd v Proud Nominees Pty Ltd (No 2) [2008] FCA 1189 Owners SP 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Owners SP 92450 v JKN Para 1 Pty Ltd [2023] NSWCA 114 Owners Strata Plan 78465 v M D Constructions Pty Ltd [2016] NSWSC 162 Owners Strata Plan 89041 v Galyan Pty Ltd [2019] NSWSC 619 Payzu v Saunders [1919] 2 KB 518 Pollitt v R (1992) 174 CLR 558 R v Preston (Court of Criminal Appeal (NSW), 9 April 1997, unrep) Re HIH Insurance Ltd (in liq) [2015] NSWSC 790 Regional Development Australia Murraylands and Riverland Inc v Smith [2015] SASCFC 160 Renown Corporation Pty Ltd v SEMF Pty Ltd (2022) 110 NSWLR 246 Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority (t/as Seqwater) (No 25) [2020] NSWSC 1544 Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 Sotiros Shipping Inc v Sameiet Solholt (The Solholt) [1983] 1 Lloyd's Rep 605 St Vincent's Hospital (Melbourne) Inc v University of Adelaide [2002] VSC 297 Subramaniam v Public Prosecutor [1956] WLR 965 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 130 TCN Channel 9 v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Telecomputing PCS Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd (1991) 24 NSWLR 513 The Owners of SP 97315 v Icon Co (NSW) [2023] NSWCA 303 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Ors (2004) 219 CLR 165 Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 Wenham v Ella (1972) 127 CLR 454 West Boat Builders Pty Ltd v Cull Holdings Pty Ltd (2000) 16 BCL 21 Woolf v 52 Birriga Road Pty Ltd [2012] NSWSC 921 Xuereb v Viola (1989) 18 NSWLR 453 Texts Cited: Professor JW Carter, Contract Law in Australia (8th ed, 2023, JW Carter Publishing) Julian Bailey, Construction Law: Volume II (1st ed, 2011, Routledge) Richard Manly SC, "The Use of Scott Schedules in Technology, Engineering and Construction Litigation" (2011) 27 Building and Construction Law Journal 151 Ritchie's Uniform Civil Procedure (NSW) Category: Procedural rulings Parties: The Owners - Strata Plan No 89074 (Plaintiff) Ceerose Pty Ltd (First Defendant) Prisand Investments Pty Ltd (Second Defendant) Representation: Counsel: F Hicks SC / W Marshall (Plaintiff) M Ashhurst SC / M Keene (Defendants) Solicitors: Hamilton Locke (Plaintiff) Salim Rutherford Lawyers (Defendants) File Number(s): 2017/262472

JUDGMENT

HER HONOUR: This judgment concerns the adoption of a referee's report. The proceedings concern a claim by the plaintiff (the owner) of a residential building for loss and damage caused by breach of the statutory warranties in s 18B of the Home Building Act 1989 (NSW). The defendants are the builder and developer.
The owner seeks the adoption of two referee's reports - the first report being in respect of liability and the second report in respect of quantum - under r 20.24(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). On the basis of these reports, the owner also seeks judgment in the amount of $1,962,883. The defendants oppose adoption of the reports on multiple grounds which were, essentially, marshalled into four topics: 1. whether the referee should have found that no loss was recoverable as the owner failed to mitigate its loss; 2. whether the referee should have applied Australian Standards in force at the time of the contract or more recent standards; 3. whether the referee should have considered rectification costs not in the Scott Schedule; and 4. minor suggested errors totalling $11,514.
The parties relied on affidavits by their respective solicitors, Hamish Geddes and Su Johnson. A vast amount of documentary material was tendered. In sum, I was provided with three (overlapping, partially cross-referenced) sets of documentary materials totalling some 12,000 pages (25 folders). It took one day of judicial time just to collate and reconcile these materials. In addition, I received four 'rounds' of submissions and notes, which added up to some 200 pages (when properly formatted). It is not possible to set out the swathes of submissions, in particular, by the defendants.
The proceedings appear to have been conducted in the same manner before the referee. Given the quantum of the judgment now sought, these proceedings appear to have been the antithesis of "just, quick and cheap": cf s 56(1), Civil Procedure Act 2005 (NSW). Before turning to the particular points raised by the defendants, it is worth bearing in mind how and why the Court refers matters to a referee in the first place.

Referrals and adoption of referee's report

The Court may make orders for reference to a referee appointed by the Court for inquiry and report on the whole of the proceedings or a question arising in the proceedings: r 20.14(1), UCPR. The discretion to refer matters to a referee "must be exercised in accordance with the dictates of s 56(1) of the CPA, namely, the facilitation of the just, quick and cheap resolution of the real issues in the proceedings": Rodriguez & Sons Pty Limited v Queensland Bulk Water Supply Authority (t/as Seqwater) (No 25) [2020] NSWSC 1544 at [17] (Beech-Jones J). For example, in Cave v Allen Jack and Cottier Pty Ltd [2014] NSWSC 1365, Campbell J considered that the "overriding purpose" would be better advanced by referring the whole of a building defects case to a referee, given the relative speed with which a referee could hear the case, and the relative flexibility and informality of the referee procedure, which may better define the issues, lead to a materially shorter hearing and save all parties significant legal costs: at [17].
As Rogers CJ Comm D explained in Telecomputing PCS Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd (1991) 24 NSWLR 513 at 517, building disputes are a "prime example" of matters sent to referees for inquiry and report, where the question requires technical expertise and where a detailed examination may be required of large numbers of items. His Honour noted that a report from a person expert in the subject should be able to be produced more quickly and at less cost than before the Court, including where "It is simply impossible to make available a judicial officer with the time available to check hundreds, possibly thousands, of disputed invoices, building items, or such like": at 517.
Annexure 2 to Practice Note SC Eq 3, "Supreme Court Equity Division - Commercial List and Technology and Construction List", contains the Usual Order for Reference, including that, subject to paras 4.2 and 4.3 of the usual order, the provisions of r 20.20 of UCPR "shall apply to the conduct of proceedings under the reference": para 4.1. Rule 20.20(2) of the UCPR provides: (emphasis added) (2) Subject to any direction [by the Court] under subrule (1) - (a) the referee may conduct the proceedings under the reference in such manner as the referee thinks fit, and (b) in conducting proceedings under the reference, the referee is not bound by the rules of evidence but may inform himself or herself in relation to any matter in such manner as the referee thinks fit.
This is noteworthy, where many of the defendants' submissions were based on the rules of evidence, with which the referee was not bound.
Further, para 4.3 of the Usual Order for Reference provides that the referee is directed to "consider and implement such manner of conducting proceedings under the reference as will, without undue formality or delay, enable a just determination to be made including, if the referee thinks fit": making inquiries by telephone; inspecting the site or, plant and equipment; and communicating with the experts retained by the parties. That is, the Usual Order for Reference envisages that the referee may further 'streamline' their task in a manner conducive to the just, quick and cheap conclusion of a referral from Commercial List and Technology and Construction List proceedings.
As referees are not officers of the Court, their reports have no legal consequence unless and until they are adopted by the Court: Xuereb v Viola (1989) 18 NSWLR 453 at 465-6 (Cole J). Once the referee's report is to hand, r 20.24(1) of the UCPR provides: If a report is made under rule 20.23, the court may on a matter of fact or law, or both, do any of the following - (a) it may adopt, vary or reject the report in whole or in part, (b) it may require an explanation by way of report from the referee, (c) it may, on any ground, remit for further consideration by the referee the whole or any part of the matter referred for a further report, (d) it may decide any matter on the evidence taken before the referee, with or without additional evidence, and must, in any event, give such judgment or make such order as the court thinks fit.
In Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784, McDougall J distilled into 15 principles the approach to be taken when determining whether to adopt or reject a referee's report: at [7]. As McDougall J later noted in Harris v Morabito Holdings Pty Ltd [2018] NSWSC 912, these 15 points are not to be approached as a checklist, the application of which will provide in all cases an answer to the exercise of the discretion; they provide a general guide as to how the adoption of a referee's report should be approached: at [13]. Of these 15 principles, the following are pertinent to the issues raised by the defendants, from Chocolate Factory at [7]: "… (2) The discretion to adopt, vary or reject the report is to be exercised in a manner consistent with both the object and purpose of the rules and the wider setting in which they take their place. … … (4) In so far as the subject matter of dissatisfaction with a report is a question of law, or the application of legal standards to established facts, a proper exercise of discretion requires the judge to consider and determine that matter afresh. (5) Where a report shows a thorough, analytical and scientific approach to the assessment of the subject matter of the reference, the Court would have a disposition towards acceptance of the report, for to do otherwise would be to negate both the purpose and the facility of referring complex technical issues to independent experts for enquiry and report. (6) If the referee's report reveals some error of principle, absence or excessive jurisdiction, patent misapprehension of the evidence or perversity or manifest unreasonableness in fact finding, that would ordinarily be a reason for rejection. In this context, patent misapprehension of the evidence refers to a lack of understanding of the evidence as distinct from the according to particular aspects of it different weight; and perversity or manifest unreasonableness mean a conclusion that no reasonable tribunal of fact could have reached. The test denoted by these phrases is more stringent than "unsafe and unsatisfactory". (7) Generally, the referee's findings of fact should not be re-agitated in the Court. The Court will not reconsider disputed questions of fact where there is factual material sufficient to entitle the referee to reach the conclusions he or she did, particularly where the disputed questions are in a technical area in which the referee enjoys an appropriate expertise. Thus, the Court will not ordinarily interfere with findings of fact by a referee where the referee has based his or her findings upon a choice between conflicting evidence. (8) The purpose of [the rules] would be frustrated if the Court were required to reconsider disputed questions of fact in circumstances where it is conceded that there was material on which the conclusions could be based. (9) The Court is entitled to consider the futility and cost of re-litigating an issue determined by the referee where the parties have had ample opportunity to place before the referee such evidence and submissions as they desire. (10) Even if it were shown that the Court might have reached a different conclusion in some respect from that of the referee, it would not be (in the absence of any of the matters referred to in sub para (6) above) a proper exercise of the discretion conferred by [the rules] to allow matters agitated before the referee to be re-explored so as to lead to qualification or rejection of the report. … (13) A question as to whether there was evidence on which the referee, without manifest unreasonableness, could have come to the decision to which he or she did come is not raised "by a mere suggestion of factual error such that, if it were made by a trial judge, an appeal judge would correct it". The real question is far more limited: "to the situation where it is seriously and reasonably contended that the referee has reached a decision which no reasonable tribunal of fact could have reached; that is, a decision that any reasonable referee would have known was against the evidence and weight of evidence". …
In Woolf v 52 Birriga Road Pty Ltd [2012] NSWSC 921, Beech-Jones J also observed at [29]: "… the question for the Court is not the legal validity of the referee's report but whether the ultimate interests of justice would be served by its adoption in whole, in part, or its rejection. Thus a conclusion that the report involved a breach of natural justice in some sense, does not necessarily lead to a finding that the report should be rejected in whole or in part, although it is obviously a strong start. There would still need to be considered the overall dictates of justice, including the principles set out in s 56 of the Civil Procedure Act 2005. … A further factor of particular relevance to this case is that the amounts in dispute are relatively modest and there is therefore a consequential risk that further fragmentation and delay will increase the cost of the dispute out of all proportion to the amount being litigated."
These observations have particular resonance in this case, where the proceedings have gone on far too long and the quantum of the amounts with which the defendants take issue are, in some instances, as little as $1,615.
Further, the same features of a proceeding which make it suitable for referral - being a plethora of matters of detail which it is not practical for a judicial officer to consider - make it "simply impossible to make available a judicial officer with the time available" (Telecomputing v Bridge WAC) to check the detail underlying a referee's report, as opposed to considering specific and significant problems carefully identified by circumspect counsel. As a rule of thumb, reproducing the submissions made to the referee on an adoption hearing is of little or no assistance to the Court.

The defects claim

In 2010 and 2012, the developer entered into building contracts with the builder to construct a 16-storey building with 19 apartments, one commercial lot and five levels of basement car parking in Elizabeth Street, Sydney. In 2013, the strata plan was registered. A final occupation certificate was issued in 2014. In 2016, the owner commenced these proceedings in the New South Wales Civil and Administrative Tribunal (NCAT).
The proceedings were transferred to this Court in 2017. The proceedings have been before this Court on 52 occasions. On the first 17 occasions, the proceedings were stood over at the request of the parties to enable settlement discussions to progress (to which I will return at [56], when dealing with mitigation).
The continual adjournment of these proceedings came to an end on 1 August 2019, when Hammerschlag J made directions for the filing of pleadings and evidence. On 30 August 2019, the owner filed a Summons and Technology and Construction List Statement, seeking damages for building defects. (The defects later detailed included, relevantly, inadequate falls to the bathroom and ensuite floors and rectification works performed to a lift shaft.)
In their Technology and Construction List Response, the defendants denied that the existence of defects. Further, the defendants contended that the owner's consent had been sought to undertake works to rectify any defects. The builder had sought the owner's consent to undertake the works set out in Annexure A on a without admissions basis. (Annexure A collated 95 items referred to in the expert reports obtained by the parties to that point, together with the proposed method of rectification.) The owner was said to have failed to mitigate its loss by allowing the builder to undertake these works and not permitting access to the defendants to undertake works. No Reply was filed.
In 2020, the parties gradually served their evidence. Amongst the owner's material was an affidavit of mechanical services engineer, Gary Yedalian, made on 5 March 2020 and an accompanying 225 pages of exhibits, including invoices rendered for his work from 18 October 2018 to 13 November 2019 totalling $165,137.37. Mr Yedalian detailed his initial engagement by the owners in October 2018 to review mechanical services at the building in connection with the issue of the Annual Fire Safety Statement (AFSS). On inspecting the building, he observed a number of issues that required corrective action and prepared two reports in November 2018, recommending repairs. In January 2019, he met with an expert retained by the owner, Paul Jones, "to discuss the mechanical and fire safety issues at the building". In April 2019, Mr Yedalian prepared a quotation to undertake the minimum amount of works required to achieve the AFSS for the building and entered into a contract with the owner to undertake that work. He completed this work in July 2019. Mr Yedalian also undertook further inspections of the building in relation to the installation of access panels in each apartment, investigating sub-ducts for the kitchen exhausts and investigated deficiencies with the carpark exhaust and smoke spill system. He issued quotations to undertake further work and did so. Mr Yedalian detailed further work undertaken for the owner from September to November 2019 and provided inspection reports and notes. He also attended the building in February 2020 with Mr Jones to assist him with his investigations in relation to air conditioning and took photographs of air conditioning units for this purpose.
In March 2021, orders were made for mediation. In July 2021, Hammerschlag J noted that he considered this to be a matter which should be referred to a referee in its entirety "and that the referee should determine whether the plaintiff should serve a Scott Schedule in accordance with UCPR rule 15.2." In October 2021, Stevenson J made an order under r 20.17 of the UCPR, referring the whole of the proceedings to engineer and barrister, Steven Goldstein, for inquiry and report. The Court made the Usual Order for Reference contained in Annexure 2 to Practice Note SC Eq 3, as earlier described.
On 6 April 2022, the defendants served an affidavit by director, Edward Doueihi, who described the defendants' efforts to resolve the owner's complaints through: settlement discussions; joint inspection of experts; an 'in principle' agreement that the builder would remedy agreed defects; and the subsequent unfolding of that agreement, resulting in the prosecution of these proceedings.
On 19 April 2022, the hearing began before the referee and occupied five days on the issue of liability.
In June 2022, the owner served a further affidavit by Mr Yedalian, who provided further details in respect of the work undertaken in each of his invoices, including invoices issued since his first affidavit. His invoices now totalled some $360,000.
In July 2022, Ball J amended the orders for referral so that a report would be provided as to liability by 16 December 2022 and a report as to quantum by 31 March 2023.
In September 2022, the owner served a third affidavit from Mr Yedalian, providing further detail on the costs charged to the owner to rectify defects identified by Mr Jones and linking the amounts charged in Mr Yedalian's invoices to those particular defects. Two days' later, the hearing on liability resumed before the referee for two more days. Mr Doueihi gave evidence and was cross-examined.
On 19 September 2022, during an expert conclave concerning the bathroom falls, the defendants objected to an annexure to the joint report on the basis that the owner's expert sought to introduce new items that were not included in the Scott Schedule. The referee admitted the material but added: "MR GOLDSTEIN: And if does, then - if it does, then my view is those items would be ignored if they're not in the Scott Schedule. Because at the end of the day, it's the Scott Schedule that I'll be working towards."
From October 2022 to January 2023, the parties served various 'rounds' of submissions. On 19 January 2023, the hearing on liability continued for an eighth day, followed by further 'rounds' of written submissions from the parties. On 2 February 2023, the hearing before the referee continued for a ninth day, followed by a further 'rounds' of submissions from the parties. The time for the referee to provide his report on liability was extended by the Court and was ultimately provided on 24 March 2023 in respect of liability (and comprising some 200 pages).
In his liability report, relevantly, the referee considered the owner's claim in respect of an insufficient fall on the tiles in 32 bathrooms. The referee noted that the relevant standard at the time when the building was under construction was AS3740-2004, which required that all surface water drain to floor waste without ponding on the floor. The referee did not accept the defendants' submission that a method for determining whether there was 'ponding', set out in more recent standard AS3740-2021, was relevant to determining whether a defect existed in respect of inadequate falls. The referee noted that the method would be difficult to achieve in practice and was not mandatory. Nor was the more recent standard consistent with the earlier standard in some respects.
The referee noted that the building experts agreed that there were inadequate falls in all of the bathrooms; the defendants' expert agreed that, with a few exceptions, the falls measured in the wet areas either had 0mm of fall or a negative fall, that is, away from the floor waste: liability report at [272]. The experts disagreed, however, on the method of rectification, where the owner's expert considered that the areas needed to be re-tiled and the defendants' expert considered that it was sufficient to grind the stone tiles to achieve the necessary fall. After considering the evidence on this subject, the referee concluded that the owner's proposed method of rectification should be preferred, as the grinding of tiles was not a reasonable or adequate solution: liability report at [283].
In June 2023, Ball J made orders for the parties to prepare evidence on quantum for the referee and extended time for the referee's report on quantum. The owner was also ordered to provide the defendants' experts with access to the building.
On 8 September 2023, the matter was relisted at the request of the defendants, where there was a dispute as to access. The transcript records that the defendants sought access to the bathrooms to see whether the fall in the bathrooms complied with the current Australian Standard. The owner submitted that this issue had already been determined adversely to the defendants in the referee's liability report. The transcript records: "HIS HONOUR: … why isn't what the referee said crystal clear. He set out how this rectification is to occur. … The referee has concluded that in order to meet the contractual requirements this is the scope of work that has to be done. … Ultimately presumably you can make an application to the Court for that part of the report not to be adopted if you are game enough. … In deciding that the defect has to be rectified in this way, the referee has decided that point against your client. That is just the fact of it, isn't it? … I am not prepared to order the access that you seek. The defendants were ordered to pay the plaintiff's costs of the day.
In December 2023, the owner served an unsworn affidavit by the strata manager, Patrick Van Oort, accompanied by an exhibit with various contracts entered into by the owner with contractors and invoices. Where it was apparently then being suggested by the defendants that some of the defects had already been rectified by the owner, Mr Van Oort described the work that had, and had not, been done at that point. Mr Van Oort annexed a contract entered into by the owner to rectify the bathroom and ensuite in one of the apartments, which contract had been performed.
On 11 December 2023, the hearing on quantum began and was held over four days. Mr Yedalian gave evidence and was cross-examined by the defendants' senior counsel and recalled for further cross-examination (twice). On day two, the owner provided a sworn affidavit by Mr Van Oort. There was some 'to and fro' as to whether the owner should be permitted to read the affidavit given its late service. The owner's senior counsel asked to reserve the reading of the affidavit until he had a chance to see whether some of the issues dealt with remained relevant. The defendants' senior counsel suggested that the affidavit was being withdrawn as it demonstrated that the estimate of the owner's quantity surveyor, Bob Macansh, for rectification of bathrooms was double "what they would be in the real world". The owner withdrew the tender. The referee expressed concern as to the relevance of Mr Van Oort's affidavit in any event, absent some assistance from the quantity surveyors.
The transcript records that the referee continued to express concerns as to whether Mr Van Oort's affidavit was of any assistance or relevant in any event. The defendants then sought to tender the contract attached to Mr Van Oort's affidavit, together with an analysis of that contract by the defendants' quantity surveyor, David Madden. According to the transcript, the owner's senior counsel had not seen Mr Madden's analysis of the document. The referee rejected the tender, noting "Frankly, you've got two qualified experts here who have given evidence. They have diverse views. For me, it's just a matter of exploring the differences, and I don't know that I'm going to be assisted in doing that by this document".
After the hearing, the quantity surveyors provided a joint expert report on rectification costs, followed by 'rounds' of submissions on quantum. The Court extended time for the referee's report on quantum, which was ultimately provided on 11 June 2024 (totalling 240 pages). The parties have since filed the motions before the Court as to whether the referee's reports should be adopted in whole or part.

MITIGATION

The defendants' main attack on the referee's reports was in respect of a finding that the owner did not fail to mitigate its loss. An order was sought under r 20.24 of the UCPR that the 64 pages in the liability report which addressed this subject ought be rejected. In short, before the referee the defendants contended that the owner had failed to mitigate its loss by unreasonably refusing access to carry out rectification works. The parties had been negotiating a draft deed, which was said to have given rise to an agreement on 9 October 2018 that the defendants would attend to the work in Annexure A, to be attached to the deed. A year later, on 8 November 2019, the owner declined to allow the defendants to attend the property to rectify the defects. The referee found that owner's refusal to permit access to rectify the defects was reasonable as it had lost confidence in the defendants' ability to perform such works. The defendants submitted that, given rulings made by the referee on the admissibility of hearsay evidence, this finding was not open on the evidence before him. Had the owner acted in a "reasonably prudent" way and allowed the builder to rectify the defects, no loss would have arisen: Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 (per Heydon JA); Owners SP 76674 v Di Blasio Constructions PL [2014] NSWSC 1067 at [28], [44] (per Ball J); Owners Strata Plan 78465 v M D Constructions Pty Ltd [2016] NSWSC 162.
Before considering the defendants' multiple contentions on this subject, it is timely to review the common law principles of mitigation and Di Blasio, the defendants placing much weight on the latter. Of course, in many cases the parties will have made contractual provisions for the rectification of defects, which will prevail over the common law.

Principles

While it is frequently said that the plaintiff is subject to a 'duty' to mitigate, this is apt to mislead; there is no positive duty to mitigate but a 'duty' not to act unreasonably: Professor JW Carter, Contract Law in Australia (8th ed, 2023, JW Carter Publishing) at [35-35]. In short, in assessing loss for breach of contract, "loss which is due to unreasonable or improvident actions of the plaintiff is generally disregarded by application of the rules of mitigation of loss": Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 at [120] (per Edelman, Steward, Gleeson and Beech-Jones JJ).
In the context of commercial contracts, for some time it was popular to cite Scrutton LJ's statement in Payzu v Saunders [1919] 2 KB 518, "In commercial contracts it is generally reasonable to accept an offer from the party in default": at 589. Then Donaldson MR's observation in Sotiros Shipping Inc v Sameiet Solholt (The Solholt) [1983] 1 Lloyd's Rep 605 gained prominence, "A plaintiff is under no duty to mitigate his loss, despite the habitual use by lawyers of the phrase 'duty to mitigate'. He is completely free to act as he judges to be in his best interests": at 680. The requirement of reasonableness must now be added to the latter formulation. As Heydon JA explained in Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 at [77]: "A plaintiff 'cannot be said to have really incurred any loss which might have been avoided by his taking such steps as a reasonably prudent man in his position would have taken to avoid further loss to himself': Driver v War Services Homes Commissioner (1923) 44 ALT 130 at 134 per Irvine CJ (emphasis added). … Subject to the criterion of reasonableness, the plaintiff 'is completely free to act as he judges to be in his best interests': The Soholt [1983] 1 Lloyd's Rep 605 at 608 per Sir John Donaldson MR (emphasis added). "The word 'reasonable' has in law the prima facie meaning of reasonable in regard to those existing circumstances of which the actor, called on to act reasonably, knows or ought to know": In re a Solicitor [1945] KB 368 at 371 per Scott, Lawrence and Morton LJJ; see also Adams v Eta Foods Ltd (1987) 78 ALR 611 at 621 per Gummow J."
Whether there is an obligation to mitigate is a question of law: St Vincent's Hospital (Melbourne) Inc v University of Adelaide [2002] VSC 297 at [36] (Warren J, as the Chief Justice then was). But what is reasonable for a person to do in mitigation of damages is a question of fact in the circumstances of each case: Payzu v Saunders at 589 (per Bankes LJ); British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 at 688-9; Regional Development Australia Murraylands and Riverland Inc v Smith [2015] SASCFC 160 at [139]. Where it is contended that a plaintiff should have taken steps by way of mitigation, the onus of proof is on the defendant: Cessnock City Council v 123 259 932 at [121], citing TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd (1963) 180 CLR 130 at 138 (Kitto, Windeyer and Owen JJ).
In Di Blasio, Ball J summarised these common law principles of mitigation and then observed at [44]: (some citations omitted) "In the case of building contracts, it is also generally accepted that the owner must give the builder a reasonable opportunity to rectify any defects. … the owner is required to give the builder an opportunity to minimise the damages it must pay by rectifying the defects, except where its refusal to give the builder that opportunity is reasonable: see J Bailey, Construction Law, (Vol II, 2011, Informa Law) at [14.109]; Cassidy v Engwirda Construction Co (No 2) [1968] Qd R 159 (reversed on other grounds in Cassidy v Engwirda Construction Co (No 2) [1968] QWN 47 (HC) ; (1968) 42 ALJR 168). That obligation may be an aspect of the duty to mitigate, since it may be less expensive for the builder rather than a third party to rectify the defects, particularly if the builder is still on site. But the obligation is not simply an aspect of the duty to mitigate. The cost to the builder of undertaking the repairs is likely to be less than the amount that a third party would charge the owner for the same work. In that case, the owner is not mitigating its loss, but rather the builder's damages.
The relevant portion of the text cited by his Honour is Julian Bailey, Construction Law: Volume II (1st ed, 2011, Routledge) at 1131, [14.109]: (citations omitted) "Even where a contract does not require the owner, or the contract administrator, to give the contractor the opportunity of correcting a defect for which it is responsible, it may, in the circumstances, be a reasonable step for the owner, in attempting to mitigate its loss, to give the contractor such an opportunity. This is especially so where the alternative is for the owner to engage a new contractor to perform the remedial work, where the new contractor may - rightly - only wish to undertake the remedial work on the basis that it be performed from scratch (and for a substantial cost), rather than attempting to fix up the suspect or shoddy work of the first contractor; whereas if the first contractor were given the opportunity to correct its work the cost would be relatively small. …"
The case cited by his Honour was Cassidy v Engwirda Construction Co (No 2) [1968] Qd R 159, where Hoare J (overturned in part by the Court of Appeal (Cassidy v Engwirda Construction Company (No 2) [1968] Qd R 159) but restored by the High Court (Cassidy v Engwirda Construction Co (No 3) [1968] QWN 47) stated at 166: "One can see that, generally speaking, when a builder is actually working on a job it will ordinarily be cheaper for him to remedy defects rather than to have them remedied by some other contractor. In such a case it is clear that a building owner must generally give the original contractor the opportunity to rectify the defects unless, I should say, there is some good reason to the contrary. … if the circumstances are such that it is not reasonable to require the building owner to give notice to the builder, then he is able to recover his proper cost of restoring the defects even though he has given no notice to the builder."
Returning to Di Blasio, Ball J continued at [45]-[46]: "The question of what is reasonable depends on all the circumstances of the particular case. One relevant factor is what attempts the builder has made to repair the defects in the past and whether, in the light of the builder's conduct, the owner has reasonably lost confidence in the willingness and ability of the builder to do the work: see A Chambers, Hudson's Building and Engineering Contracts, (12th ed, 2010, Sweet & Maxwell) at [4-144]; Eribo v Odinaiya [2010] EWHC 301 (TCC) at [70]. It is for the defendant to prove that the plaintiff has acted unreasonably. It is not for the plaintiff to prove that it acted reasonably …"
Di Blasio was followed in Owners Strata Plan 78465 v M D Constructions Pty Ltd [2016] NSWSC 162 at [27] (Hammerschlag J); Owners Strata Plan 89041 v Galyan Pty Ltd [2019] NSWSC 619 at [20] (Stevenson J) and Hacer Group Pty Ltd v Euro Façade Tech Export Sdn Bhd [2022] VSC 373 at [30] (Stynes J).
The owner submitted that the statements of principle in Di Blasio are not correct and there was no general positive obligation on a party that has suffered loss to allow the wrongdoer to minimise the quantum of damages. I suppose that is one way of reading Di Blasio. But, as Leeming JA noted in Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520, "Just because a passage in reasons for judgment seems apposite if read in isolation does not make it so. Reasons for judgment must always be read in context": at [152], citing Commonwealth of Australia v Bank of New South Wales (1949) 79 CLR 497 at 637-638.
Both sources referred to by Ball J in Di Blasio at [44], being the text and Cassidy v Endwirda Construction, speak of the economic advantages which may adhere to both parties by permitting the builder to remedy defects rather than a new builder. As I read it, Ball J explained in Di Blasio that as a consequence of the owner acting reasonably in mitigation of their loss by permitting the builder to return to site and rectify defects, the effect is that the builder's damages are also thereby decreased. I do not take Ball J to have been asserting a separate duty owed by the plaintiff to the builder, nor expanding common law principles, but summarising the existing law and how it operates in the particular context of building contracts. As Irvine CJ explained in Driver v War Service Homes Commissioner (1923) 44 ALT 103 at 134 (quoted with approval in TCN Channel 9 v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 at 162 (Priestley JA)): "This expression [duty to mitigate damages] … does not mean that he is under any duty in the ordinary sense, towards the party breaking the contract, but that he cannot be said to have really incurred any loss which might have been avoided by his taking such steps as a reasonably prudent man in his position would have taken to avoid further loss to himself …"
Of interest, in Di Blasio and the cases which followed it, none of the plaintiffs were found to have failed to act reasonably in mitigation. (Hacer Group is not particularly relevant, where the plaintiff's claim was undefended.) In Di Blasio, the builder contended that the owner acted unreasonably in not pursuing discussions concerning the scope of works to be undertaken by the builder and not accepting the builder's offer to carry out rectification work for $1. After examining the history of negotiations between the owner and builder, Ball J did not agree. In short, the defects were significant and the builder's initial repairs were inadequate. The owner acted reasonably in retaining an expert, who identified a number of defects and how they should be rectified. The builder never accepted the substance of the expert's report, preferring a "wait and see" approach to the manifestation of defects and then proposing an inadequate solution. His Honour observed, "it seems that the parties remained far apart. … The Owners Corporation could reasonably have concluded that an agreement was never going to be reached with the Builder … and that further discussion with the Builder was pointless": Di Blasio at [53]. The only option for the Owners Corporation was to commence proceedings and, by the time the builder's offer to remedy the defects for $1 was made, it was not unreasonable for the Owners Corporation not to accept the offer as "the Owners Corporation could reasonably have taken the view that it no longer had confidence in the Builder and that it wanted someone else to undertake the rectification work": Di Blasio at [54].
In M D Constructions, Hammerschlag J concluded that the builder "has fallen well short" of establishing that the plaintiff acted unreasonably, where the builder's original work was systemically defective, the builder's initial efforts to rectify defects were ineffective and deficient, and the builder's conduct in dealing with the owners was "tantamount to a refusal to repair or take responsibility for repairing the existing defects": at [33], [37]. The builder was difficult to deal with and proposed repairs which were as defective as the original building work. His Honour concluded that "there was no realistic prospect of [the builder] agreeing to carry out an agreed scope of works that recognised the extent of the defects in the work": at [47].
In Galyan, Stevenson J concluded that the builder had not shown that the owners corporation acted unreasonably in not allowing the builder to return to site where the builder did not propose a workable scope of works and adopted an unnecessarily aggressive approach (with the builder describing some of the owners corporation's claims as "bogus" and "frivolous"): at [87]-[88]. The rectification work ultimately proposed by the builder fell far short of what was needed, such that it was reasonable for the owners corporation not to permit the builder to rectify the works on the basis proposed: at [89].
What each of these judgments indicate is that whether the owner acted reasonably or unreasonably generally depends on a review of events as they have unfolded since building work was initially undertaken, traversing when defects were identified, subsequent negotiations, conduct during litigation and the extent to which the owner's complaints were ultimately vindicated by the court or tribunal. The following facts may tell upon whether an owner has acted unreasonably when dealing with the builder such that the owner's loss may be disregarded: 1. the extent and seriousness of the defects; 2. the quality of any repairs effected by the builder; 3. the builder's engagement with the owner in respect of the suggested defects and proposed method of rectification, in short, has the builder responded in a timely manner, taken the complaints seriously and acted fairly; and 4. the efficacy or perceived futility of continuing to negotiate with the builder.
Since Di Blasio, s 18BA was added to the Home Building Act, albeit the section does not apply to contracts entered into before 1 March 2015: sch 4, s 125(1) Home Building Act; Home Building Amendment Act 2014 (No 24) (NSW) Sch 1 at [27]. Section 18BA provides: (emphasis added) 18BA Duties of person having benefit of statutory warranty (1) Breach of a statutory warranty implied in a contract constitutes a breach of the contract and accordingly - (a) a party to the contract who suffers loss arising from the breach has a duty to mitigate their loss, and (b) the onus of establishing a failure to mitigate loss is on the party alleging the failure. (2) The duty of a party to a contract to mitigate loss in respect of a breach of a statutory warranty extends to a person who has the benefit of the statutory warranty or who is entitled to the same rights as those that a party to the contract has in respect of the statutory warranty. (3) The following duties apply to a person who has the benefit of a statutory warranty but do not limit any duty the person has to mitigate loss arising from breach of a statutory warranty - (a) when a breach of the statutory warranty becomes apparent, the person must make reasonable efforts to ensure that a person against whom the warranty can be enforced is given notice in writing of the breach within 6 months after the breach becomes apparent, (b) the person must not unreasonably refuse a person who is in breach of the statutory warranty such access to the residential building work concerned as that person may reasonably require for the purpose of or in connection with rectifying the breach (the duty to allow reasonable access). … (5) If a failure to comply with a duty under this section is established in proceedings before a court or tribunal concerning a breach of a statutory warranty, the failure is a matter that the court or tribunal may take into account. If the failure is a failure to comply with the duty to allow reasonable access, the court or tribunal must take the failure into account.
Where the owner may not have a contract with the builder, s 18BA codifies the owner's obligations to act reasonably in mitigation by notifying the builder of defects and allowing reasonable access to rectify such defects. Common law principles can be expected to continue to inform the application of the section and fill any 'gaps': Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 698-9 (Kirby P).

Referee's consideration

This brings me to the referee's report. In the relevant portion of the liability report, the referee set out the pleadings in respect of failure to mitigate and the legal principles, quoting extensively from Di Blasio and M D Constructions. The referee noted that a "key issue" was whether the defendants had been given a reasonable opportunity to rectify defects: liability report at [69]. The referee set out the parties' submissions. Before setting out the events in detail from 2015 until November 2019, the referee considered it necessary to determine a "hotly contested" issue in respect of onus: liability report at [74]. The referee then set out the parties' submissions on onus, most of which were repeated on this application. The referee accepting that, while the defendant carried the ultimate legal onus, the evidentiary onus of proving a failure to mitigate may shift to the plaintiff during trial: CJD Equipment Pty Limited v A&C Constructions Pty Limited [2011] NSWCA 188 at [88]. The referee did not accept, however, that it was enough for the defendants to prove that the owner had denied them access to remedy the defects; the defendants had to prove that the decision to deny access was unreasonable: liability report at [91].
The referee then moved to an issue which now finds voice in prayer 5 of the defendants' motion, being the import of assertions in solicitor's correspondence. The mediator set out the parties' submissions (repeated on this application) before considering the relevant authorities, being Subramaniam v Public Prosecutor [1956] WLR 965, R v Preston (Court of Criminal Appeal (NSW), 9 April 1997, unrep) (per Handley JA, Smart and Dunford JJ)), Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 and Re HIH Insurance Ltd (in liq) [2015] NSWSC 790. The referee accepted that a solicitor's letter could not be relied upon as to the fact of the assertions made in the letter but could be admissible as to the state of mind of the sender. The statement made by the owner's solicitor was contemporaneous to, and a direct reflection of, the minutes of the owner's committee meeting held a week earlier: liability report at [103]. The solicitor's letter was stated in similar terms to the minutes of meeting: liability report at [104]. On this basis, the referee accepted that the letter from the solicitor was a statement of the state of mind of the owner at that time and admissible as evidence on that basis: liability report at [105]. The referee had regard to other evidence which was in a similar vein: liability report at [106].
The referee then turned to consider the factual material in respect of the obligation to mitigate, traversing almost 40 pages of the report. He began from when the owners first obtained a building defects report in May 2015. In short, in 2017, the parties corresponded in relation to defects and participated in a settlement conference before the parties' respective experts jointly attended a site inspection. In 2018, without prejudice correspondence ensued to attempt to resolve the proceedings by the builder rectifying agreed defects. The correspondence went back and forwards over six months until October 2018, when the parties informed the associate to Ball J that the parties had reached an 'in principle' settlement and were in the process of finalising a deed of settlement.
The referee noted that, in November 2018, a draft deed of settlement and release was circulated but, on 26 November 2018, an owner's strata committee meeting was held, the minutes of which record: "The collective view of the Strata Committee is that as [the builder] continues to stall with undertaking the urgent building defects, they continue to lose faith in [the builder] being engaged to undertake the remaining defect works. P Macahdo advised that he was to speak with [the owner's solicitor] noting the Committee's above concerns and seek legal advice on whether it is in the Owners Corporations best interest to wait and have [the builder] attend site and cover the associated costs or alternatively, have the Owners Corporation proceed with the required repairs at their own cost."
The "P Macahdo" referred to in the minutes of 26 November 2018 was Patrick Machado, who ran the owner's defects sub-committee, gave evidence and was cross-examined. I note that it was put to Mr Machado by the defendants' senior counsel - as a positive proposition - that, by 5 October 2018, an impasse had been reached in settlement discussions. Mr Machado readily agreed, pointing to a number of bases on which an impasse had been reached, "we never succeeded in reaching the settlement." In particular, there was a disagreement on the rectification measures which would be undertaken, including for wet area defects.
In December 2018, the owner's solicitor wrote to the defendants' solicitor, complaining that urgent works required to remedy significant water ingress and defective fire safety measures had not begun, despite requests traversing some months: liability report at [173]. Further correspondence ensued. By February 2019, some work had begun to replace fire doors.
By April 2019, the owner's solicitors complained that essential fire safety defects had yet to be completed and there was no explanation for the delay, in light of which "I am instructed that the Owners have no confidence that your clients are willing or able to carry out the works in accordance with the timeframe or submission of the SFSS [Supplementary Fire Safety Statement] or at all." The owner's solicitor advised that, in order to ensure the safety of the building and its occupants in the event of fire and to comply with their obligations to submit the SFSS for the building, the owners would now proceed to engage Mr Yedalian and a joiner to carry out the necessary rectification works, the costs of which would be sought in these proceedings. The defendants' solicitors disagreed.
I note that Mr Machado said during cross-examination that, by then, he had asked the owner's solicitors to appoint a more senior solicitor given the owner's dissatisfaction with not having the fire safety works completed; Mr Machado approached the law firm and requested a change of solicitor. Mr Machado also said in cross-examination: "So, as you can imagine, in a situation where proceeding [have] been going on for six years, there have been multiple items of correspondence between the parties over time. Fire safety has consistently been the most significant issue because it was the one issue that impacted our lives. … [T]hat issue was raised repeatedly and with urgency after October '18 and before April '19, when we finally got fed up and reached the decision that we just needed to attend to this ourselves, and we did."
Mr Machado said that the builder was saying the right things but "They weren't doing it. … It's the actions that matter."
On 30 August 2019, I note that the owner filed the Summons and Technology and Construction List Statement. The referee noted that, by October 2019, the owner's solicitors advised that their client had lost confidence in the builder and was unwilling to allow the builder any further opportunity to repair the defects. In a very detailed analysis of events, the referee concluded that the defendants had been given a reasonable opportunity to undertake defect rectification but had failed to keep the owners properly informed of their progress. The owners did not act unreasonably in losing confidence in the defendants, nor in refusing to allow the defendants access to carry out further work.

Defendants' contentions

The defendants contend: 1 The Referee erred, as a matter of law or in the alternative, in his application of the proper legal standards to the established facts, dismissing the Defendants' claim that the Plaintiff failed to mitigate its loss, because he: a. failed to consider what a 'reasonable person', in the circumstances of the Plaintiff, would have done to avoid loss (not what the Plaintiff would of itself have done); b. found that the Plaintiff's conduct in preventing the Defendants from accessing the property to rectify those defects the subject of the Annexure A (Defects) to the agreed draft settlement Deed (Deed), or "any defects" (as [60] of [the liability report]), was in the circumstances reasonable; and c. found that even in circumstances where for one type of defect it was reasonable for the Plaintiff to not give the opportunity to the Defendants to rectify that type of defect, this did not mean that the Plaintiff was, not obliged to give the builder the opportunity in respect of the other type of defects, and in so doing, the Referee in effect ignored the positive obligation to give the Defendants a reasonable opportunity to rectify the Defects (or "any defects") and the opportunity to minimise the damages they were to pay by rectifying the defects. 2 In the alternative to Order 1 above, the Referee erred, as a matter of mixed facts and law, for the same reasons as identified in Order 1.
As earlier noted, whether there is a need to mitigate at the outset is a question of law. There was no dispute before the referee that the owner was obliged to mitigate. Whether the owner acted reasonably is a question of fact in all the circumstances of the case, not a question of law: see [40].
Prayers 1 and 2 do not correctly state the legal principles nor cite authority for the proposition in prayer 1(c). As I have endeavoured to set out, the referee undertook a very detailed analysis of events from when defects were first detected, including a protracted period of negotiations to a point at which the owner eventually lost patience. Where the referee was dealing with a question of fact, not law, and approached the task with great thoroughness, this points towards acceptance of the report on this subject. As McDougall J noted in Chocolate Factory, "The Court will not reconsider disputed questions of fact where there is factual material sufficient to entitle the referee to reach the conclusions he or she did": at [7(7)]. To do otherwise would frustrate the purpose of the rules for referral, even if the Court might have reached a different conclusion in some respect from that of the referee: Chocolate Factory at [7(9),(10)].
By the time of the owner's solicitor's letter in October 2019, advising that the owner had lost confidence in the builder, a year had passed since an 'in principle' agreement had been reached. The parties were yet to exchange a formal deed for the builder to remedy agreed defects. This fact speaks volumes. That the parties were unable to finalise their agreement over a protracted period suggests that the owner's perception that no agreement would be reached in a timely manner or at all was reasonable. The fact that the defendants continued to submit on this application that the owner's proposed method of rectifying the 'big ticket' item of bathroom falls is unreasonable rather confirms that the owner's assessment of the situation was correct. Nor does the fact that the owner had an eye to where its best interests lay disqualify the owner from recovering their loss, so long as the owner's approach to assessing that question was reasonable. What is reasonable is a question of fact in the circumstances of each case, and the referee has done a careful job in analysing those circumstances.
The defendants' next contentions concerned the onus of proof. The defendants contend in prayers 3 and 4 that the referee further erred as a matter of law in: a. failing to find that once the Plaintiff refused the Defendants access to rectify the Defects on 8 November 2019, the evidentiary onus shifted to the Plaintiff to establish that it was reasonable, in all the circumstances, for it to have acted in that way; and b. finding that the Defendant, in order to establish a failure to mitigate, had to "prov[e] the evidence" that stood behind the Plaintiff's decision (at [81], [88]), and [91] of [the liability report]).
In making such findings, the referee was said to have erred by "eliding the nature of a static legal onus with a concept of a shifting evidentiary onus and in so doing, the Referee created a further element required to be satisfied in order to establish a failure to mitigate; in circumstances where that further element not being known to the law": prayer 4.
The defendants submitted that the referee failed to find that, once the owner refused access on 8 November 2019, the evidentiary onus shifted to the owner to establish that it was reasonable for it to have acted in that way. The referee failed to consider that any 'loss of confidence' was a matter peculiarly within the knowledge of the owner's corporate mind. Where the owner did not call the other members of the Executive Committee, the defendants needed only "slight evidence" to establish failure to mitigate: Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 375; Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [121].
The defendants submitted that the referee directed his analysis to whether the builder had satisfied its onus by restricting his consideration to whether it was enough for the builder to establish that the injury suffered by the owner would have been less had the owner provided access to the builder so it could rectify the defects. The referee thereby focussed on the legal onus but not the evidentiary onus, ignoring the latter. An owner is required to give a builder an opportunity to minimise the damages it must pay by giving it the opportunity of rectifying the defects as it may be less expensive for a builder rather than a third party to rectify the defects: Di Blasio at [44], M D Constructions at [28]. Whether the owner's losses would have been less had the rectification been carried out was a secondary question. Once a contractor has established that a principal has refused it access to rectify defects, with no reasonable basis to do so, then the contractor has discharged its prima facie legal onus of proving a failure to mitigate. It is then incumbent on the principal to prove that it was reasonable in all the circumstances for it not to have done so. Whilst the "legal onus" to prove a failure to mitigate remained with a defendant, the evidentiary burden shifted to a plaintiff to demonstrate why its refusal to grant access was reasonable. The referee was said to have misunderstood and mis-applied CJD Equipment Pty Ltd v A&C Constructions Pty Ltd [2011] NSWCA 188 at [87].
The defendants submitted that the referee wrongly found that the owner's loss of confidence was 'reasonable' in all the circumstances. The referee did not consider that the owner was required to displace its evidentiary onus by establishing, on the evidence, that it acted reasonably in refusing the builder access to rectify the defects. Rather, the referee reversed the onus and approached his assessment by considering whether the builder had established those factual matters. The referee did not construe all of the evidence in an objective and rational way. A granular review of the referee's report followed.
It is not easy to fully absorb the defendants' submissions without having conducted the reference oneself. But the simple answer is that the referee was not bound by the rules of evidence: r 20.20(2)(b) UCPR. I accept, at a level of generality, the concepts of legal, evidentiary and shifting onus. Perhaps noteworthy, these concepts are not considered in any detail, or at all, in the authorities to which I have already referred on the principles in respect of mitigation: see [38]-[48]. No authority was cited for the proposition that, once the owner refused the builder access to rectify defects, the evidentiary onus shifted to the owner to establish that it was reasonable, in all of the circumstances, for it to have so acted. It would be a simple matter to establish - and indeed, would probably be uncontested - that at some point the owner refused the builder access to remedy defects. Whilst each case must turn on its particular circumstances, I agree with the referee that the fact that the owner refused access does not, of itself, shift the onus of proof from the builder to the owner to prove the reasonableness of that decision. Acceptance of such a proposition would effectively shift the onus of proof in respect of this defence from the defendant to the plaintiff for practical purposes.
By prayer 5, the defendants contended: (emphasis in original) The Referee erred in finding that correspondence between the parties' legal representatives, between in or about April 2018 and in or about November 2019 (section E4.6 of the [liability report] and at [881] of the [quantum report]), established, as a fact (at [210]-[212]) of the [liability report])), both "that the Owners were told certain things about the performance of urgent works, which [was] plainly relevant and admissible as to the state of mind of the [Plaintiff]" and that it had 'lost confidence' in the Defendants' ability, or willingness, to perform the rectification works (at [95]-[105] of [liability report]]) and in so finding, erroneously: a. ignored a ruling (T,136.30) that an assertion in correspondence between solicitors was not proof of the existence of the fact so asserted, but rather was merely hearsay evidence of the communication of an assertion about that the respective fact; and b. restricted his analysis to whether the Plaintiff's 'loss of confidence' was reasonable - not, as he should have done, being an analysis as to whether there was in fact, any such 'loss in confidence' ([219], [222], [226], [230], [235]-[237] and [242]-[244]).
In short, the defendants submitted that the referee relied on assertions contained in the correspondence from the owner's solicitors as the truth of the matters asserted, which was directly contrary to his earlier ruling "that an assertion in correspondence between solicitors was not proof of the existence of the fact so asserted". Had the referee abided by his earlier ruling, there would have been no lay evidence or documentary evidence on which to make a finding that the owner had 'lost confidence' in the builder. In so doing, the referee accepted that the solicitor's correspondence was admissible as proof of the 'state of mind' of the sender: Subramaniam v Public Prosecutor [1956] WLR 965. The 'state of mind' of the solicitor was not relevant. Section 69(3) of the Evidence Act 1995 (NSW) precludes such evidence. The representations made in the solicitor's correspondence were hearsay assertions: Pollitt v R (1992) 174 CLR 558 at 620. By receiving such evidence, including in face of his ruling to the contrary, the referee denied procedural fairness and drew an inference contrary to Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 230 (Mahoney JA). The defendants could not test the assertions in the solicitor's correspondence.
The defendants submitted that the referee erred in accepting the solicitor's letter as evidence of the owner's state of mind: at [101]-[103]. There were a multitude of equally plausible explanations for the statements made in the solicitor's letter. The decision to refuse access could reasonably have been part of the owner's forensic strategy where it considered it was in its own economic "best interests" to do so, as recorded in the minutes of a meeting of the Executive Committee on 26 November 2018.
The short answer, again, is that the referee was not bound by the rules of evidence. Nor does the referee appear to have taken the assertions in solicitor's correspondence - which I note the defendants' senior counsel put to Mr Machado in cross-examination as reflecting his views at the time - as evidence of the facts there stated. Rather, the referee had regard to the correspondence in combination with other contemporaneous documents which together painted a cohesive picture of the owner having lost confidence in the builder to attend to the rectification of defects in a timely manner or at all or in a manner which the owner regarded as acceptable: see [55].
Further, the import of the evidence given by Mr Machado in cross-examination is that the instructions for the solicitor's letters most likely came from the defects committee, where he did not generally trouble the executive committee with such correspondence nor consult the strata manager. Mr Machado did not specifically recall whether he gave instructions to send the solicitor the letter of 4 April 2019, but "this letter was sent as a recitation of the facts that had occurred up to that point."
It is clear from the referee's report that he took Mr Machado's evidence into account in his determination, as well as the evidence of Mr Doueihi and extensive contemporaneous communications. The referee's consideration of the evidence was most detailed and his conclusions available on the material, where I have relied on the referee's description of that material and 'spot checked' the accuracy of his summary from time to time.
Further, the defendants contended in prayer 6 of their motion: The Referee erred in failing to take consideration of all of the evidence with respect to the communications between the parties (see sections E4.5- E4.6 of the RR and at [881] of the RR Part 2) in circumstances where that evidence contradicted the reasoning, findings and conclusions of the Referee with respect to the Plaintiff's purported 'loss of confidence' in the Defendants.
The defendants submitted that, given the ruling made in respect of the solicitor's correspondence, it was not reasonable for the referee to draw the positive inference; it was not enough that the "links" considered as a whole lent support to the conclusion reached, where the strength of the individual pieces of evidence said to make up the 'links' has to be scrutinised: Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 at [48]; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
The defendants' complaint is a little non-specific, where the referee appears to have reviewed and summarised each and every piece of correspondence between the parties over 40 pages and made a finding of fact. I understand the defendants to be simply saying that the referee made the wrong finding. Even if that be so, that would not be a basis on which the Court would necessarily reject the referee's report, given the principles as summarised in Chocolate Factory.
Finally, in prayer 7, the defendants contended: The referee erred, in circumstances where the Plaintiff only called one member of the Executive Committee to give evidence, in failing to draw an inference that any evidence from the other members of the Committee would not have supported the Plaintiff in its claim that it reasonably refused the Defendants access because it had 'lost confidence' in the Defendants' ability to rectify the Defects, particularly given no attempt was made by the Plaintiff to prove that fact by direct evidence.
In short, the defendants submitted that the referee relied on the lay evidence of a member of the Strata Committee, Mr Machado, to corroborate the owner's solicitors correspondence where that correspondence infringed the referee's earlier ruling and was contrary to a further ruling made by the referee that Mr Machado's evidence was only evidence of his own opinion and belief, not as proof of the "state of mind" of anyone other than himself. Mr Machado agreed that he was not the person making the decision. Nor were there any minutes which supported that owner's loss of confidence in the builder.
The defendants submitted that they issued a Notice to Produce to the owner seeking documents evidencing the asserted 'loss of confidence' and, "predictably", nothing was produced. I note that the Notice to Produce called for documents recording the provision of instructions by the owner to its solicitors; whether that had anything to do with non-production is not known. What was produced were the minutes of 14 meetings of the strata committee meeting from 30 July 2018 to 13 November 2019, at which this subject was discussed.
The defendants submitted that the referee drew positive inferences in support of the owner's asserted 'loss of confidence', even though the owner failed to adduce any probative or admissible evidence, including failing to call members of the Executive Committee other than Mr Machado. The referee should have inferred that such evidence would not have assisted the owner: Burke v LFOT Pty Ltd (2002) 209 CLR 282 at [134], per Callinan J. An inference should not be drawn in favour of a party when direct evidence would have been available from that party but that party failed to call that evidence: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418.
Again, the referee was not bound by the rules of evidence. The referee was entitled to take Mr Machado's evidence into account and to "inform himself … in relation to any matter in such manner as the referee thinks fit": r 20.20(2)(b). The referee could well have considered that he was not satisfied that the owner had lost confidence in the builder on the basis of Mr Machado's evidence alone. In the absence of each of the members of the executive committee being called to set out what their view was at the time, the referee could have inferred that their evidence would not have assisted the owner and gone further to conclude that the owner had not in fact lost confidence in the builder. But the referee was not obliged to take this course and could equally have taken the view that Mr Machado was tasked with dealing with the rectification of defects by the owner, and the executive committee would have likely accepted that, as Mr Machado had no confidence in the builder, nor should they. I see no need to re-visit the referee's conclusion, where Mr Machado's evidence was only part of the evidentiary matters taken into consideration and detailed at length in 40 pages of the liability report.
The defendants sought a declaration that the owner failed to mitigate its loss, reasonably or otherwise, such that avoidable loss could not be recovered by the owner; rather than that the recovery was reduced after allowance for what should have been done by the owner but was not: prayer 17. In the alternative, the builder sought a declaration that any damages be assessed only on the basis that the owner took hypothetical action to rectify the defects and should be endowed with the commensurate hypothetical benefit, being the cost of the reasonable hypothetical steps, that is, accrued loss rather than future loss: prayer 18. For the reasons given, the defendants are not entitled to the declaratory relief sought.

BATHROOMS

By prayer 8 of the defendants' motion, it is contended that the referee erred "as a matter of law" in the liability report in: (a) finding that it was irrelevant in determining whether or not a defect existed in the ensuites and bathrooms (being inadequate falls) to consider the existence of 'ponding' - as that term is defined in Appendix B.5 of AS3740-2021 (at [262] of RR) (b) finding that because AS3740-2004 was the relevant standard at the time of construction any determination as to whether a defect existed in regard to inadequate falls, could only to be made by reference to AS3740-2004 (at [265]); and (c) failing to consider the agreed position as between the parties' experts that any rectification work to correct the inadequate falls in the bathrooms and ensuites would now have to be done in accordance with the AS 3740-2021, such that the bathrooms could already be compliant with that current standard.
The defendants sought an order under r 20.24 of the UCPR that the portion of the quantum report in respect of Item F1.1, being Items 1 to 35 in the Scott Schedule, 'Wet area defects' at pp 79-98, be rejected. An order was sought that any rectification be contingent on each bathroom and ensuite failing the 'ponding' requirement of Appendix Point 5 of AS3740-2021: prayer 19.
In prayer 9, the builder asserted that the referee erred because he failed to admit into evidence, on the basis of relevance, the following documents: 1. a contemporaneous contract/quote (MFI #4) for certain rectification works including the rectification of the Unit 4.02 bathroom and the Unit 4.02 ensuite, being the subject of Scott Schedule Items 12 and 13; and 2. a document prepared by Mr Madden (MFI #5) which was a comparison between Mr Macansh's estimate, his own and MFI #4.

Referee's consideration

I have earlier set out how the referee dealt with the defendants' tender of what became MFI-4 and MFI-5: see [33]-[34].
In his liability report, the referee began his consideration of the owner's claim in respect of the 32 bathrooms by setting out the defendants' submissions (largely repeated on this application) and the owner's response before turning to consider the standards in some detail. The referee accepted that the fall requirements in AS3740-2004 were not mandatory but spoke of recommended fall ratios: liability report at [260]. The standard did not describe a method to determine whether there was 'ponding'. The referee concluded at [262]-[263] of the liability report: "As there is no such test within AS3740-2004, I agree with the Owners that for the purposes of determining whether or not a defect exists, the method for determining ponding which is specified in Appendix B.5 of AS3740-2021 is irrelevant. I do not accept the Defendants' submission that there was any failure by either expert to carry out proper testing."
The referee also observed other differences between the two standards, which had the effect that applying the test for 'ponding' in the later standard would not result in compliance with all of the requirements of the earlier standard: liability report at [264(a)-(b)]. Further, the method for determining 'ponding' in the later standard would be difficult to achieve in practice and was not mandatory but provided for information and guidance: liability report at [264(d)-(e)]. Further, at [265]: "As AS3740-2004 was the relevant standard at the time when the Building was under construction, it follows that the only method for determining whether a defect exists in regard to inadequate falls, can only to be made by reference to AS 3740-2004."

Defendants' contentions

The defendants contended that the referee erred in assessing the defective nature (and scope of rectification) of the bathrooms and ensuites by reference to a superseded version of the applicable Australian Standard (AS3740-2004): The Owners of SP 97315 v Icon Co (NSW) [2023] NSWCA 303 at [11]. The referee failed to consider whether the bathrooms were compliant with the current standard AS 3740-2021. There was no dispute that the only mandatory requirement in AS 3740-2004 is that floor finishes in bathroom wet areas must be of such a steepness as is necessary to ensure that water is able to drain without ponding, such that it does not adversely affect the health or amenity of the occupants and/or the building elements. There is no definition of 'ponding' in AS 3740-2004, although there is a definition of 'ponding' in AS 3740-2021.
The defendants submitted that none of the experts had carried out testing to determine whether ponding subsisted to such a degree as to infringe the definition in Appendix B.5 of AS3740-2021. The referee erred in ignoring the current standard and did not accept that the bathrooms could, without any rectification work, already be compliant with that standard where it was unknown whether there is in fact any 'ponding' in the bathrooms after 5 hours at the specified atmospheric conditions in AS 3740-2021. The defendants' request for the bathrooms to be inspected and further test be undertaken was rejected. The referee ought to have found that further tests should have been conducted in order to ascertain whether the un-rectified bathrooms complied with the new AS 3740-2021, such that the plaintiff would suffer no loss to the extent that they did. Contractual loss does not include loss that is not reasonable for the wronged party to recover: North East Equity Pty Ltd v Proud Nominees Pty Ltd (No 2) [2008] FCA 1189 at [382]-[384] (Rares J); Renown Corporation Pty Ltd v SEMF Pty Ltd (2022) 110 NSWLR 246 at [20] (Brereton JA); Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 at [76] (Hammerschlag J).
The defendants submitted that the bathroom contract was relevant as objective and independent evidence of the market cost to rectify a bathroom in the property the subject of these proceedings.
The owner submitted that the referee concluded that the method for determining whether ponding exists as stated in AS3740-2021 was irrelevant, not the "existence" of ponding per se. The referee correctly found that the proposed method in Appendix B5 of AS3740-2021 "imposes a number of conditions that would be difficult, if not impossible, in practice to achieve". The parts of the current version of the standard that the defendants sought to invoke were not mandatory or determinative, but merely for information, as the referee observed. The referee addressed the defects as found and agreed between the experts and proposed methods of rectification. There was no relevant error. Not only did the owner and the referee decline the builder a further opportunity to inspect the bathrooms, so did Ball J on 8 September 2023, with costs.
The owners further submitted that there was no error of law, where the measure of damages is the amount of money which will place the owner in the position they would have been had the contract been performed: Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8; Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36. The general rule is that damages for breach of contract are assessed as at the date of the breach: Johnson v Perez (1988) 166 CLR 351 at 367. There was no basis for assessing damages as at 2021 or later. In this case, 'the contract' incorporated the version of AS3740 in force at the time, being AS3740-2004. Whether or not the work conformed to some other or later version of AS3740 was immaterial. That the experts agreed the bathrooms might already be compliant with the current standard was speculation and did not impact the owner's right to damages. The referee made findings as to the reasonable and necessary scope of works having regard to the agreement as to inadequate falls. The defendants bore the onus and had every opportunity to adduce evidence to establish that what had been constructed or what it proposed by way of remedial works provided functional equivalence but failed to do so: Building Insurers' Guarantee Corporation v The Owners Strata Plan 57504 [2010] NSWCA 23 at [79]-[81].

Consideration

The referee's analysis of the two standards, with respect, appears to be without error. I do not agree with the defendants' contentions for, essentially, the reasons advanced by the owner. The general measure of damages is the amount, so far as money can provide, necessary to put the plaintiff in the position they would have been if the contract had been performed: Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350; Wenham v Ella (1972) 127 CLR 454 at 460 (per Barwick CJ); Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653; [1986] HCA 81. True it is that, in building cases, the remedial building work which an owner is entitled to undertake at the expense of the builder must be "necessary" and "reasonable", which is a question of fact in each case: Bellgrove v Eldridge (1954) 90 CLR 613 at 619.
The suggestion that remedial building work is "unreasonable" will only be satisfied in "fairly exceptional circumstances": Tabcorp Hold v Bowen Investments (2009) 236 CLR 272 at [17]. Examples are where the owner is "merely using a technical breach to secure an uncovenanted profit" or where the costs of the proposed rectification is out of all proportion to the benefit to be obtained: Owners SP 92450 v JKN Para 1 Pty Ltd [2023] NSWCA 114 at [70]; followed in Icon at [12] (per Bell CJ). A defendant in such a case may actually have the legal onus of proving functional equivalence, so that reinstatement would be unreasonable: Building Insurers' Guarantee Corporation v The Owners Strata Plan 57504 [2010] NSWCA 23 at [80].
The referee had before him two building experts, who agreed that there were inadequate falls in all of the bathrooms. The only point of controversy was the method of rectification. The possibility that the bathrooms, or some of them, might not have 'ponding' according to the method described in the 2021 standard was just that: a possibility. Some six years had passed between the commencement of these proceedings in NCAT and the expert conclave on this issue in September 2022. The defendants had ample time to explore this matter, but had not done so by the time the referee heard the evidence on this issue. Where the experts, including the defendants' expert, agreed that there was a defect, it is difficult to see why the referee erred in proceeding as he did. Put another way, the defendants fell far short of establishing the "fairly exceptional circumstances" that, notwithstanding the agreed defect, the costs of rectification were "unreasonable": Tabcorp v Bowen Investments at [17].
As to the complaint about the MFIs, the approach taken by the referee to the tender of the contract and Mr Madden's analysis was, with respect, unremarkable. The referee could inform himself in relation to any matter in such manner as he thought fit. The referee was entitled to conclude that this material was of no assistance, or relevance, to him. Whether or not that might be considered an error is irrelevant as it was plainly within the referee's remit.

SCOTT SCHEDULES

By prayer 11 of the defendants' motion, it is contended: 11 The Referee erred in allowing any of the costs (unless otherwise agreed to by the Defendants) the subject of the "H8.1 Yedalian Invoices" and the "H8.2 Van Oort Invoices" (at [855], [858], [881] and [885]) (the Invoices) given: (a) the Invoices were rendered following the commencement of the litigation, and properly understood were costs occasioned by the litigation - not damages (or at the very least not shown to have been damages); (b) the Invoices did not form part of the Scott Schedule (at [887] of the [quantum report]), and in that respect, the finding ignored the Referee's own ruling that Items not were detailed in the Scott Schedule they would be ignored (T.142, 31-33 and [liability report] at paragraphs [23]-[25]); (c) the Referee relied on the concept of 'urgent works' even though there was no expert evidence establishing that the works the subject of the Invoices arose [from] the rectification of any 'urgent works' and the correspondence referring to the 'urgent works' was not evidence of the truth (at [857] and [913] and [923]); and (d) the Invoices themselves did not contain adequate detail as to how the amounts claimed in each particular invoice had been arrived at; particularly, in circumstances where there was no admissible evidence as to the verification of hours worked, the rate for the work, the materials used and the cost of materials or indeed the necessity that the works be performed (at [893]).
The defendants sought an order under r 20.24 that the relevant portions of the referee's quantum report be rejected accordingly, being the last 20 pages: prayer 15. The defendants submitted that the referee ought not have allowed the claim for the so-called "Yedalian works" in circumstances where Mr Yedalian was said to be incapable of differentiating which works he had performed were for the purposes of litigation and which were genuine rectification of defects. The defendants submitted that many of the invoices were properly understood as claims for 'costs' incurred rather than 'damages'. While an owner may be entitled to recover the reasonable costs associated with engaging a third party to investigate and report on the extent of a defect caused by another's breach of obligation, an expert engaged for the primary purpose of their report being used in litigation may be recoverable as legal costs but not damages: Linklaters Business Services v Sir Robert McAlpine Ltd [2010] EWHC 2931 (TCC) at [167]-[168] (Akenhead J); McGlinn v Waltham Contractors Ltd [2007] EWHC 149 at [910]-[915] (Coulson J).
The defendants submitted that, while Mr Yedalian was initially engaged by the owner in October 2018 to review the mechanical services in connection with the issue of the AFSS, he then met with the owner's expert, Paul Jones, in January 2019 to "discuss the mechanical and fire safety at the building". All Van Oort invoices post-dated commencement of the proceedings. There was no evidence that any of these later claims arose as a result of complaints from lot owners. To the extent that the owner wished to claim Mr Yedalian's professional fees and the Van Oort invoices as damages, it must establish that the fees were incurred as a direct result of necessary remediation work, as distinct from investigation. Otherwise, those fees could only be recovered as costs of the legal proceedings.
Further, the defendants submitted that, for the most part, the works the subject of these invoices were not particularised in the Scott Schedule: r 15.2, Uniform Civil Procedure Rules 2005 (NSW). The practical effect of this was said to be that the necessity or reasonableness of most of the items were not considered by the parties' experts: quantum report at [852(a) and (d)]. Notwithstanding this, the referee held at [887] of the quantum report: "Even if I assume for the moment that the above costs are not referable to an item in the Scott Schedule, I agree with the Owners that this is of little consequence given that paragraph C18 of the List Statement and the Particulars referred to therein, make it clear that the Owners would be seeking to recover any such rectification costs as damages. The mere fact that the Quantum Experts may not have taken the Van Oort Invoices into consideration is of no consequence, so long as there is no duplication of the costs being claimed."
The defendants submitted that this was contrary to another ruling of the referee on 19 September 2022 (reproduced at [26]) and a portion of his liability report (at paragraphs [23]-[25]) that any Items which were not detailed in the Scott Schedule would be ignored. The defendants submitted that they proceeded in accordance with the referee's rulings, which were then ignored, diluting their right to natural justice. The defendants were said to have been denied the opportunity of adducing evidence from their own expert and seeking admissions from the owner's expert regarding the necessity and reasonableness of these claims.
The defendants submitted that the owner failed to establish any nexus between the invoices and the defects, where the invoice evidence amounted to assertions: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Ors (2004) 219 CLR 165; West Boat Builders Pty Ltd v Cull Holdings Pty Ltd (2000) 16 BCL 21. The same objections were made in respect of the Van Oort invoices. Further, the defendants submitted that a significant portion of the invoices related to works which were not necessary. For example, Item M7 was found not to be a defect. The referee erred in treating this claim as costs incurred by reason of a 'loss of confidence' in the builder.
The owner submitted that Mr Yedalian was not relied upon as an expert in the proceedings, although he was relevantly qualified. The fact that the invoices were issued after the litigation commenced did not mean that the costs incurred were for the proceedings rather than for rectification works. This was a matter of fact for the referee to determine on the evidence, and there was no relevant error in that regard. The referee first considered the actual costs referable to Mr Yedalian that were included in the Scott Schedule and then those invoices that were not included in the Scott Schedule, giving careful consideration to the scope of works that was proposed to be undertaken having regard to the face of the invoices in respect of particular rectification costs. There was no basis for the court to revisit this finding of fact having regard to the amount in issue: Chocolate Factory Apartments.
The owner submitted that these costs were always part of the owner's claim pleaded in paragraph C18 of the List Statement. Mr Yedalian's costs were referred to in the Scott Schedule in Items F1 and F7, which related to fire safety defects identified by the experts and attended to by Mr Yedalian. That was sufficient. (The builder rejoined that it was a case of Mr Yedalian saying that his evidence came within the Scott Schedule but was not in the Scott Schedule prepared with reference to his evidence so that the experts could consider it; this was why it was objected to.) The claim was the subject of affidavit evidence served over a year before the quantum hearing. The use of the Scott Schedule was intended to facilitate the efficient conduct of the proceedings, not to exclude claims the subject of pleadings and evidence. Nor was there any prejudice to the builder where it was on notice of the claim and the evidence, had ample opportunity to address the invoices and did so.
The owner disputed that the referee had made a ruling that any items not included in the Scott Schedule would be ignored. Rather, the Scott Schedule was to be utilised to address the position of the parties' experts in respect of the defects, which position would ultimately be developed further during the hearing before the referee. The part of the transcript relied on by the defendants concerned the joint report of experts as to water ingress. The defendants objected that the joint report sought to introduce "new items". The referee's observation as to Scott Schedule concerned the expert evidence, not lay evidence of the actual costs claimed.
The owner rejected the notion that the referee relied on the concept of 'urgent works' in the manner suggested. The referee stated that the owners had put the builder on notice that the owners would proceed with certain works by engaging Mr Yedalian and seek to recover the actual costs incurred. The referee did not conclude that the rectification costs were incurred because they were 'urgent', but simply that the rectification works were performed. Whilst the referee made comments that rectification works in relation to fire safety and water ingress were 'urgent', those comments arose from assertions by the parties in their correspondence that works were 'urgent' and the absence of evidence from the builder contradicting the owner's position that the works were urgent.

Principles

The Scott Schedule was devised in the 1920s by Judge George Alexander Scott QC, who sat as an official referee in the High Court of Justice of England and Wales: Richard Manly SC, "The Use of Scott Schedules in Technology, Engineering and Construction Litigation" (2011) 27 Building and Construction Law Journal 151. The purpose of a Scott Schedule was explained by Judge Mazza in Dale v Dennis [2005] WADC 49 at [5]: "A Scott Schedule is a pleading usually ordered in actions where a party's case is made up of a substantial number of claims. The Scott Schedule allows the court determining the action to have conveniently before it a document which gives a full description of each claim and the contention of each party with respect to it. … A Scott Schedule has been aptly described as 'a useful procedural device which achieves a considerable saving in money and time': The Supreme Court Practice 1991 …"
So far as the rules of this Court are concerned, rr 2.1 to 2.3 of the UCPR give power to give directions to achieve the "just, quick and cheap disposal of the proceedings", including directions for the filing of Scott Schedules in r 15.2: r 2.3(d). Part 15 of the UCPR concerns "Particulars". Rule 15.2 provides: 15.2 Use of "Scott Schedule" in building, technical and other cases (1) In proceedings involving a building, technical or other matter in which several items of a claim are in dispute as to liability or amount, or both, the party making the claim may, and if the court so orders must, prepare and file a "Scott Schedule" in the approved form. (2) A party on whom a Scott Schedule is served must complete and file the Schedule.
The approved form is Form 13: Scott Schedule.
Like any particulars, a Scott Schedule can be amended "at any stage of proceedings" having regard to the dictates of justice and for the purpose of determining the real questions raised by the proceedings, correcting defects or errors, and avoiding multiplicity of proceedings: ss 58, 64(2), Civil Procedure Act. As the learned authors of Ritchie's Uniform Civil Procedure (NSW) observe at [s 64.50]: "… leave to amend particulars will usually be granted where the amendment is in accordance with the substance of the existing pleadings: Clarapede and Co v Commercial Union Assn (1883) 32 WR 262; and especially where the amendment sought is in accordance with evidence that has actually been given: Dare v Pulham (1982) 148 CLR 658; 44 ALR 117; BC8200139; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; [1956] ALR 795; Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446; 50 ALJR 666."
Absent a direction by the Court to the contrary, a Scott Schedule is like any particulars such that, should a party wish to adduce evidence or contend a proposition which is not adequately disclosed in the Scott Schedule, the usual considerations apply as to whether that ought be permitted, including having regard to the stage of the proceedings and the ability of the opposing party to meet that additional evidence or contention.

Consideration

In the Summons and Technology and Construction List Statement, the owner pleaded: The Defects 17. Upon completion, the Works did not conform to the requirements of the Statutory Warranties and, because of such breaches, were defective (the Defects). Particulars The Defects will be particularised in the expert evidence and a Scott schedule to be filed and served in these Supreme Court proceedings. 18. Ceerose and Prisand are, and each of them is, liable to the OC for the costs of repairing and rectifying the Defects in the Works, and for loss and damage suffered, or that will be suffered, by the OC by reason of their failure to carry out the Works in conformity with the Statutory Warranties. Particulars (i) The costs associated with the repair of the Defects. (ii) The costs associated with engaging experts to investigate and identify the Defects and to propose methods of rectification. …
No further directions were made by the Court in respect of a Scott Schedule. Rather, Hammerschlag J considered "that the referee should determine whether the plaintiff should serve a Scott Schedule in accordance with UCPR rule 15.2." Whether the referee made any directions in this regard is not known.
According to the liability report, the referee was provided with a Scott Schedule by the defendants on 17 April 2022, which was updated on 27 April 2022. Further, the referee noted at [24]-[25]: 24. I have referenced the items (Items) listed in that Scott Schedule as a convenient means of identifying the Defects which were referred to in paragraph 17 of the List Statement and in the various expert reports. 25. However, it should be noted that while the Scott Schedule was said to represent the position of the parties in relation to each of the listed 336 Items, I have assumed that this stated position was superseded by the various joint expert reports that were produced by the parties' experts from 19 April 2022 onwards, in the absence of any submissions from the parties to the contrary.
The suggestion that, by these paragraphs, the referee made plain that any items not in the Scott Schedule would be ignored is difficult to understand. Nor did the referee's comment in September 2022 (see [26]) amount to a "ruling" that, if an item was not referred to in the Scott Schedule, it would not be considered. The referee said nothing about loss and damage sought to be recovered under other portions of the pleading. The owner's claim for Mr Yedalian's invoices and the invoices attached to Mr Van Oort's affidavit clearly fell with paragraph 18, particulars (i) and (ii) of the Technology and Construction List Statement.
Nor do I accept that the defendants were denied natural justice, where the owner served affidavits from Mr Yedalian well in advance of the hearings. The claim for these expenses was particularised in prayer 18 of the Technology and Construction List statement. The affidavits made plain, if there was any doubt about it, that the owner sought to recover Mr Yedalian's invoiced amounts. Mr Yedalian was cross-examined by the defendants' senior counsel at length.
As to whether Mr Yedalian's invoices or the invoices annexed to the affidavit of Mr Van Oort were, in fact, in respect of "costs associated with the repair of the Defects" as opposed to the costs of litigation, the referee was not bound by the rules of evidence. It is clear from the referee's report that he closely examined each and every invoice and formed a view. Whether that view was right or wrong, it was clearly available to the referee and is no basis to reject the report.

MINOR ERRORS

By prayer 13, the builder contended that the referee made clerical errors in calculating the quantum for Item 88, Item 99 and Item F1 in the Scott Schedule, at paragraphs [592]-[594] and [595]-[597] of the quantum report. The defendants sought an order that Item 88 be reduced to $38,046, Item 99 be reduced to $315 and Item F1 be reduced to $14,245.
The owner did not initially address these items by reason of the minor amounts involved, but have since done so at my request.

Scott Schedule Item 88

The parties agree that the referee made a mathematical error and agrees that the correct quantum for this item is $42,299.95.

Scott Schedule Items 99-106

The referee found that Items 99 and 100 (in respect of gaps in the air conditioning vents on Level 2 and 3) were defects and found that Item 101 (hole where a light was removed) was not. Items 102-106 were not pressed by the owner.
The defendants submitted that in Annexure C for Items 99-106, the referee included the costs for the rectification method for the vent, louvre, grill, light (in rows 11-48), being those costings relating to the rectification of Items 99 and 100. However, at row 49 (coloured in green), the referee noted, "[f]or gaps exceeding 2mm in width in plasterboards - not addressed in Goldsteins Liability Report" and everything below that 'green line' relates to the rectification methodology for gaps exceeding 2mm, that is, the works associated with Items 102-106. As those Items were not pressed by the owner, the defendants' submitted, that those costs ($1,615) should not have been included.
The owner did not agree that the amount awarded included items 102 to 106. Although the referee's reasoning in the quantum report at [595] to [597] was brief, the referee referred to the experts' assessment of the total costs to rectify "these defects". The experts agreed on the cost of rectification of the gaps and finishes in linings for common property on levels 2 and 3 (that is, Scott Schedule items 99 and 100), which agreed costing was $2,016 (excluding GST). This was ultimately reduced to $1,930 (excluding 0GST) by the referee. The owner submitted that the defendants had misread the spreadsheet. The items above the 'green line' in the spreadsheet related to the removal and reinstallation of elements which may be fixed to the linings the subject of items 99 and 100 that require repair or replacement.
After the liability report was issued, the owner's quantity surveyor provided an updated report, calculating the cost of rectification of Items 99 and 100 at $2,016. The defendants' quantity surveyor, Mr Madden, completed a report in reply, putting the figure at $401. Mr Madden explained the difference between the experts by reference to the liability report at [533], where the referee stated: The General Defects Experts agreed that Item 99 was a defect and they agreed on the following method of rectification: a. Protecting adjacent areas; b. Adjusting the vent in position, if possible; c. If not possible, remove vent and reinstall; d. Make good any disturbed surfaces; and e. Clean on completion.
Mr Madden noted that the other steps and method of rectification identified and costed by the owner's expert were not listed at [533], and thus were costed at $0, but "If this item is deemed to be required, I agree with the [owner's expert] cost".
In "Annexure C - the final spreadsheet" annexed to the referee's quantum report, the referee allowed $1,930.16 in respect of Items 99-100. In a more detailed spreadsheet (referred to by the parties in their submissions), the referee set out the costs associated with the method of rectification which had been itemised in his liability report at [533] and then, below a coloured line with the explanation "For gaps exceeding 2mm in width in plasterboards - not addressed in Goldsteins Liability Report", proceeded to cost the steps in the method of rectification which had been set out by the owner's quantum expert but no specifically listed in the liability report.
As I read it, the referee was addressing the query raised by the defendants' quantum expert as to whether these additional steps were in fact meant to have been included, in which case the defendants' quantum expert agreed with the costings of the owner's expert. The total figure was not in respect of items which were either found not to be a defect, or not pressed by the owner, being Items 101-106 but all related to Item 99 and Item 100. No change need be made to the referee's calculations on this account.

Yedalian Costs (F1) ($3,050)

The parties agreed that the referee had made a mathematical error, double-counting an invoice of $3,050.
In the result, save for the agreed corrections, I consider that the ultimate interests of justice are served by the adoption of the referee's reports in whole, including having regard to the principles s 56 of the Civil Procedure Act: Woolf v 52 Birriga Road at [29].

ORDERS

For these reasons, I make the following orders: 1. Order pursuant to r 20.24 of the Uniform Civil Procedure Rules 2005 (NSW), that the following sections of the report of Steven Goldstein, Referee, dated 11 June 2024 be varied: 1. Item 88 from $44,895 to $38,046; and 2. Item F1 from $17,295 to $14,245. 1. Subject to Order 1, the reports of Steven Goldstein, Referee, dated 24 March 2023 and 11 June 2024, prepared pursuant to the orders for reference made by his Honour Justice Stevenson on 1 October 2021 are wholly adopted by the Court in accordance with r 20.24(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW). 2. Judgment for the plaintiff in the amount of $1,952,984 (exclusive of GST). 3. Order the defendants to pay the plaintiff's costs of the Notice of Motion filed on 12 July 2024 and the Notice of Motion filed on 16 July 2024.

Amendments 27 November 2024 - [67] "advised" becomes "advising" [73] … these concepts are "not" considered 11 December 2024 - [87]: "that referee" amended to "the referee" 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: 11 December 2024

Home Building Amendment Act 2014(NSW)

(2021) 106 NSWLR 520

(2022) 110 NSWLR 246

The Owners - Strata Plan No 89074 v Ceerose Pty Ltd

At a glance

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Judgment (21 paragraphs)

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Cases Cited (51)

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