A cautionary tale from the Technology and Construction List

Case management is critical in civil litigation. Section 56 of the Civil Procedure Act 2005 (NSW) mandates that the overriding purpose of the rules is to facilitate the just, quick and cheap resolution of the real issues in dispute. The decision of Stevenson J in The Owners – Strata Plan No 95242 v Karimbla Properties (No 42) Pty Ltd [2024] NSWSC 1625 is a timely reminder of the consequences of mismanaged litigation. It highlights the risks of indecision, inconsistent forensic strategy, and delayed communication — particularly where expert evidence forms the backbone of a plaintiff’s case.

Background

The plaintiff, the owners corporation of a large residential development in Zetland known as “Symphony”, commenced proceedings on 21 April 2023 alleging building defects across the 223-lot scheme. The claim was brought against the developer, builder, and subcontractors (all part of the Meriton Group) in the Supreme Court of New South Wales. The proceedings related to claims under the Home Building Act 1989 (NSW) and Design and Building Practitioners Act 2020 (NSW) regarding alleged defects in the construction of the building.

The judgment related to a determination by his Honour Justice Stevenson of an application by the owners to file additional expert evidence.

His Honour was particularly critical of the conduct of the litigation, observing the proceedings had been “stood over on a large number of occasions from Friday to Friday”, with the plaintiff’s evidence served incrementally in October and November 2023. These reports covered inspections of only a portion of the lots in the building, with the owners instructing the experts to only inspect a quarter to a half of the lots.

The judgment details how, over the course of 2024, the plaintiff’s position evolved without clear explanation or direction. A Scott Schedule identifying over 4,000 alleged defects was eventually served in April 2024, but the plaintiff remained non-committal about whether further expert evidence would be served. On 14 June 2024, the plaintiff’s lawyers conceded that the earlier reports were based only on sample inspections and that the defects identified appeared to be systemic.

Still, it was not until 16 October 2024—nearly a year after the original reports were served—that the owners corporation resolved to pursue a full expert inspection of all 223 units and consequently made the application for a further eight-month adjournment to complete the expanded inspections and expert reporting.

Stevenson J was forthright in his critique:

“This case represents an example of how proceedings in the Technology and Construction List should not be conducted.”

He further noted the absence of any satisfactory explanation for why the plaintiff initially adopted a sampling approach and only later decided it was inadequate.

The procedural dysfunction in this case contradicts the obligations in sections 56 and 59 of the Civil Procedure Act 2005 (NSW). Section 59, in particular, emphasises the duty to avoid unnecessary delay.

Justice Stevenson reiterated the dangers of sporadic evidence filing, quoting submissions from Mr Sirtes SC (for the first and second defendants):

“This Court did not allow parties to file their evidence episodically and at a time of their own choosing. Such a practice would turn case management on its head. Yet, this is precisely what the Plaintiff asks the Court to do now.”

While noting that the way the proceedings had been conducted was unsatisfactory, Stevenson J nevertheless allowed the plaintiff to adduce further evidence—albeit on strict terms.

Justice Stevenson recognised the seriousness of the potential systemic defects, which, if proven, could amount to remediation costs of up to $8 million. Denying the plaintiff the opportunity to properly present its case would not be just, he said—though he did not let their litigation conduct go unaddressed.

The Court granted leave for further expert evidence, but on a limited basis, within a much shorter timeframe than requested and with an order that the plaintiff pay the defendants’ costs thrown away by the making of the orders.

Takeaways

This decision carries several important takeaways for both lawyers and their clients, and experts, particularly those involved in large-scale construction disputes in the technology and construction list:

1. Setting a clear litigation strategy from the outset is vital to enable efficient case management and to avoid criticism from the Court regarding a party’s conduct.

2. Litigation involving building defects often turns on expert reports. It is important to get those reports right, preferably the first time.

3. Leave to file additional or late evidence is not granted lightly and it should not be assumed that it will be forthcoming from the Court, or forthcoming without significant consequences.

The Owners – Strata Plan No 95242 v Karimbla Properties (No 42) Pty Ltd [2024] NSWSC 1625 is a timely reminder that the overriding purpose of civil procedure legislation is more than aspirational—it requires tangible, disciplined conduct from all parties.

While the Court ultimately prioritised justice over procedural perfection by allowing further evidence, the decision is a stern warning about the costs, both literal and procedural, of mismanaged litigation.

Authors: Sharon Levy & Antoni Risteski

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.