In Votraint No. 1019 Pty Ltd v Zauner Construction Pty Ltd [2023] NSWSC 1055 (Votraint), the New South Wales Supreme Court considered the admissibility of expert evidence in circumstances where the expert was unavailable for cross-examination.

Votraint No. 1019 (the Owner) engaged Zauner Construction Pty Ltd (the Builder), to design and construct four houses. Following completion, the Owner engaged a building surveyor (the Expert) to inspect the houses and prepare a defects report (the Report) which was provided to the Builder. A number of years later, the Owner commenced proceedings against the Builder, for alleged defective works and breach of contractual warranties.

During the conduct of the proceedings, the Owner’s Expert advised he was no longer in a physical or mental state to be cross-examined. In light of this, the Owner made an application for leave to tender the Report, despite the Expert being unavailable for cross-examination. The Builder contended that if leave were granted, it would be unfairly prejudiced as it would be prevented from cross-examining the Report’s author.

Stevenson J found in favour of the Owner, stating that if leave were refused, the Owner would face greater prejudice than the Builder. His Honour held that, in circumstances where the majority of the defects identified in the Report had been rectified by a third party in early 2020, the Owner was unlikely to be able to replicate the evidence by commissioning a further report. If the Owner were not permitted to rely on the Report containing its primary evidence of the defects existing at the date of the Report, the Owner would face difficulty in maintaining its proceedings.

In deciding to grant leave, his Honour also noted (amongst other things) that:

• the Expert’s unavailability was not due to a failure on behalf of the Owner;
• the Builder elected not to procure a responsive Expert report, despite being aware that the Owner intended to have the defects rectified by a third party;
• the Report was the only independent report prepared following an inspection of the alleged defects; and
• under the Uniform Civil Procedure Rules, the Owner would be permitted to tender the Report without leave had the Expert died, and his Honour found no reason why the position should be different where the Expert was similarly unavailable due to incapacity.

Having found for the Owner, his Honour concluded the inability of the Expert to be cross-examined ultimately remained a matter for the Judge presiding over the final hearing to consider when assessing the weight to be given to the Report’s conclusions.

The full decision is available here.