Expert Evidence – Critical to good outcome in Building Matters

23/04/2018

Watson & Watson have been involved in many cases involving building and construction in particular residential building issues considered in various Courts and Tribunals including particularly at the New South Wales Civil and Administrative Tribunal (NCAT) or its predecessor Consumer Trader and Tenancy Tribunal (CTTT).  We refer to our brief article 12 May 2015 wherein we noted a few cases in which we were involved in 2014 in which the other party had Expert Evidence which was not accepted by the particular Tribunal Member hearing the matter.

As we indicated it is false hope for a party to engage an Expert when the Expert is not accepted by the Tribunal.

Since 2015 there have been hundreds of cases where Experts have not been accepted by the Tribunal for one reason or another.

We believe it is critical that the appropriate Expert be engaged to consider the important issues in your particular case and to prepare the appropriate report and give evidence which is acceptable to the Tribunal.

Before engaging Experts we ascertain that the Expert(s) have the appropriate expertise including specialised knowledge based on their training, study and experience who can give evidence of an opinion based wholly or substantially on that knowledge.  We also enquire to establish there is no basis of a conflict to give this independent evidence in the particular case in which evidence is required.

We recommend an inspection of the property/site and building works at a very early stage with an appropriate Expert who can discuss the matter and issues at the site inspection usually also attended by Richard Watson.  We have a Panel of Experts whom we engage.  We can provide to you a set fee for the initial site inspection process.  At that site inspection you will receive an initial preliminary review which will assist you greatly as to what course should be adopted in relation to either pursuing a claim or defending a claim.  We prefer that this occurs as soon as we receive instructions so that you are put into a position where you can make decisions based on the site inspection.

Expert witnesses are under obligations of independence and a duty to give unbiased evidence.

Often we find that Experts proffer opinion on areas which they should not as they do not have the particular experience or skill in relation to that area of expertise.

Sometimes we find that evidence produced by a party in our view, is deficient and sometimes seriously deficient and the Expert evidence is inadequate.  This must be seriously considered so that the Expert evidence on behalf of our client is appropriate so as to best protect our client in relation to the conduct of the matter.

In one recent case we acted on behalf of an Owner.  The Builder was unlicensed and had no enforceable Contract as it did not comply with the requirements of the Home Building Act.  However the Builder sought to claim outstanding moneys based on the Contract.

This is not allowable however the Builder in such circumstances could claim based on quantum meruit rather than on the basis of the alleged terms of the Contract.

When a Builder claims on quantum meruit, sometimes we find the claim is not structured in the appropriate manner for such a claim.  Sometimes there is inadequate factual information that would allow either the Expert or the Tribunal to ascertain what was the Scope of the Works undertaken by the claimant Builder or the basis of quantifying the value of the works undertaken by the claimant.

In such a case when we act for the Owner there is real issue as to what approach should be adopted in obtaining the appropriate evidence to defend the claim.

An initial assessment should be made as to the appropriateness of the claim by the Builder.  Often the Builder’s claim is over stated sometimes where the Owner has been reasonable and made payments of an appropriate amount and on a proper consideration of the matter, there are no moneys due.  Sometimes there is a small amount due compared with the claim by the Builder.  Early assessment by an independent Expert assists in ascertaining the position and the best approach to resolve these issues.

We encourage settlement negotiations at an early stage so as to reduce the costs and disbursements that will be incurred.  Those costs and disbursements are very significant and can be critical as to the overall outcome achieved in the proceedings.

There has been a change to the NCAT Procedural Directions in February 2018 which is significant.  We refer to our further article relating to February 2018 changes in the Procedural Directions for Expert Evidence dated 19 April 2018.

If you have any concerns or queries regarding the engagement of an appropriately qualified Expert to assist you in providing Expert evidence in your building dispute, please contact the experienced Solicitors at Watson & Watson by contacting Richard Watson Accredited Specialist Commercial Litigation Building and Construction or his Personal Assistant Shereen Da Gloria to discuss your matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.