Evidence by Experts – New NCAT Procedural Direction Applies from 11 September 2024 includes Claims under the Home Building Act in excess of $30,000. What evidence is required?

09/10/2024

At Watson & Watson, Richard Watson has dealt with hundreds of cases requiring Experts in many fields of expertise.  Expert evidence can only be provided by the appropriately qualified and experienced Expert.  We refer to for example, our article relating to the case of Makita (Australia) Pty Limited v Sprowles [2001] 52 NSWR708. 

Experts are required in many cases in particular, where issues of a technical nature need to be determined by a Court or the New South Wales Civil & Administrative Tribunal (NCAT). For example, Experts are required to enable the Court or NCAT to determine the issues in a particular case, for example relating to Building and Construction claims and often there is a question relating to the extent of defects or completion of incomplete works. Experts are required to assist in determination of the sum payable for variations and with adjustments to the Contract Sum, including claims for sums based on a claim on Quantum Meruit basis.

Other examples include damage claims against the Owners Corporation if it is alleged that the Owners Corporation failed to maintain the common property, resulting in a claim for damages or for example, a claim against an Owners Corporation by a Lot Owner or Lot Owner for damages against another Lot Owner, who has undertaken work within their unit.  This is often regulated pursuant to a By-law, by which the Lot Owner has indemnified others in respect of damages, as a result of failure of those works undertaken by the Lot Owner.

In the updated NCAT Procedural Directions 11 September 2024 relating to Expert Conduct and requirements, there are some significant changes relating to Expert evidence from the previous Procedural Direction dated 28 February 2018. 

The new Procedural Direction applies in relation to those matters which are referred to in the Procedural Direction, one of which is:

(b)        Proceedings or proposed proceedings in the Consumer and Commercial Division involving claims under the Home Building Act 1989 (NSW) where the amount claimed or in dispute is more than $30,000.

We refer to our article 21 February 2018 and note that disputes at NCAT in relation to the construction of residential building work often involves the Home Building Act 1989.

In the case of Dasreef Pty Limited v Hawchar [2011] HCA21, the High Court of Australia noted that the Expert providing the evidence will have to consider “observed” facts namely, those factual matters observed by the Expert or other facts, relied upon which are “assumed” or “accepted” facts.

In any event, each of the “observed” facts must be identified and proved by the Expert in the Expert’s evidence.  So far as the Expert opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way.

The High Court of Australia in the case of Dasreef at paragraph 133 of the Judgment, considered the Decision of Justice Heydon, as he was then, in the Makita case in the NSW Court of Appeal, said at paragraph 133:

[133]    In short, the utility of receiving expert opinions rests on what the trier of fact can make of them.  If the assumed facts are not stated, no reasoning process can be stated and the opinion will lack utility; if there is no evidence, called or to be called, capable of supporting the assumed facts, no reasoning process, even if stated, will have utility; and even if there are facts both assumed and capable of being supported by the evidence, they will lack utility if no reasoning process is stated.  In each instance, a lack of utility results in irrelevance and inadmissibility.

Each of the Dasreef and Makita cases dealt with the admissibility or inadmissibility issue, dealing with a matter in a Court.  However the same analysis by an Expert should apply in cases which are subject to the NCAT Procedural Direction, when an Expert gives evidence relating to his or her Expertise.

The NCAT Members sitting in the Consumer and Commercial Division of NSW Civil and Administrative Tribunal (NCAT) decide the matters based on the evidence.  The assumed facts must be proven by other means (such as Lay Evidence as to his or her observations) and the observed facts by the Expert and the analysis by the Expert.  The Expert should be able to provide evidence in a clear, succinct way in which one can follow the basis of the Expert’s conclusion. 

As it happens in most cases, there is a conflict as between the “opinions” of two Experts of the same specialty.  Often there is a significant discrepancy in the opinion of the two Experts dealing with the same factual matters and sometimes, there is an agreement as to many matters and disagreement about other opinions.

It is critical for you to engage the appropriate Lawyer who can consider the issues and the appropriateness of an Expert.  In this regard, we have briefed Experts in hundreds of cases for in excess of 30 years. 

Watson & Watson Lawyers have extensive experience in all areas of building and construction law including building works within a Strata Building.  Seeking timely advice is vital whether you are a Homeowner or Builder, Owners Corporation, Strata Manager or Owner of a Lot within a Strata Scheme and the earlier you are aware of the issues that you may face, the better they can be addressed.  Please contact Richard Watson, Accredited Specialist, Commercial Litigation in the stream of Building and Construction by contacting his Personal Assistant Shereen Da Gloria to discuss your circumstances. 

Each case will depend upon their own facts and it is critical that one considers the factual matters. The above is not to be taken as legal advice to be relied upon, without first contacting Richard Watson as referred to above.

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