The Owners Strata Plan 99170 v MN Builders Pty Ltd NSWSC 1190 is a court case that deals with an application to postpone a trial that was set to begin in seven weeks. The main issue was that the plaintiff, The Owners Strata Plan 99170, had served a substantial amount of new evidence related to building defects and the cost of fixing them. The defendants, MN Builders Pty Ltd and others, argued they wouldn’t have enough time to properly respond to this new information before the trial, especially since some of their experts wouldn’t be able to provide their reports until after the trial was supposed to start. The court had to decide whether to adjourn the trial, considering the principles of justice and case management. Ultimately, the judge decided to vacate the trial and reschedule it for a later date, acknowledging that it wouldn’t be fair or achievable to expect the defendants to prepare for trial with such late-served evidence. The plaintiff was ordered to pay the defendants’ costs for the application and the costs thrown away due to the vacation of the trial.
Detailed List
* **Case Name:** The Owners Strata Plan 99170 v MN Builders Pty Ltd
* **Case Number:** 2021/335374
* **Court:** Supreme Court of New South Wales, Equity Technology and Construction List
* **Date of Decision:** 10 October 2025
* **Judge:** Rees J
* **Plaintiff:** The Owners – Strata Plan No 99170
* **Defendants:** MN Builders Pty Ltd (First Defendant), Coronation (26 Shepherd St) Pty Ltd (Second Defendant), Coronation (28 Shepherd St) Pty Ltd (Third Defendant)
* **Background:** The case involves claims for damages related to building defects in an 83-apartment development. The quantum of damages sought was approximately $27 million.
* **Procedural History:** The proceedings began over four years prior in the NSW Civil and Administrative Tribunal and were transferred to the Supreme Court in December 2021.
* **Key Events:**
* Plaintiff’s liability evidence was due by 30 September 2022, with extensions granted. It appears to have been completed by July 2023.
* Joint expert reports on various defects were completed by October 2024.
* On 8 November 2024, the plaintiff sought and was granted a trial date for 10 days starting 1 December 2025, despite quantum evidence not being fully prepared.
* Plaintiff served its quantum evidence (1,250 pages) on 8 May 2025. Defendants’ quantum evidence was due 8 August 2025.
* On 28 May 2025, the plaintiff advised that more expert reports on liability were being prepared.
* The first additional liability report was served on 21 July 2025.
* Defendants expressed concerns on 23 July 2025 about the trial date being jeopardised and indicated they wouldn’t serve their quantum evidence until the plaintiff finished serving all its material.
* Plaintiff served further liability reports in August and September 2025.
* Defendants’ quantum evidence was not served by the 8 August 2025 deadline.
* On 3 September 2025, defendants proposed orders to allow them time to respond to new liability reports and serve their quantum evidence, aiming to retain the trial date.
* Plaintiff served two more liability reports on 11 September 2025.
* On 12 September 2025, a consent order was made granting the plaintiff leave to rely on additional liability reports and referring the matter to mediation.
* Mediation on 19 September 2025 was unsuccessful.
* On 30 September 2025, the defendants filed a motion to vacate the trial. They stated one of their experts could not provide a report until late December 2025 and their quantum expert’s ability to respond to new reports was doubtful.
* On the day before the hearing (9 October 2025), the plaintiff served a second quantum report (975 pages).
* **Application:** The defendants applied to vacate the trial date due to the late service of substantial new evidence by the plaintiff.
* **Plaintiff’s Argument:** The plaintiff argued to keep the trial date, suggesting that liability and the scope of rectification could be heard, with quantum being determined later, possibly by a reference. They also argued the defendants’ concerns about responding to new evidence were overstated.
* **Defendants’ Argument:** The defendants contended they needed sufficient time to review and respond to the late-served liability and quantum evidence, stating it was unfair and unachievable to do so within the remaining time before the trial. One of their experts could not provide a report until after the trial was scheduled to end.
* **Outcome:** The Court vacated the trial date scheduled for 1 December 2025.
* **New Trial Date:** The matter was relisted for trial commencing on 22 June 2026, for ten days.
* **Costs:** The plaintiff was ordered to pay the defendants’ costs for the application to vacate the trial and the costs thrown away by the vacation of the hearing.
Simple Summary of the case
This case, The Owners Strata Plan 99170 v MN Builders Pty Ltd, was about a big legal fight over building defects in an apartment block. The owners, represented by The Owners Strata Plan 99170, claimed about $27 million in damages from the builder, MN Builders Pty Ltd, and related companies.
The case had already been going on for years, starting in a tribunal and then moving to the Supreme Court. A trial date was set for December 2025, giving them about seven weeks’ notice. However, just before the trial, the owners (the plaintiff) kept sending a lot of new evidence about the defects and how much it would cost to fix them.
The builder (the defendants) argued that this new evidence was too much and arrived too late for them to properly check it, get their own experts to look at it, and prepare their defence before the trial was due to start. One of their experts, they said, wouldn’t even be able to get their report done until after the trial was supposed to have finished. They also pointed out that the plaintiff’s own quantum evidence (the cost of repairs) was massive, and they had just received a second large report on it the day before the hearing.
The owners tried to argue that they should still have the trial, maybe by dealing with the basic liability and scope of work first and sorting out the exact costs later. But the judge, Rees J, agreed with the defendants. The judge felt it wouldn’t be fair to make the defendants try and prepare for a trial under such pressure, especially when the new evidence took the plaintiff months to compile. It was just too much to ask of the defendants in the short time available.
So, the judge decided to cancel the trial that was scheduled for December 2025. Instead, the case was rescheduled for a new trial starting on 22 June 2026. Because the plaintiff caused the delay by serving the late evidence, they were ordered to pay the defendants’ legal costs for the application to postpone the trial and for the costs that were wasted because the trial had to be cancelled.
Q&A
* Is it legal to serve new evidence close to a trial date?
Generally, it is legal to serve new evidence, but courts expect parties to serve evidence in a timely manner according to court rules and directions. Serving substantial new evidence very close to a trial date can lead to the court adjourning or vacating the trial, as seen in this case.
* What happens if a party serves late evidence?
If a party serves late evidence, the other party can object. The court will consider the timing, the nature of the evidence, and whether the other party can reasonably respond to it. The court might grant an adjournment, allow the evidence with conditions, or disallow it, depending on the circumstances.
* Can a trial date be changed at the last minute?
Yes, trial dates can be changed (adjourned or vacated) if there are valid reasons, such as the late service of crucial evidence that prevents a fair trial. However, courts are reluctant to do so due to the disruption it causes to the court’s schedule and other litigants.
* What are the consequences of vacating a trial?
When a trial is vacated, the hearing is cancelled, and a new date is set. The party responsible for the delay may be ordered to pay the other party’s costs associated with the application to vacate and the wasted costs of preparing for the original trial date.
* What is considered “substantial evidence”?
Substantial evidence refers to evidence that is significant to the case, potentially changing its direction or significantly impacting the arguments of either party. In this case, new expert reports on liability and large quantum reports were considered substantial.
* What are “building defects”?
Building defects are flaws or imperfections in the construction or materials of a building that can affect its appearance, usability, or structural integrity. This can include issues like waterproofing problems, structural weaknesses, or faulty mechanical systems.
* What is a “quantum” in legal terms?
Quantum refers to the amount or extent of loss or damage suffered, typically in a claim for damages. In this case, it refers to the estimated cost of rectifying the building defects.
* What is a “reference” in a legal context?
A reference is a process where a court directs a specific issue, often involving complex calculations or valuations (like quantum of damages), to be heard and determined by a person appointed by the court, such as an expert or a referee.
* What are the principles of case management in courts?
Case management principles, guided by the Civil Procedure Act, require courts to act in accordance with the “dictates of justice.” This involves dealing with cases efficiently, fairly, and at a reasonable cost, while promoting the just resolution of disputes.
* Is it always fair to make the party causing delay pay costs?
Generally, the court has discretion regarding costs. However, if a party’s actions (like serving late evidence) cause significant delay and disruption, it is common for that party to be ordered to pay the costs incurred by the other party due to that delay.
* What is an “ex tempore” judgment?
An ex tempore judgment is a judgment delivered by the judge immediately after the hearing, without prior written preparation. It is often delivered orally and then transcribed.
* What does it mean for a trial to be “vacated”?
Vacated means cancelled. So, the trial that was scheduled to start on December 1, 2025, was cancelled.
* What is a “joint expert report”?
A joint expert report is prepared by experts from opposing sides who meet to discuss their differing opinions, narrow down the issues, and produce a single report outlining areas of agreement and disagreement.
* Can a party be forced to go to trial without adequate preparation?
No, courts aim for a fair trial. If a party can demonstrate they cannot adequately present their case due to circumstances beyond their control or unfair timing, the court may grant an adjournment or vacate the trial.
* What is the role of the Civil Procedure Act?
The Civil Procedure Act 2005 (NSW) sets out the rules and principles governing court procedures, including powers related to adjourning proceedings, ensuring the court acts in the dictates of justice, and principles of case management.
* Where can I find more simplified NSW Supreme Court cases?
You can find more simplified NSW Supreme Court cases on [https://medigosa.com/category/nsw-supreme-court-cases/](https://medigosa.com/category/nsw-supreme-court-cases/).