By: Rosemary Johnston- Wednesday, January 29, 2014
When leaks and cracks appear the first inclination of a diligent owners corporation is to engage a building expert to do a report. “Let’s find out exactly what’s wrong, then we’ll work out who pays.” This is understandable but unless you follow the legal rules of engagement for the expert report, it will be useless and worst still, may inadvertently damage your legal case.
From his 12 plus years as an expert in the field of building and construction law, Chris Kerin, Partner at TEYS Lawyers, gives us his top 5 tips on how to engage an expert to help win a case if it is ultimately necessary to flex your legal muscles –
1 The expert must have the right qualifications and experience to be recognized by the courts as a true expert in the field. As Chris points out;
“ A experienced plumber might be right to fix a problem, but a hydraulic engineer will be better value for money for an initial report because their advice can be used later if the case doesn’t settle.”
2 To win a defects case not only must the report be issued by a true expert but the expert must be independent. To be accepted by a judge, an expert must observe his or her paramount duty to the Court.
So when experts, with the best will in the world, overstep the mark and start negotiating with builders and developers for their clients, their evidence can be ruled inadmissible. Sometimes what owners corporations really need is someone with the technical skills and building industry smarts to assist in negotiations and someone else to give the expert opinion to persuade the other side to settle quickly because they know they are being set up for a loss in court.
3 Following on from the rule about independence, Chris says that parties must be aware of the difference between expert assistance and expert evidence. By this he means that not everything an expert produces can be relied upon in court, only expert evidence. He points to a Federal Court case where this recently happened.
In Evans Deakin Pty Ltd v Sebel Furniture Ltd (2003) FCA 171 a ruling had to be made on the report of a chartered accountant. The Judge found the report to be too argumentative of the client’s case, full of assertions, submissions and arguments and “precious few accounting opinions.” He rejected the whole report. Commenting on the case Kerin says, “The problem with this type of result is that the ruling is not made until it’s too late – if your experts are rejected at trial you lose the case because the Judge has nothing else to go on”.
4The Courts have published a Code of Conduct for expert witnesses to help maintain independence and standards. If your expert is not briefed with the right Code of Conduct the report will be discredited or even ignored.
Chris highlights the case of Commonwealth Development Bank of Australia Pty Ltd v Cassegrain (2002) NSWSC 1314, where the party wanting to rely on the report of an expert who had not been briefed with the code of conduct when engaged, tried to fix the problem by getting the witness to read and agree to the code retrospectively. The Judge ruled that was not good enough.
“His Honor rejected the evidence because the evidence was tainted by the expert not having been briefed with the code of conduct at, or close to the time of engagement.” Chris said.
5 Only expert reports that are expressly prepared for legal advice remain confidential under the rules of legal professional privilege.
Chris says this means if an owners corporation engages with an expert without a solicitor being involved, then all the paper work, notes of discussions and even draft reports that might mention weaknesses of the case and incriminating evidence may have to be made available to the other side before the matter gets to court.
“In football speak, this is the equivalent of an ‘own goal’” says Kerin.
Chris Kerin leads the National Strata Building Defects team at TEYS Lawyers. He has a Bachelor of Surveying and a Masters of Laws from the University of New South Wales where he majored in Building and Construction Law. He is a member of the Editorial Board of the Australian Construction Law Newsletter and has written for the Building and Construction Law Journal. You can ask Chris a question by emailing chris@teyslawyers.com.au or visit their website at http://www.teyslawyers.com.au