Alternative solutions

The plaintiff owners corporation (‘OC’) contended that the ACP cladding was combustible and sought removal and replacement at a cost of over $5 million. One of the issues considered by the Court was whether the cladding was compliant with the Building Code of Australia under an alternative solution.

To prove that an alternative solution was not available at the time, the OC relied on an expert witness who concluded that an alternative solution could not be formulated without further testing and was therefore unavailable. Justice Black did not accept this as, without the further testing, it was unclear whether the cladding could have actually complied with the BCA. His Honour found the OC’s reasoning insufficient, noting that if relevant information is not available, then attempts should be made to obtain it. Justice Black also noted that if an alternative solution was not available at the time, a ‘retrospective formulation’ of an alternative solution may suffice. 

Expert evidence

Black J inferred in several parts of his judgment that much of the expert evidence filed was deficient. It is essential that an expert has a thorough letter of instruction which sets out what they are required to do, the facts and assumptions they are to adopt and a list of the documents they are to rely on. This is necessary to ensure the expert can comply with the relevant expert code of conduct and discharge their obligations to the Court or Tribunal.

Further, while initial testing can represent an upfront and unknown cost, failure to complete all relevant investigations can ultimately compromise a case. We note the Court did not allow the Owners Corporation’s claim as no test was performed for the purposes of AS1530.I to establish that the cladding was combustible. The OC was also ordered to pay the costs of the application.

This case note focuses on the importance of undertaking thorough investigations prior to commencing proceedings and ensuring expert evidence is comprehensive. The identification of an alternative solution may help an owners corporation resolve a problem more quickly and efficiently. 

Further information / assistance regarding the issues raised in this article is available from the authors, Fabienne Loncar, Partner and Christopher Philactides, Senior Associate, or your usual contact at Moray & Agnew.