• Any

3. MrWalsh was also ordered to pay the plaintiff's costs.
4. Itwas agreed between the plaintiff and the second defendant that the entry ofjudgment and the assessment of damages would not affectthe proceedings betweenthe plaintiff and the second defendant Milano Investments Pty Limited whichproceedings have been set downfor hearing later this year.
5. Thehearing of the assessment of damages was, in mid December last year, fixed forhearing today.
6. Insupport of its case the plaintiff relies on the reports of three experts: MrHamilton of Landley Consulting Group, Mr Murrow ofAE and D and Mr Heymann ofHeymann-Cohen Quantity Surveyors. Their reports are contained in exhibits D1 orD2.
7. Theplaintiff also relies on two affidavits of Mr Kritharas, one of 13 May 2013 andone of 23 February 2013 which are now exhibitA and exhibitB.
8. MrWalsh appeared today in person to resist the plaintiff's claim.
9. Accordingto the affidavits of Mr Kritharas, Mr Walsh was served with Mr Hamilton’sand Mr Murrow’s reports in 2012. MrHeymann’s first report of 19February 2013 was exhibited to Mr Kritharas’s affidavit of 15 May 2013 andMr Heymann’srevised report of December 2013 was served in February 2014(see para 11 of Mr Kritharas’s affidavit of 23 February 2015).Mr Walshwas informed in June 2013 that his defence had been struck out and that judgmenthad been entered against him with damagesto be assessed. There is also evidencethat Mr Kritharas visited Mr Walsh in February 2014 to discuss the consequenceof Sackar J’sdecision: see para 9 of Mr Kritharas’s affidavit of 23February 2015 and BK 15 Tab 3.
10. Itappears that Mr Walsh did not attend Court when today’s matter was fixedfor hearing but he was informed by letter of 17February that the matter will beproceeding today. Yesterday, Mr Walsh sent an e-mail advising that he would beattending today andthat he required the plaintiff's experts to attend forcross-examine (see exhibit E).
11. Theplaintiff did ensure, consequent upon Mr Walsh’s communication, that theirthree experts were available for cross-examinationtoday and Mr Walshcross-examined each of these three experts.
12. Muchof Mr Walsh's cross-examination seemed to be directed to matters that involved amisunderstanding on his part of the task whichthe Court was required toundertake today; that is, to assess what rectification work would reasonably berequired to repair thedefects for which, by the judgment entered in June, MrWalsh has been found liable and what the work to repair those defects wouldbeestimated to cost: seeBelgrove v Eldrige[1954] HCA 36;(1954) 90 CLR 613 atpage 617 to 618.
13. Severalof Mr Walsh's questions could be said to be directed to the first question buthis cross-examination did nothing to undermineMr Murrow's assessment of whatwork was required to make the building comply with the Building Code ofAustralia’s fire safetyprovisions and Mr Hamilton's assessment of thework required to ensure the building complied with the BCA’s otherprovisions.No questions were directed to Mr Heymann concerning his estimationof costs of the work identified by Mr Murrow and Mr Hamilton.
14. Thereports of Mr Hamilton, Mr Murrow and Mr Heymann are very detailed andcomprehensive. I am satisfied that they have been preparedwith the objectivitydemanded of experts by the code contained in schedule 7 and specified in UCPRRule 31.23; which code was acknowledgedby each of the experts.
15. Iam satisfied that these reports establish what work is required on the buildingto rectify the many defects which are documentedand the costs to repair thosedefects.
16. Iam satisfied from exhibit C that the plaintiff is the owner of the commonproperty although having regard to the fact that judgmentwas entered in itsfavour I think that probably was not a matter necessary to be proved today.
17. MrWalsh did raise one matter which is relevant to the enquiry which the Court isnow required to undertake. That is that some ofthe defects which have beenidentified by the experts are defects wholly within the lots of owners andtherefore cannot be subjectof claim by the Owners Corporation.
18. MrHicks responded to this concern by accepting that the Owners Corporation cannotclaim for work that is attributable to defectsthat are wholly within particularunits. He identified and read out specific items namely item 11 point 4 at page67, item 6 point4 at page 41, item 9 point 3 at page 52 and item 14 point 4 atpage 88 and item 14 point 5 at page 89 of Mr Hamilton's report asbeing matterswhich he accepted could not be the subject of the claim. The total, hesubmitted, of those deductions was $7,907. 40.This amount was to be deductedfrom the estimate of Mr Heymann of $2.9 million without GST.
19. MrHicks contended that defects within the units that were as a result of defectsextant in the common property and hence for whichthe Owners Corporation wouldbe liable were properly the subject of a claim by the Owners Corporation sincethe lot owners wouldbe entitled to claim recompense from the Owners Corporationfor such damage to the lots. An example of this situation is found inOwners Corporation SP35042 v Seiwa Australia Pty Limited(2007)NSWCA 272. Mr Walsh did not dispute that this was so.
20. MrHicks quite properly also conceded that, in the light of the Court of Appeal'sdecision inGagner Pty Ltd t/as Indochine Cafe v Canturi Corp PtyLtd[2009]NSWCA 413(16 December 2009) and the fact that the plaintiff is registered for GSTpurposes, the plaintiff could not recover GST. With thosetwo alterations, theplaintiff's claim is reduced to $2,955,713.60.
21. MrWalsh did not dispute that delineation of items which needed to be removedbecause they were the defects internal to the lot. Hedid not dispute themathematical calculation advanced by Mr Hicks to which I have justreferred.
22. MrWalsh has neither by his cross-examination or by any submissions pointed to anyreason why I should not accept the plaintiff'srevised figure of $2.9 millionbased on the expert evidence which the plaintiff has presented as being ameasure of damage arisingout of the defects.
23. Accordingly,judgment should be entered against the first defendant, Mr Walsh, in the amountof $2,955,713.60.
24. Itis appropriate that the costs should follow the event. I order Mr Walsh to pay,in addition to the costs order made previouslyin the proceedings, for him topay the costs incurred by the plaintiff in this assessment of damages. Thosecosts are to be as agreedor assessed.

Amendments

08 May 2015 - Correction of file number