Blacktown City Council v Allen Jack + Cottier Architects Pty Ltd

[2026] NSWSC 88

Supreme Court of NSW

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Interrogate

Catchwords

1. CIVIL PROCEDURE — r 23.8 Uniform Civil Procedure Rules (NSW) — s 169 Evidence Act 1995 (NSW) — principles at [29]-[37] — application by cross-defendant to undertake invasive testing on plaintiff’s tennis courts — whether application should be refused given prospect that trial may be imperilled — application granted.

Quick Take

The Court granted orders under UCPR r 23.8 permitting a cross-defendant engineer to undertake invasive testing of tennis courts owned by the plaintiff council, finding that the testing was necessary for the proper determination of causation issues on the cross-claim. The Court held that s 169 of the Evidence Act 1995 (NSW) did not provide sufficient relief because its purpose is to permit a party to challenge evidence sought to be tendered against it, not to obtain new evidence of a different kind. The Court declined to find that the engineer had made a forensic decision to delay the testing, accepting the procedural history showed the engineer had pursued the issue from the outset through various means.