Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1250

Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1250

The tender was rejected because the material needed to cure defects in Mr Martin's valuation evidence was not served until 6pm the previous day, opposing counsel could not be expected to be ready to cross-examine properly after reviewing the new material, and the complex trial could not be delayed beyond the day set for oral submissions and reservation of judgment.

Jurisdiction
Australia
Judgment Date
21 November 2008
Procedural Posture
Procedural and Other Ruling in Equity Division Proceedings / Further Application to Tender Valuation Evidence
Outcome
Tender rejected.
Legal Topics
['admissibility and Relevancy' 'expert Opinion Evidence' 'valuation Evidence' 'expert Witness Code of Conduct' 'late Tender of Evidence']
['evidence' 'civil Procedure'] ['admissibility and Relevancy' 'expert Opinion Evidence' 'valuation Evidence' 'expert Witness Code of Conduct' 'late Tender of Evidence']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Equity Division Proceedings / Further Application to Tender Valuation Evidence

Legal Issues

  1. 1 ['Whether the first defendant in SC 5533/06 should be permitted to tender Mr Martin\'s affidavit sworn 1 October 2008 and the August 2006 valuation as to the value of the subject property in an "as was" condition.' 'Whether very late material served to cure earlier defects in expert valuation evidence should be admitted when opposing counsel could not be ready to cross-examine and the trial could not be further delayed.']

Ratio Decidendi

The tender was rejected because the material needed to cure defects in Mr Martin's valuation evidence was not served until 6pm the previous day, opposing counsel could not be expected to be ready to cross-examine properly after reviewing the new material, and the complex trial could not be delayed beyond the day set for oral submissions and reservation of judgment.

Court Disposition

Tender rejected.

Orders

  • ["The tender of Mr Martin's affidavit of 1 October 2008 was again rejected." 'The tender of the August 2006 valuation was again rejected.']