Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1201

Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1201

The August 2006 valuation report annexed to Mr Martin's affidavit did not comply with r 31.27 of the UCPR, as it failed to state the facts and assumptions underlying the expert opinion, and was not the subject of proper instructions or compliance with the expert code of conduct. There was no sufficient reason to dispense with these requirements, and the party seeking to tender the report had had ample opportunity to regularise compliance but had not done so. The report was therefore inadmissible.

Parties
Plaintiff (5533/06), Defendant (5049/07): Lym International Pty Limited; Plaintiff (5533/06): Limin Yang; Plaintiff (5533/06): Yang Liu; Defendant (5533/06), Defendant (5049/07): Yu Po Chen; Defendant (5533/06): Westpac Banking Corporation; Plaintiff (5049/07): Leonilda Marcolongo
Jurisdiction
Australia
Judgment Date
11 November 2008
Procedural Posture
Equity Proceedings (joined Matters: 5533/06 and 5049/07) / Procedural/evidentiary Ruling During Trial
Outcome
Valuation report and supporting affidavit rejected.
Legal Topics
Admissibility of Expert Evidence, Expert Opinion, Compliance With Expert Witness Code of Conduct
Civil Procedure Evidence Admissibility of Expert Evidence Expert Opinion Compliance With Expert Witness Code of Conduct

Case Brief

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Parties

Lym International Pty Limited

Plaintiff (5533/06), Defendant (5049/07)

Limin Yang

Plaintiff (5533/06)

Yang Liu

Plaintiff (5533/06)

Yu Po Chen

Defendant (5533/06), Defendant (5049/07)

Westpac Banking Corporation

Defendant (5533/06)

Leonilda Marcolongo

Plaintiff (5049/07)

Procedural Posture

Equity Proceedings (joined Matters: 5533/06 and 5049/07) / Procedural/evidentiary Ruling During Trial

Legal Issues

  1. 1 Whether the August 2006 valuation report and affidavit of Mr Martin should be admitted as expert evidence under Part 31 of the Uniform Civil Procedure Rules 2005

Ratio Decidendi

The August 2006 valuation report annexed to Mr Martin's affidavit did not comply with r 31.27 of the UCPR, as it failed to state the facts and assumptions underlying the expert opinion, and was not the subject of proper instructions or compliance with the expert code of conduct. There was no sufficient reason to dispense with these requirements, and the party seeking to tender the report had had ample opportunity to regularise compliance but had not done so. The report was therefore inadmissible.

Court Disposition

Valuation report and supporting affidavit rejected.

Orders

  • Refused to allow the reading of Mr Martin's affidavit of 1 October 2008.
  • Rejected the tender of the August 2006 valuation annexed to that affidavit.