In the matter of Alora Davies Developments 104 Pty Ltd (in liq) [2024] NSWSC 335

In the matter of Alora Davies Developments 104 Pty Ltd (in liq) [2024] NSWSC 335

UCPR r 31.23 did not apply to Mr McKenna's affidavit because, although he was an expert for the purposes of UCPR r 31.18, he was not an expert "engaged or appointed" by himself to give evidence and therefore was not an "expert witness" as defined. Non-compliance with the Expert Witness Code was not a basis to refuse to read the affidavit.

Jurisdiction
Australia
Judgment Date
22 March 2024
Procedural Posture
Equity Corporations List; Procedural Ruling / Objection to Liquidator's Affidavit Evidence
Outcome
Liquidator's affidavit permitted to be read.
Legal Topics
['expert Witness Code' 'liquidator Evidence' 'expert Witness Definition' 'admissibility of Affidavit Evidence' 'evidence Act 1995 (nsw), S 136 Limitations']
['evidence' 'corporations'] ['expert Witness Code' 'liquidator Evidence' 'expert Witness Definition' 'admissibility of Affidavit Evidence' 'evidence Act 1995 (nsw), S 136 Limitations']

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Procedural Posture

Equity Corporations List; Procedural Ruling / Objection to Liquidator's Affidavit Evidence

Legal Issues

  1. 1 ["Whether the Expert Witness Code in Schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW) applies to a liquidator who is a plaintiff and gives evidence in the liquidator's own case." "Whether Mr McKenna's affidavit should be rejected or excluded for non-compliance with the Expert Witness Code." 'Whether particular paragraphs of the affidavit should be admitted subject to limitations under s 136 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

UCPR r 31.23 did not apply to Mr McKenna's affidavit because, although he was an expert for the purposes of UCPR r 31.18, he was not an expert "engaged or appointed" by himself to give evidence and therefore was not an "expert witness" as defined. Non-compliance with the Expert Witness Code was not a basis to refuse to read the affidavit.

Court Disposition

Liquidator's affidavit permitted to be read.

Orders

  • ["Mr McKenna's affidavit can be read in its entirety." 'Particular paragraphs are admitted subject to limitations under s 136 of the Evidence Act 1995 (NSW).']