Milicevic & Anor v Ferrari East Pty Limited & Ors [2022] NSWSC 585

Milicevic & Anor v Ferrari East Pty Limited & Ors [2022] NSWSC 585

Leave was granted because Bell #3 addressed important but confined aspects of the plaintiffs' damages calculation, the errors were characterised as inadvertent error and oversight rather than a tactical decision, the application was brought promptly before judgment, the defendants had notice that such an application would be made, the reopened evidence was limited and responsive directions and possible costs orders could mitigate prejudice.

Jurisdiction
Australia
Judgment Date
13 May 2022
Procedural Posture
Application by the Plaintiffs for Leave to Rely Upon a Supplementary Expert Report and Written Closing Submissions Served After Completion of the Hearing / On the Papers; Judgment Reserved But Not Delivered
Outcome
Application allowed; plaintiffs granted leave to re-open their case to tender and rely on Bell #3 and supplementary written submissions.
Legal Topics
['leave to Adduce Further Expert Evidence After Hearing' 'leave to Re Open Case' 'expert Evidence' 'quantification of Damages' 'overriding Purpose']
['practice and Procedure' 'evidence' 'civil Procedure'] ['leave to Adduce Further Expert Evidence After Hearing' 'leave to Re Open Case' 'expert Evidence' 'quantification of Damages' 'overriding Purpose']

Case Brief

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Procedural Posture

Application by the Plaintiffs for Leave to Rely Upon a Supplementary Expert Report and Written Closing Submissions Served After Completion of the Hearing / On the Papers; Judgment Reserved But Not Delivered

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to re-open their case to tender and rely on the supplementary expert report of Alex Bell dated 10 March 2022 and further written closing submissions.' 'Whether the interests of justice favoured allowing further expert evidence after the hearing where the evidence sought to correct errors in the quantification of damages.' 'Whether any prejudice to the defendants from further evidence could be addressed by directions and costs.']

Ratio Decidendi

Leave was granted because Bell #3 addressed important but confined aspects of the plaintiffs' damages calculation, the errors were characterised as inadvertent error and oversight rather than a tactical decision, the application was brought promptly before judgment, the defendants had notice that such an application would be made, the reopened evidence was limited and responsive directions and possible costs orders could mitigate prejudice.

Court Disposition

Application allowed; plaintiffs granted leave to re-open their case to tender and rely on Bell #3 and supplementary written submissions.

Orders

  • ['The plaintiffs be given leave to re-open their case to file and tender the Supplementary Expert Report of Alex Bell of 10 March 2022, which is Annexure B to the Affidavit of Richard Louis Mitry of 18 March 2022.' 'The plaintiffs be given leave to re-open their case to file and rely upon the further written closing...