Schmierer v Keong [2005] NSWSC 1081

Schmierer v Keong [2005] NSWSC 1081

The Court granted leave to adduce the defendant's earlier handwriting expert evidence because the circumstances were unusual: the defendant had suddenly lost central expert evidence through the joint report, the examiner gave medically corroborated evidence explaining why he signed a view he did not hold, and the plaintiffs had long been aware of the earlier report and would suffer no relevant prejudice beyond losing the forensic advantage of unanimous expert opinion. The Court also allowed the defence amendments because the added incapacity particulars amplified an existing denial and the s 1318 plea was a permissible alternative plea, not an impermissibly inconsistent, embarrassing or...

Jurisdiction
Australia
Judgment Date
21 October 2005
Procedural Posture
Equity Proceedings Brought Under S 588 G of the Corporations Act 2001 (cth) / Interlocutory Motion Before Trial Seeking Leave to Adduce Expert Evidence Inconsistent With a Joint Experts' Report and Leave to Amend the Defence
Outcome
Defendant granted leave to adduce expert evidence inconsistent with the joint experts' report and granted leave to amend the defence; defendant ordered to pay the plaintiffs' costs of the motion.
Legal Topics
['expert Evidence' "joint Experts' Report" 'leave to Adduce Inconsistent Expert Evidence' 'amendment of Defence' 'insolvent Trading' 'director Status' 'relief From Liability Under S 1318']
['civil Procedure' 'corporations Law' 'evidence'] ['expert Evidence' "joint Experts' Report" 'leave to Adduce Inconsistent Expert Evidence' 'amendment of Defence' 'insolvent Trading' 'director Status' 'relief From Liability Under S 1318']

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Procedural Posture

Equity Proceedings Brought Under S 588 G of the Corporations Act 2001 (cth) / Interlocutory Motion Before Trial Seeking Leave to Adduce Expert Evidence Inconsistent With a Joint Experts' Report and Leave to Amend the Defence

Legal Issues

  1. 1 ["Whether the defendant should be granted leave under r 31.25(7) of the Uniform Civil Procedure Rules 2005 to adduce expert handwriting evidence inconsistent with a matter agreed in a joint experts' report." 'Whether the defendant should be granted leave to amend the defence to add particulars of incapacity and an alternative plea seeking relief under s 1318 of the Corporations Act 2001 if found to be a director.' 'Whether the proposed alternative pleading under s 1318 was impermissibly inconsistent, embarrassing or vexatious.']

Ratio Decidendi

The Court granted leave to adduce the defendant's earlier handwriting expert evidence because the circumstances were unusual: the defendant had suddenly lost central expert evidence through the joint report, the examiner gave medically corroborated evidence explaining why he signed a view he did not hold, and the plaintiffs had long been aware of the earlier report and would suffer no relevant prejudice beyond losing the forensic advantage of unanimous expert opinion. The Court also allowed the defence amendments because the added incapacity particulars amplified an existing denial and the s 1318 plea was a permissible alternative plea, not an impermissibly inconsistent, embarrassing or...

Court Disposition

Defendant granted leave to adduce expert evidence inconsistent with the joint experts' report and granted leave to amend the defence; defendant ordered to pay the plaintiffs' costs of the motion.

Orders

  • ['Leave granted to file in Court the amended notice of motion.' "Order made as sought in prayer 1 of the amended notice of motion, permitting the defendant to adduce expert evidence from the defendant's examiner in the form of his October 2004 report." 'Defendant granted leave to file an amended defence in the form...