Diab v Cavasinni (No 2) [2020] NSWLEC 32

Diab v Cavasinni (No 2) [2020] NSWLEC 32

Leave to adduce the late expert report was refused because the issue of excavation was always in dispute, opportunity existed earlier to obtain such evidence, the report would not be significantly probative (being based on a walk-over years after the works), and the delay was not adequately explained. No significant prejudice would occur to the respondents from refusal as they had previously marshalled evidence on this issue.

Parties
Applicant: Dolly Diab; First Respondent: Maria Cavasinni; Second Respondent: Francesco Cavasinni; Third Respondent: Cavcorp Australia Pty Limited
Jurisdiction
Australia
Judgment Date
17 April 2020
Procedural Posture
Notice of Motion in Class 4 Civil Enforcement Proceedings / Interlocutory Application—whether Leave Should Be Granted to Adduce Expert Evidence
Outcome
Respondents' notice of motion to adduce expert evidence dismissed; costs reserved.
Legal Topics
Practice and Procedure, Expert Evidence, Notice of Motion, Leave to Adduce Evidence, Environmental Planning and Assessment Act 1979 (nsw) S 4.55
Environment and Planning Law Civil Procedure Practice and Procedure Expert Evidence Notice of Motion Leave to Adduce Evidence Environmental Planning and Assessment Act 1979 (nsw) S 4.55

Case Brief

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Parties

Dolly Diab

Applicant

Maria Cavasinni

First Respondent

Francesco Cavasinni

Second Respondent

Cavcorp Australia Pty Limited

Third Respondent

Procedural Posture

Notice of Motion in Class 4 Civil Enforcement Proceedings / Interlocutory Application—whether Leave Should Be Granted to Adduce Expert Evidence

Legal Issues

  1. 1 Whether leave should be granted to respondents to adduce further expert evidence (geotechnical report) late in the proceeding regarding excavation works
  2. 2 Whether the late report would cause prejudice or lacks probative value

Ratio Decidendi

Leave to adduce the late expert report was refused because the issue of excavation was always in dispute, opportunity existed earlier to obtain such evidence, the report would not be significantly probative (being based on a walk-over years after the works), and the delay was not adequately explained. No significant prejudice would occur to the respondents from refusal as they had previously marshalled evidence on this issue.

Court Disposition

Respondents' notice of motion to adduce expert evidence dismissed; costs reserved.

Orders

  • The notice of motion dated 16 April 2020 is dismissed.
  • Costs are reserved.