Tomko v Tomko [2007] NSWSC 1486

Tomko v Tomko [2007] NSWSC 1486

The defendants’ questions to the single expert were not permissible under UCPR r 31.41 as they did not seek clarification but were in the nature of cross-examination; however, leave was granted to the defendants to adduce expert evidence from Professor Reid on the relevant issues because an arguable basis for challenging the single expert's report was shown.

Parties
Plaintiff/cross Defendant: John Graham Tomko; First Defendant/cross Claimant: Robert Garry Tomko; Second Defendant: Lisa Tomko
Jurisdiction
Australia
Judgment Date
05 December 2007
Procedural Posture
Probate / Interlocutory Application Regarding Expert Evidence
Outcome
Questions disallowed; leave to adduce evidence from another expert granted.
Legal Topics
Expert Evidence, Single Expert, Leave to Adduce Evidence From Another Expert, Clarification of Report
Probate Evidence Expert Evidence Single Expert Leave to Adduce Evidence From Another Expert Clarification of Report

Case Brief

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Parties

John Graham Tomko

Plaintiff/cross Defendant

Robert Garry Tomko

First Defendant/cross Claimant

Lisa Tomko

Second Defendant

Procedural Posture

Probate / Interlocutory Application Regarding Expert Evidence

Legal Issues

  1. 1 Whether the defendants' questions to the parties' single expert are permissible under Uniform Civil Procedure Rules 2005, r 31.41
  2. 2 Whether leave should be granted to adduce evidence from another expert under Uniform Civil Procedure Rules 2005, r 31.44

Ratio Decidendi

The defendants’ questions to the single expert were not permissible under UCPR r 31.41 as they did not seek clarification but were in the nature of cross-examination; however, leave was granted to the defendants to adduce expert evidence from Professor Reid on the relevant issues because an arguable basis for challenging the single expert's report was shown.

Court Disposition

Questions disallowed; leave to adduce evidence from another expert granted.

Orders

  • Dr Roberts is not required to answer the questions contained in the letter dated 16 November 2007 from Ren Zhou, solicitors.
  • Defendants granted leave to adduce expert evidence from Professor Reid regarding capacity of each deceased as at the date of the 2004 wills.