Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440

Commonwealth Bank v Iinvest (No 7) [2017] NSWSC 440

Leave to read Mr Ivey's affidavit and expert report was refused because the applicants did not establish exceptional circumstances under r 31.28(4). Although Mr Storie and Mr King acted with appropriate celerity after becoming involved and there was no real prejudice given the adjournment, a change of legal advisers and a fresh view of how to present the case were not exceptional. The report also largely depended on property valuation, a field for registered valuers, so Mr Ivey's opinions were not shown to be wholly or substantially based on his specialised knowledge as a chartered accountant and agricultural consultant.

Jurisdiction
Australia
Judgment Date
07 February 2017
Procedural Posture
Procedural and Other Ruling / Application for Leave to Read an Affidavit Annexing an Expert Report After a Guillotine Order
Outcome
The affidavit of Mr Ivey sworn on 19 January 2017 was rejected.
Legal Topics
['expert Evidence' 'leave to Rely on Late Expert Report' 'exceptional Circumstances' 'guillotine Order' 'specialised Knowledge']
['civil Procedure' 'evidence'] ['expert Evidence' 'leave to Rely on Late Expert Report' 'exceptional Circumstances' 'guillotine Order' 'specialised Knowledge']

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Procedural Posture

Procedural and Other Ruling / Application for Leave to Read an Affidavit Annexing an Expert Report After a Guillotine Order

Legal Issues

  1. 1 ['Whether leave should be granted to read the affidavit of Richard Victor Ivey sworn on 19 January 2017 annexing his expert report dated 12 January 2017.' 'Whether exceptional circumstances existed under Uniform Civil Procedure Rules 2005 (NSW) r 31.28(4) to warrant leave for the late expert report.' "Whether the opinions in Mr Ivey's report were wholly or substantially based upon his branch of specialised knowledge."]

Ratio Decidendi

Leave to read Mr Ivey's affidavit and expert report was refused because the applicants did not establish exceptional circumstances under r 31.28(4). Although Mr Storie and Mr King acted with appropriate celerity after becoming involved and there was no real prejudice given the adjournment, a change of legal advisers and a fresh view of how to present the case were not exceptional. The report also largely depended on property valuation, a field for registered valuers, so Mr Ivey's opinions were not shown to be wholly or substantially based on his specialised knowledge as a chartered accountant and agricultural consultant.

Court Disposition

The affidavit of Mr Ivey sworn on 19 January 2017 was rejected.

Orders

  • ['The affidavit of Mr Ivey sworn on 19 January 2017 is rejected.' 'The affidavit may be marked for identification and returned to Mr King.']