Metropolitan Petar v Mitreski [2010] NSWSC 1185

Metropolitan Petar v Mitreski [2010] NSWSC 1185

The affidavits were marginally relevant to the alternative application for removal of the sixth defendant as trustee, and were not excluded merely for non-compliance with the expert witness code of conduct because the evidence could be treated as views formed by an officer or member of the sixth defendant's executive council. However, the cost estimates lacked sufficient disclosed basis to be treated as expert estimates. They were admissible only on the limited basis that they evidenced an impression formed by a member of the executive committee, who happened to be a builder, about the likely costs of works, and not as evidence of the reasonableness of those costs.

Jurisdiction
Australia
Judgment Date
18 August 2010
Procedural Posture
Procedural and Other Ruling in Equity Division Proceedings / Admissibility Ruling on Defendants' Affidavits
Outcome
Affidavits in question admitted on a limited basis.
Legal Topics
['admissibility and Relevance' 'opinion Evidence' 'expert Opinion' 'expert Witness Code of Conduct' 'makita Standard' 'removal of Trustee']
['evidence' 'equity'] ['admissibility and Relevance' 'opinion Evidence' 'expert Opinion' 'expert Witness Code of Conduct' 'makita Standard' 'removal of Trustee']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Equity Division Proceedings / Admissibility Ruling on Defendants' Affidavits

Legal Issues

  1. 1 ['Whether affidavits of Mr Ilija Acevski estimating costs of rectification works were relevant to remaining issues in the proceedings.' 'Whether the opinion evidence should be excluded for non-compliance with the expert witness code of conduct.' 'Whether the cost estimates satisfied the Makita requirement to expose the basis for the opinion.' 'Whether the affidavits could be admitted on a limited basis as evidence of an impression held by a member of the executive committee.']

Ratio Decidendi

The affidavits were marginally relevant to the alternative application for removal of the sixth defendant as trustee, and were not excluded merely for non-compliance with the expert witness code of conduct because the evidence could be treated as views formed by an officer or member of the sixth defendant's executive council. However, the cost estimates lacked sufficient disclosed basis to be treated as expert estimates. They were admissible only on the limited basis that they evidenced an impression formed by a member of the executive committee, who happened to be a builder, about the likely costs of works, and not as evidence of the reasonableness of those costs.

Court Disposition

Affidavits in question admitted on a limited basis.

Orders

  • ['The two affidavits in question were received only as evidence of an impression formed by a member of the executive committee as to the costs of the works, not as expert estimates or evidence of the reasonableness of those amounts.']