Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506

The affidavit served in 2004 was evidence of contemporary events and not an expert's report within rule 31.18, so the 28 April 2008 document could not merely update an earlier expert's report under rule 31.28(4)(b). The plaintiffs did not show exceptional circumstances under rule 31.28(4)(a), and discretionary considerations, including the closeness of the hearing, the long time available to prepare the case, and prejudice to the defendant from needing further evidence, were against granting leave.

Jurisdiction
Australia
Judgment Date
26 May 2008
Procedural Posture
Procedural and Other Ruling Concerning Adducing Expert Evidence / Plaintiffs' Notice of Motion for Leave to Rely on an Expert Report Served Out of Time Before Trial
Outcome
Leave under rule 31.28(3) refused; plaintiffs' notice of motion dismissed in respect of Mr Glazebrook's report of 28 April 2008.
Legal Topics
['expert Evidence' "service of Experts' Reports" 'exceptional Circumstances' 'development Consent' 'relief Against Forfeiture']
['civil Procedure' 'evidence'] ['expert Evidence' "service of Experts' Reports" 'exceptional Circumstances' 'development Consent' 'relief Against Forfeiture']

Case Brief

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Procedural Posture

Procedural and Other Ruling Concerning Adducing Expert Evidence / Plaintiffs' Notice of Motion for Leave to Rely on an Expert Report Served Out of Time Before Trial

Legal Issues

  1. 1 ["Whether Mr Glazebrook's document dated 28 April 2008 merely updated an earlier expert's report served in accordance with rule 31.28(1) of the Uniform Civil Procedure Rules 2005." "Whether exceptional circumstances warranted leave under rule 31.28(3) to rely on Mr Glazebrook's report of 28 April 2008." 'Whether time should be extended retrospectively to validate service of the report.']

Ratio Decidendi

The affidavit served in 2004 was evidence of contemporary events and not an expert's report within rule 31.18, so the 28 April 2008 document could not merely update an earlier expert's report under rule 31.28(4)(b). The plaintiffs did not show exceptional circumstances under rule 31.28(4)(a), and discretionary considerations, including the closeness of the hearing, the long time available to prepare the case, and prejudice to the defendant from needing further evidence, were against granting leave.

Court Disposition

Leave under rule 31.28(3) refused; plaintiffs' notice of motion dismissed in respect of Mr Glazebrook's report of 28 April 2008.

Orders

  • ["The application for leave under rule 31.28(3) in respect of Mr Glazebrook's report of 28 April 2008 is dismissed." "The other claims in the plaintiffs' notice of motion filed on 13 May 2008 in respect of that report are dismissed."]