Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 158

Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 158

The affidavit sworn on 16 January 2009 was not served in accordance with the applicable requirements, did not merely update the earlier affidavits but expanded them by adding material designed to address issues raised by the plaintiff, and the plaintiff's identification of issues or possible inadequacies in earlier affidavits did not constitute exceptional circumstances warranting leave.

Jurisdiction
Australia
Judgment Date
20 January 2009
Procedural Posture
Civil Proceedings / Objection to Tender of Affidavit as Expert's Report in Part Heard Proceedings
Outcome
Leave refused.
Legal Topics
['expert Reports' 'service of Expert Reports' 'admissibility' 'leave' 'exceptional Circumstances']
['civil Procedure' 'evidence'] ['expert Reports' 'service of Expert Reports' 'admissibility' 'leave' 'exceptional Circumstances']

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Procedural Posture

Civil Proceedings / Objection to Tender of Affidavit as Expert's Report in Part Heard Proceedings

Legal Issues

  1. 1 ["Whether the affidavit sworn by Joseph Maric on 16 January 2009 was admissible as an expert's report despite not being served in accordance with the Uniform Civil Procedure Rules 2005." 'Whether the affidavit merely updated an earlier version of a report served in accordance with the Rules.' 'Whether exceptional circumstances warranted granting leave to admit the report.']

Ratio Decidendi

The affidavit sworn on 16 January 2009 was not served in accordance with the applicable requirements, did not merely update the earlier affidavits but expanded them by adding material designed to address issues raised by the plaintiff, and the plaintiff's identification of issues or possible inadequacies in earlier affidavits did not constitute exceptional circumstances warranting leave.

Court Disposition

Leave refused.

Orders

  • ['Refuse leave to relieve the first defendant of the provisions of r 31.28.']