Arida v Arida [2018] NSWSC 1416

Arida v Arida [2018] NSWSC 1416

The application was rejected because the plaintiff had failed to comply with the UCPR and Practice Note requirements for expert evidence, gave no real explanation for that failure, and the proposed report was of little utility in light of the pleaded issues. The report addressed whether Mr Halligan determined market value on a going concern basis but did so on unexpressed assumptions about the information required under the Heads of Agreement, a matter of contractual construction not for the expert. Allowing reliance on the report would likely require defendants' expert evidence, causing unnecessary delay and costs, without being productive or reasonably required to resolve the pleaded...

Jurisdiction
Australia
Judgment Date
20 September 2018
Procedural Posture
Equity Proceedings Concerning Heads of Agreement and Business Valuations / Plaintiff's Application for Leave to Rely on Expert Evidence Notwithstanding Non Compliance With Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 (nsw) and Practice Note No. SC EQ 5
Outcome
Plaintiff's application for leave to rely on Ms Julie Planinic's expert evidence was rejected; plaintiff ordered to pay defendants' costs of the application.
Legal Topics
['expert Evidence' 'leave to Rely on Expert Report' 'non Compliance With UCPR and Practice Note' 'court Control of Expert Evidence' 'contractual Valuation Under Heads of Agreement']
['evidence' 'civil Procedure' 'equity' 'contract'] ['expert Evidence' 'leave to Rely on Expert Report' 'non Compliance With UCPR and Practice Note' 'court Control of Expert Evidence' 'contractual Valuation Under Heads of Agreement']

Case Brief

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Procedural Posture

Equity Proceedings Concerning Heads of Agreement and Business Valuations / Plaintiff's Application for Leave to Rely on Expert Evidence Notwithstanding Non Compliance With Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 (nsw) and Practice Note No. SC EQ 5

Legal Issues

  1. 1 ["Whether the Court should excuse the plaintiff's non-compliance with Part 31 Division 2 of the Uniform Civil Procedure Rules 2005 (NSW) and Practice Note No. SC EQ 5." "Whether the plaintiff should have leave to rely on the expert report of Ms Julie Planinic concerning the adequacy of Mr Halligan's valuation." 'Whether the proposed expert report was sufficiently connected to the pleaded issues concerning clauses 7 and 10 of the Heads of Agreement and the information or documentation required to be provided to the valuer.' 'Whether allowing reliance on the report would cause unnecessary delay and costs and disadvantage the defendants.']

Ratio Decidendi

The application was rejected because the plaintiff had failed to comply with the UCPR and Practice Note requirements for expert evidence, gave no real explanation for that failure, and the proposed report was of little utility in light of the pleaded issues. The report addressed whether Mr Halligan determined market value on a going concern basis but did so on unexpressed assumptions about the information required under the Heads of Agreement, a matter of contractual construction not for the expert. Allowing reliance on the report would likely require defendants' expert evidence, causing unnecessary delay and costs, without being productive or reasonably required to resolve the pleaded...

Court Disposition

Plaintiff's application for leave to rely on Ms Julie Planinic's expert evidence was rejected; plaintiff ordered to pay defendants' costs of the application.

Orders

  • ["The plaintiff's application for leave to rely upon the expert evidence of Ms Julie Planinic in the form of her affidavit sworn 11 July 2018 is rejected." "The plaintiff is ordered to pay the defendants' cost of the application."]