Camellia Properties v Wesfarmers General Insurance [2013] NSWSC 1093

Camellia Properties v Wesfarmers General Insurance [2013] NSWSC 1093

Leave was refused because the report was served grossly out of time, the defendant should reasonably have terminated Mr Zakos' retainer and instructed another expert by no later than the end of March 2013, and allowing reliance on Mr Roberts' report so close to trial and after substantial progress in expert...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
02 August 2013
Procedural Posture
Application for Leave to Rely on an Expert Report Served Out of Time / Procedural Ruling on Defendant's Notice of Motion Filed on 24 July 2013 Before Allocated Hearing
Outcome
Leave refused to the defendant to rely on the expert report served out of time.
Legal Topics
['expert Evidence' 'late Service of Expert Report' 'leave to Rely on Expert Report' 'costs' 'notional Reinstatement Under Insurance Policy']
['practice and Procedure' 'insurance'] ['expert Evidence' 'late Service of Expert Report' 'leave to Rely on Expert Report' 'costs' 'notional Reinstatement Under Insurance Policy']

Source-derived case record

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Procedural Posture

Application for Leave to Rely on an Expert Report Served Out of Time / Procedural Ruling on Defendant's Notice of Motion Filed on 24 July 2013 Before Allocated Hearing

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to rely on an expert report by Mr Roberts that was produced and served grossly out of time.' 'Whether permitting reliance on the late expert report would cause injustice to the plaintiffs given the advanced state of expert conclaves and the imminent hearing.' 'Whether refusing leave would cause injustice to the defendant because the report addressed important issues concerning notional reinstatement.']

Ratio Decidendi

Leave was refused because the report was served grossly out of time, the defendant should reasonably have terminated Mr Zakos' retainer and instructed another expert by no later than the end of March 2013, and allowing reliance on Mr Roberts' report so close to trial and after substantial progress in expert conclaves would create a very significant injustice to the plaintiffs that outweighed the injustice to the defendant.

Court Disposition

Leave refused to the defendant to rely on the expert report served out of time.

Orders

  • ["The defendant is refused leave to rely on Mr Roberts' report." "The defendant is to pay the plaintiff's costs of the defendant's notice of motion filed on 24 July 2013." 'Leave is reserved to the defendant to move on notice for a third party costs order.' 'The exhibits on the motion should be handed out.']