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Cahill v Kenna

Cahill v Kenna

Case [2014] NSWSC 1763 10 December 2014

Expert Evidence

Admissibility of Evidence

Negligence

Duty of Care

Misleading and Deceptive Conduct

Civil Litigation & Procedure

Evidence Law

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Supreme Court

New South Wales

Medium Neutral Citation: Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763
Hearing dates: 10/11/2014, 11/11/2014, 12/11/2014, 13/11/2014 and 14/11/2014
Decision date: 10 December 2014
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
In each matter: judgment for defendants with costs.

Catchwords:
EVIDENCE - expert evidence - whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation - whether evidence was unfairly prejudicial - where excluding evidence would effectively determine the issue of substance to which that evidence was directed

EVIDENCE - expert evidence - whether to reject evidence of valuations prepared for non-litigation purposes - where valuations were business records - whether r 31.23 only applies to reports prepared by an "expert witness" - whether court should "otherwise order" - whether evidence would be unfairly prejudicial - where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses - where signatories not involved in preparation of joint expert reports

EVIDENCE - expert evidence - expert valuation of land - whether one expert's evidence to be preferred - where one expert witness briefed with substantially more information - where other expert prepared a "blind" valuation - where expert town planning advice not available to original valuer - where expert town planning advice nevertheless relied upon by one expert witness - where expert town planning advice speculative

NEGLIGENCE - duty of care - whether mediator and valuer owed a common law duty of care to plaintiffs - whether plaintiffs were vulnerable - where valuer did not know the purpose for which the valuation was to be used - whether reliance is sufficient to establish vulnerability - whether plaintiffs could have protected their own interests - whether valuation negligent - whether valued at highest and best use of the site - whether negligent in valuing property without expert town planning advice - whether no valuer acting prudently and reasonably could arrive at the value in the valuation report - whether mediator negligent in instructions to valuer - whether mediator owed parties in dispute a duty of care in instructing valuer - whether mediator breached duty of care - whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer - whether mediator protected from liability as acting in capacity as mediator
MISLEADING AND DECEPTIVE CONDUCT - expert valuation of property - whether value attributed to property was misleading or deceptive - whether direct or indirect reliance on valuation - whether the valuation causative of loss
Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: ABN AMRO Bank NV v Bathurst Regional Council (2014) 309 ALR 445
Brookfield Multiplex Ltd v Owners Corp Strata Plan 61288 (2014) 313 ALR 408
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
Digi-Tech (Australia) Ltd v Brand (2004) 62 IPR 184
Dubbo Base Hospital…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cahill v Kenna

Details

AGLC: Cahill v Kenna [2014] NSWSC 1763
Case: [2014] NSWSC 1763
Decision Date: 10 December 2014

CaseChat Overview and Summary

The case of Cahill v Kenna involves a complex dispute concerning the valuation of property, expert evidence, and alleged negligence and misleading or deceptive conduct. The plaintiffs, Cahill, sought damages against the defendants, Kenna, over the valuation of a property. The matter was heard in the Supreme Court of New South Wales, where the plaintiffs alleged that the defendants negligently valued the property and engaged in misleading and deceptive conduct during the valuation process.

The legal issues before the court included the admissibility of expert evidence, particularly whether the court should exclude evidence that was prepared on a basis inconsistent with the impugned valuation. The court also had to consider whether such exclusion would unfairly prejudice the parties, especially where the evidence was crucial to the substantive issue at hand. Additionally, the court needed to determine whether evidence prepared for non-litigation purposes, such as business records, could be admitted, and whether such evidence would be unfairly prejudicial if certain conditions were not met.

The court ruled that while the evidence of one expert, who had been briefed with substantially more information, should be preferred, the evidence prepared on a basis inconsistent with the impugned valuation was not to be rejected outright. The court found that the evidence was not unfairly prejudicial, and excluding it would not effectively determine the issue of substance to which it was directed. The court also held that the mediators and the valuer did not owe a duty of care to the plaintiffs, as the plaintiffs were not vulnerable, and the valuer was not aware of the purpose for which the valuation was to be used. Furthermore, the court determined that the valuation was not misleading or deceptive, as the plaintiffs did not directly or indirectly rely on it, and it was not causative of their loss.

The final orders of the court were that the defendants were not liable to the plaintiffs for negligence, misleading or deceptive conduct, or breach of any other cause of action. The court dismissed the plaintiffs' claims in their entirety.

Orders