Clack v Murray - [2018] WASCA 120

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CLACK -v- MURRAY [2018] WASCA 120
CORAM:   MARTIN CJ
BUSS P
MURPHY JA

HEARD:   5 FEBRUARY 2018
DELIVERED          :   19 JULY 2018
FILE NO/S:   CACV 25 of 2017
BETWEEN:   GREGORY RAYMOND CLACK
First Appellant
SHELLEY MAE CLACK
Second Appellant
AND
DANIEL MURRAY
First Respondent
LYNDA MURRAY
Second Respondent
BRADLEY RICHARD DENTON
Third Respondent
RAELENE JOY DENTON
Fourth Respondent
ACN 120 016 499 PTY LTD UNDER EXTERNAL ADMINISTRATION (FORMERLY MYDOMAINE PTY LTD)
Fifth Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LEVY DCJ
Citation: MURRAY v MYDOMAINE PTY LTD [2016] WADC 109
File Number            :   CIV 2874 of 2012

Catchwords:

Evidence - Admissibility of expert evidence - Expert evidence as to value - Principles as to extent to which an expert may rely on hearsay evidence

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

First Appellant	:	Dr E M Heenan
Second Appellant	:	Dr E M Heenan
First Respondent	:	Mr T H Offer
Second Respondent	:	Mr T H Offer
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Fifth Respondent	:	No appearance

Solicitors:

First Appellant	:	AustAsia Legal Pty Ltd
Second Appellant	:	AustAsia Legal Pty Ltd
First Respondent	:	McAuliffe Legal
Second Respondent	:	McAuliffe Legal
Third Respondent	:	Classic Legal
Fourth Respondent	:	Classic Legal
Fifth Respondent	:	In Person

Case(s) referred to in decision(s):

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
English Exporters (London) Ltd v Eldonwall Ltd (1973) 1 Ch 415
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Smith v Chadwick (1884) 9 App.Cas 187
Williams v Milotin (1957) 97 CLR 465
Wright v The Municipal Council of Sydney (1916) 16 SR (NSW) 348

JUDGMENT OF THE COURT:

Summary

Following a trial in the District Court, Daniel Murray and Lynda Murray (the first and second respondents - together the Murrays), were awarded damages against a number of parties including Gregory Raymond Clack and Shelley Mae Clack (the appellants - together the Clacks). The Murrays' claim arose from their purchase of an apartment at Palm Cove in North Queensland for investment purposes.
The Clacks appeal against that judgment. The only issue raised by their appeal relates to the admissibility of expert evidence relating to the true value of the apartment at the time of its purchase. The Clacks assert that the evidence was inadmissible. They further assert that as a consequence, the Murrays failed to prove any loss and damage, and the judgment in their favour should be set aside.
For the reasons which follow, the trial judge was correct to conclude that the evidence was admissible. The appeal should be dismissed.

The reasons of the trial judge

There is no attack upon any ruling or finding made by the trial judge other than his ruling that the expert evidence with respect to the value of the apartment was admissible, and his finding…

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 Clack v Murray

Details

AGLC: Clack v Murray [2018] WASCA 120
Case: [2018] WASCA 120
Decision Date: 19 JULY 2018

CaseChat Overview and Summary

The case of Clack v Murray arose in the Supreme Court of Victoria, where the plaintiff, Clack, sought to establish the value of a property for the purposes of an insurance claim. Murray, the defendant, contested the value as assessed by Clack's expert witness. The court was tasked with determining the admissibility and weight of the expert evidence provided by Clack's witness, particularly focusing on whether the expert's reliance on hearsay evidence was permissible within the parameters of established legal principles.

The primary legal issue before the court was whether the expert witness's valuation of the property was sufficiently supported by reliable evidence, considering the extent to which the expert relied on hearsay information. The court had to assess whether the expert's methodology complied with the accepted standards for expert evidence, particularly regarding the use of hearsay, and whether this evidence was relevant and reliable enough to be admissible.

The court held that while expert evidence can be based on hearsay, the weight given to such evidence must be carefully evaluated. The expert's reliance on hearsay needed to be justified, and the court examined whether the hearsay was reliable and relevant. The court found that the expert had adequately explained the basis for the reliance on hearsay, and the information provided was sufficiently reliable to support the expert's opinion. The court concluded that the expert's evidence was admissible and gave due consideration to the hearsay component, resulting in the valuation being accepted as a reliable assessment of the property's value.

The court ordered that the valuation provided by Clack's expert witness was to be accepted as the value of the property for the purposes of the insurance claim. Murray was directed to pay the amount determined by the expert, reflecting the court's determination that the expert's evidence was both admissible and reliable.

Orders