Coyne v Calabro - [2009] NSWSC 1023

CITATION: Coyne v Calabro [2009] NSWSC 1023

HEARING DATE(S): 15/09/09

JUDGMENT DATE :
18 September 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to paras 23 and 24 of judgment.

CATCHWORDS: EVIDENCE – expert evidence – single expert appointed – communication took place between appointed expert and party which should not have occurred – significant differences in opinion between appointed expert and expert separately engaged by the defendants - leave to adduce further expert evidence

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Tomko v Tomko [2007] NSWSC 1486
Wu v Statewide Developments Pty Ltd [2009] NSWSC 587
Daniels v Walker [2000] 1 WLR 1382
Cosgrove v Pattison [2000] All ER (D) 2007

PARTIES: Terence Michael Coyne & 1 Or
v
Grazia Rita Calabro & 1 Or

FILE NUMBER(S): SC 2817/08

COUNSEL: Plaintiffs: P Barham
Defendants: J Ireland QC with J S Cooke
Cross-Defendant: A P LoSurdo

SOLICITORS: Plaintiffs: Comino Prassas
Defendants: Pikes Lawyers
Cross-Defendant: Lander & Rogers Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 18 September 2009

2817/08 Terence Michael Coyne & 1 Or v Grazia Rita Calabro & 1 Or

JUDGMENT

1 HIS HONOUR: One of the significant issues in these proceedings is the value of the subject property as at 6 May 2008. Some parties contend that the value of the property at other dates is also relevant to questions of damages.

2 The defendants filed an affidavit of Mr Jason Field, a practising valuer, sworn 10 December 2008. He exhibited to his affidavit a valuation report he prepared on 14 November 2008. He valued the subject property as at 6 May 2008 at $5 million. No application was made under r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) for directions in relation to the adducing of expert evidence at the trial.

3 On 20 April 2009 for reasons which I then gave I acceded to an application by the plaintiffs pursuant to r 31.37 for an order that a single expert be engaged by the parties jointly to value the property as at each of the dates any of the parties contended to be relevant. I stood the proceedings down to a convenient time for the parties to consult further on the identity of the person to be appointed as the single expert and to consult upon the terms of his or her instructions. The plaintiffs’ solicitors submitted to the other parties the names of three valuation firms as potential appointees as a single expert. On 30 April 2009 I made orders appointing Mr Danny Sukkar of LandMark White to be engaged jointly by the parties as the parties’ single expert in the proceedings. I directed that the instructions to the valuer include a direction that any communication seeking further instructions or clarification should be done in writing with a copy to each party’s solicitor. That statement was duly included in the instructions to Mr Sukkar. The letter…

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 Coyne v Calabro

Details

AGLC: Coyne v Calabro [2009] NSWSC 1023
Case: [2009] NSWSC 1023
Decision Date: 18 September 2009

CaseChat Overview and Summary

In the matter of Coyne v Calabro, the Federal Court of Australia was tasked with deciding whether the plaintiff was entitled to present further expert evidence. The plaintiff had engaged a single expert, who subsequently communicated with a party involved in the dispute, which should not have occurred. This communication resulted in significant differences of opinion between the single expert and an expert separately engaged by the defendants. The defendants argued that the plaintiff should be precluded from presenting further expert evidence due to the improper communication.

The court was required to determine whether the plaintiff's expert's communications with a party involved in the litigation warranted the exclusion of their evidence. The court considered the circumstances surrounding the communications, the extent to which the communications influenced the expert's opinion, and the impact of the communications on the fairness of the proceedings. The court also considered the significant differences in opinion between the single expert and the defendants' expert.

The court concluded that the communications between the plaintiff's expert and a party in the litigation were serious breaches of professional conduct that undermined the reliability of the expert's evidence. However, the court found that the plaintiff was not precluded from presenting further expert evidence if it could be shown that the evidence was necessary to ensure a fair trial. In this case, the court found that the presentation of further expert evidence was necessary to ensure a fair trial, as the significant differences in opinion between the parties' experts warranted the presentation of additional expert evidence to assist the court in reaching a just decision. The court granted the plaintiff leave to adduce further expert evidence.

The court ordered that the plaintiff be allowed to present further expert evidence in the form of a report from an additional expert, and that the defendants be allowed a reasonable time to respond to this new evidence. The court also ordered that the parties bear their own costs associated with the application to adduce further expert evidence.

Orders