First Class Securities Pty Limited v R Neuhaus - [2019] NSWSC 1261

Supreme Court

New South Wales

Medium Neutral Citation: First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261
Hearing dates: 30 August 2019
Decision date: 30 August 2019
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The extension of time sought for an affidavit to be served and relied on not granted.

Catchwords: CIVIL PROCEDURE – extension of time – application to serve and rely on affidavit out of time – expert evidence – compliance with expert witness code of conduct – where affidavit seeks to remedy expert report’s non-compliance with expert witness code of conduct – where incurable defects in expert report – whether there is utility in granting leave to serve and rely on affidavit out of time.
Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) rr 1.12, 31.23; Sch 7
Cases Cited: - Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Ltd [2010] NSWSC 1043
- Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Limited [2011] NSWCA 279
- Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd [2007] NSWSC 1128
- Welker v Rinehart (No 6) [2012] NSWSC 160
- Wollongong City Council v Ensile Pty Ltd [2008] NSWLEC 154
Texts Cited: - P Taylor, Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis, 2019)
Category: Procedural and other rulings
Parties: First Class Securities Pty Limited (Plaintiff)
Rosemarie Neuhaus (Defendant)
Representation:
Counsel:
E T Finnane (Plaintiff)
R D Glasson (Defendant)
Solicitors:
Celtic Legal (Plaintiff)
Piper Alderman (Defendant)

File Number(s): 2017/304575

Judgment – ex tempore (revised 3 september 2019)

Background

By Notice of Motion filed on 29 August 2019, the Plaintiff, First Class Securities Pty Limited (“FCS”) seeks an order under r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the time for it to file and serve its evidence in support of its claim be extended to 30 August 2019, to the extent of permitting it to serve and rely on an affidavit of Ms Milne sworn 29 August 2019 and the exhibits to that affidavit. That order was also sought on an alternative basis, but it is not necessary to address that alternative basis, where Mr Glasson, who appears for the Defendant, Ms Neuhaus, rightly accepts that the Court has power to extend the time for service of, and reliance on, Ms Milne’s affidavit in an appropriate case.
It is necessary to say something further as to the circumstances in which the issue arose. On 18 March 2019, after a succession of delays in the Plaintiff filing and serving the evidence on which it was to rely, the Court made an order that it file and serve that evidence by 8 April 2019, failing which the proceedings would be struck out. The Plaintiff then filed an affidavit of Ms Milne dated 8 April 2019, which exhibited an insolvency report which she had prepared. Ms Milne is a chartered accountant. I will address some of the issues raised by her…

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.

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Details

Case: [2019] NSWSC 1261
Decision Date: 30 August 2019

CaseChat Overview and Summary

First Class Securities Pty Limited sought an extension of time to serve and rely on an affidavit from an expert witness, which was out of time. The case was heard by the Supreme Court of Victoria. The primary issue before the court was whether the affidavit, which sought to address the non-compliance of an expert report with the expert witness code of conduct, could be admitted despite being served late. A secondary issue was whether the expert report contained incurable defects that rendered the affidavit futile.

The court considered the circumstances under which the affidavit was served late and the potential utility of granting leave for its admission. It examined the requirements of the expert witness code of conduct and the defects in the expert report. The court determined that the affidavit did not remedy the incurable defects in the expert report, and therefore, there was no utility in granting leave to serve and rely on the affidavit out of time. Consequently, the application was dismissed.

The Supreme Court of Victoria held that the application to serve and rely on the affidavit out of time was denied. The court found that the expert report contained incurable defects and that the affidavit did not address these issues effectively. The late service of the affidavit did not change the fundamental flaws in the expert evidence, and therefore, the application was dismissed.

Orders