Hannaford v Farquhar

[2022] NSWSC 667

Supreme Court

New South Wales

Medium Neutral Citation:

Hannaford v Farquhar [2022] NSWSC 667

Hearing dates:

25 May 2022

Date of orders:

25 May 2022

Decision date:

25 May 2022

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) The plaintiff’s Notice of Motion filed 22 April 2022 is dismissed.

(2) The plaintiff is to pay the defendant’s cost of the Notice of Motion.

Catchwords:

CIVIL PROCEDURE – late application to rely on irrelevant expert evidence – two and a half weeks before hearing date – professional negligence proceedings regarding events in 2011 - unexplained delay – no point of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Category:

Procedural rulings

Parties:

Sharon Hannaford (Plaintiff)
Anthony Farquhar (Defendant)

Representation:

Counsel:
C Stewart (Plaintiff)
A Avery-Williams (Defendant)

Solicitors:
Gregory Hilton Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2017/00141407

Publication restriction:

Nil

Judgment

1. The plaintiffs seek leave by notice of motion filed on 22 April 2022 to serve and rely upon two reports of a property valuer, TJ Davis, dated September 2021 and April 2022 respectively. The motion came before me today as Duty Judge and given the proceedings have a hearing date on 14 June 2022 (just 2½ weeks away) my reasons can be, and will be, briefly expressed.

2. The proceedings concern allegations - which are frankly a little difficult to follow in the latest iteration of the amended statement of claim - that the defendant solicitors were negligent in the way they advised the plaintiffs with respect to Land and Environment Court proceedings and the plaintiffs’ rights under an insurance policy affecting their property in Castle Cove.

3. The Land and Environment Court proceedings terminated in a judgment against the plaintiffs on 4 March 2011. It seems that the plaintiffs then made a claim on their insurance policy with AMP, but it was rejected by AMP on 23 December 2011. The case they seek to make against the defendants in this Court seems to be that the defendants should have advised the plaintiffs not to accept the rejection of the claim. What the plaintiffs assert would have occurred had that step been taken is not pleaded.

4. The statement of claim commencing the proceedings against the defendants was filed in the District Court on 11 May 2017.

5. In the third amended statement of claim - which I was advised by counsel for the plaintiffs, Mr Stewart, is the current version - the plaintiffs seek damages under four separate heads:

1. Payment of the sum of the difference in the capital value of their property as at 4 March 2011 and the capital value if the property were undamaged;

2. In the alternative, payment of the sum that would have been payable by an insurer to repair the property;

3. Damages for loss of business;

4. Damages in respect of alleged psychiatric injury.

6. There is no application to further amend the current statement of claim.

7. The affidavit material relied upon by the plaintiffs comprises a single affidavit of Mr Smith, the second plaintiff. It does not explain the delay in seeking the expert reports, other than to comment, somewhat obliquely:

“Initially reports about real estate made me unsure if this particular area of loss that is to say the ability to buy back in with sustainable but about early last September, I came to the view that it may be worthwhile to explore it.”

8. There was no affidavit from the solicitor with the conduct of the proceedings on behalf of the plaintiffs explaining the delay.

9. Also relevant by way of background is the fact that the proceedings have been the subject of many failures by the plaintiffs to comply with court orders for service of evidence, including an order made on 4 May 2021 by Harrison J that the plaintiffs must serve all of their evidence by 20 May 2021 and that they could not rely on evidence served after that date without leave of a judge of this Court.

10. The order for leave is sought pursuant to s 56 of the Civil Procedure Act 2005 (NSW).

11. Obviously enough, this Court must give effect to the overriding purpose of just quick and cheap resolution of the real issues in dispute when deciding whether the leave sought should be given.

12. As pointed out by Ms Avery-Williams, counsel for the defendants, there is nothing pleaded in the statement of claim that would correspond to a potential claim for damages of the nature to which the reports were directed.

13. Nowhere in the statement of claim do the plaintiffs seek damages on the basis that they sold their property in April 2018 and are now unable to “buy back” into the same market, but that is the only issue upon which the reports of Mr Davis have been asked to express an opinion.

14. The other significant problem with the reports is that Mr Davis specifically states that he was not instructed to carry out a formal or informal valuation of the property in question, but only to indicate the generally equivalent price of properties “in Castle Cove and a selection of nearby suburbs”.

15. That is not a question that arises in the proceedings. As correctly submitted by Ms Avery-Williams, the reports are not relevant to the case pleaded at all.

16. A seven-day hearing is listed to commence on 14 June 2022.

17. The notice of motion is very late and the affidavit tendered does not even attempt to explain the delay. Most fatally, however, the plaintiffs seek to have admitted into evidence expert reports that do not correlate to any allegations of loss or damage pleaded in the proceedings in circumstances where the case has been on foot for five years and service of evidence was ordered to be finalised 12 months ago.

18. It does no justice between the parties to allow the late admission of irrelevant evidence, and so I refuse leave to rely on the two reports of Mr Davis.

19. Costs follow the event and so the plaintiffs should pay the defendants’ costs of the notice of motion.

20. The Court makes orders as follows:

1. The plaintiff’s Notice of Motion filed 22 April 2022 is dismissed.

2. The plaintiff is to pay the defendant’s cost of the Notice of Motion.

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Decision last updated: 27 May 2022