Lee v Sponge Hair Salon Pty Limited
[2013] NSWSC 1795
•20 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Lee v Sponge Hair Salon Pty Limited [2013] NSWSC 1795 Hearing dates: 20 November 2013 Decision date: 20 November 2013 Jurisdiction: Equity Division - Duty List Before: Lindsay J - Duty Judge List Decision: An application for preparation of a report by a handwriting expert dismissed with costs.
Catchwords: EVIDENCE - Expert- Opinion of handwriting expert - Whether such evidence should be allowed - No necessity for, or utility in, such evidence where, in substance, directed to credit of witnesses Legislation Cited: Uniform Civil Procedure Rules 2005 NSW Cases Cited: - Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Sang Mee Lee
First Defendant: Sponge Hair Salon Pty Ltd
Second Defendant: Yu Min Kwon
Third Defendant: Jin Man Kim (submitting)Representation: Counsel:
J Lo Schiavo (Plaintiff)
A Combe (First and Second Defendants)
Solicitors:
Hall Partners (Plaintiff)
Lewis Bollard (First and Second Defendants)
File Number(s): 2012/00085362
Judgment - EX TEMPORE
The plaintiff makes an oral application for orders (under r 23.8 and rr 31.19 and 31.2 of the Uniform Civil Procedure Rules 2005 NSW) designed to allow for:
(a) examination by a handwriting expert of a disputed signature attributed to the second defendant on a document dated 30 November 2011 reproduced as annexure L (in the form of the original Korean version and an English translation) to the affidavit of the plaintiff sworn 20 March 2013; and
(b) the preparation of a report by that handwriting expert as a joint report,
using as comparators the signatures of the second defendant appearing on affidavits sworn by her in the proceedings, and contractual documentation.
The affidavit evidence thus far served in the principal proceedings includes:
(a) an affidavit of the plaintiff sworn on 5 November 2013 to the effect (in para 26) that the second defendant signed the disputed document in the presence of the third defendant; and
(b) an affidavit of the third defendant sworn in 15 November 2012 to the effect (in para 41) that the plaintiff, the second defendant and he entered into an agreement evidenced by the disputed document on or about 30 November 2011.
The case advanced by the plaintiff, apparently with the support of evidence from the third defendant, is that the second defendant signed the disputed document in the presence of the plaintiff herself and the third defendant. The second defendant denies doing so.
There is no evidence, in support of the plaintiff's application, that a handwriting expert could reasonably be expected to express a reliable opinion as to authorship of the disputed signature.
A resolution of the parties' dispute as to authorship of the disputed signature can be resolved, more readily than it might otherwise have been, because the evidence of both the plaintiff and the third defendant is to the effect that the second defendant signed the document in their presence, not that she signed the document unobserved.
The opinion of a handwriting expert would, at the end of the day, be no more than an opinion going, in large measure, to the credit of the witnesses who have deposed to competing versions of the origin of the disputed document.
The amount at issue in the proceedings is said to be in the order of $170,000.
The proceedings have followed a tortuous path towards today, with what appears to have been a difficult road towards readiness for a hearing date.
I am not satisfied that the cost and delay involved in the grant of the orders sought by the plaintiff can be justified, having regard to case management principles and the amount at issue in the proceedings.
On the contrary, I am inclined to the view that to grant the relief sought today would be to impose another impediment on the preparation of the proceedings for a hearing.
In those circumstances I propose to dismiss the application made by the plaintiff.
The first and second defendants, who (in light of a submitting appearance filed by the third defendant) have had carriage of opposition to the plaintiff's application, seek an order for costs arising from its dismissal. The plaintiff, for her part, points to the advantage, such as it may have been, in issues being ventilated in the course of the application.
At the end of the day, though, an application has been made and lost, and an order for costs should follow on the basic rule that costs follow the event.
Accordingly, the orders I make are:
(1) Order that the oral application of the plaintiff for an order, or orders, that there be a handwriting expert report relating to the disputed document dated 30 November 2011 comprising part of annexure L to the affidavit of the plaintiff sworn 20 March 2013 be dismissed.
(2) Order that the plaintiff pay the costs of the first and second defendants relating to the application.
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Decision last updated: 05 December 2013
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