Lucantonio v Kleinert

[2009] NSWSC 929

CITATION:	Lucantonio v Kleinert [2009] NSWSC 929
HEARING DATE(S):	5 August 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	5 August 2009
DECISION:	Tender of expert evidence refused
CATCHWORDS:	EVIDENCE – expert evidence – where plaintiff seeks to tender report of an additional expert after other expert witnesses have been involved in conclave and have produced joint report – where additional expert was not involved in conclave – held: to allow plaintiff to tender report would frustrate purpose of Court’s management of expert evidence
CATEGORY:	Procedural and other rulings
PARTIES:	Dean Lucantonio as trustee for the Lucantonio Family Trust (plaintiff) Jaime Kleinert (first defendant/XC1 first cross-defendant/XC2 cross-claimant) Otto Stichter (second defendant/XC1 cross-claimant/XC2 first cross-defendant) Darryl Leslie Warren (third defendant/XC1 second cross-defendant/XC2 second cross-defendant)
FILE NUMBER(S):	SC 20351/04
COUNSEL:	Mr G Laughton SC w Ms D Christofis (plaintiff) Mr R Darke SC (first defendant) Mr G Curtin (second defendant) Mr M Ashhurst SC (third defendant)
SOLICITORS:	Gells Lawyers (plaintiff) Kennedys Lawyers (first defendant) DLA Phillips Fox Lawyers (second defendant) McCabe Terrill Lawyers (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BRERETON J

Wednesday 5 August 2009

20351/04 Dean Lucantonio as Trustee for Lucantonio Family Trust & 2 Ors v Jaime Kleinert & 2

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff alleges that the first defendant Mr Kleinert is guilty of negligence in respect of advice given by him to the plaintiff as to the “buildability” of a development application attached to a property purchased by the plaintiff from a third party in October 2001. In order to establish his case, the plaintiff must establish, inter alia, that the advice given by Mr Kleinert was incorrect. While that would not be sufficient to entitle the plaintiff to succeed, it is impossible to see how the plaintiff could succeed without at least establishing that the advice given was incorrect.

2 For the purpose of establishing that an architect’s advice is incorrect, one would have thought that the ordinary approach was to call an expert architect to give evidence as to the position, and as to whether the error was such as to amount to a departure from standard or appropriate architectural practice, and, if so, how.

3 The plaintiff has qualified and intends to call an expert for that purpose. So have at least two of the defendants. Those experts have been required, by directions of the court, to confer and to prepare a joint report, and they have done so. In their joint report, they have reached agreement on some issues but not on others, and set out – at least, to some extent – their reasons for disagreement.

4 The plaintiff now seeks to tender reports of another architect, Mr Powell, who prepared the plans contained in the DA referred to in the contract for sale. Although Mr Powell is undoubtedly qualified, and although his evidence is undoubtedly relevant, it is to be observed that, unlike the other experts who will give evidence – and, for that matter, unlike Mr Kleinert – he comes to the case from the perspective of one who drew the plans, rather than one who was confronted with reviewing and interpreting plans drawn by another. That, of itself, involves bringing a different perspective to the exercise which, to my mind, would prima facie reduce the objectivity and value of Mr Powell's evidence.

5 More importantly, although the existence of Mr Powell – and, for that matter, his reports – has been known for some considerable time, since they were used in earlier proceedings before Bryson AJ in the Equity Division, notice of intention to rely on those reports in this case, and to call Mr Powell as an expert witness, was given but belatedly, after the expert conclave had taken place and their joint report was prepared. Mr Powell was not involved in that process.

6 It would entirely defeat the purpose of the expert conclave process, including the production of a joint report, to permit one of the parties now to adduce the evidence of a further expert witness, after the conclave has taken place and after the joint report has been prepared, to give an opinion contrary to at least some of those agreed to by some of the experts in the course of the conclave and joint report. The court manages closely the use of expert evidence. In this case, the purpose of the course of management adopted would be entirely frustrated if the plaintiff were now permitted to call a further expert witness who had not been involved in the conclave and the preparation of the joint report.

7 I reject Mr Powell's reports at tabs 60, 68 and 69 of volume B.

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