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…

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 Lucantonio v Kleinert

Details

AGLC: Lucantonio v Kleinert [2009] NSWSC 929
Case: [2009] NSWSC 929
Decision Date: 5 August 2009

CaseChat Overview and Summary

The case of Lucantonio v Kleinert was heard in the Supreme Court of Victoria. The plaintiff, Lucantonio, sought to add an additional expert witness after other expert witnesses involved in a conclave had produced a joint report. The defendant, Kleinert, opposed the plaintiff’s attempt to tender the report from the additional expert. The nature of the dispute was whether the plaintiff should be allowed to introduce new expert evidence at a late stage in the proceedings.

The legal issues before the court centred on the management and timing of expert evidence in litigation. The court had to determine whether the plaintiff should be permitted to tender the report from the additional expert who had not been involved in the conclave, despite the existence of the joint report. The court was required to balance the interests of fairness to the parties against the potential for unnecessary delay and expense.

The court concluded that allowing the plaintiff to tender the report from the additional expert would frustrate the purpose of the court’s management of expert evidence. It found that such a move would undermine the efficiency of the process and potentially create unnecessary complications. The court held that the plaintiff’s attempt to introduce new expert evidence was an abuse of the court process and therefore rejected the application. The court's decision was based on the need to maintain the integrity of the expert evidence management system, which aims to avoid unnecessary duplication and to ensure that all parties have an equal opportunity to challenge and respond to expert evidence.

Orders