Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd

[2008] NSWSC 1250

CITATION:	Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1250
HEARING DATE(S):	21 November 2008
JUDGMENT DATE :	21 November 2008
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Tender of Mr Martin’s valuer’s affidavit of 1 October 2008 and 2006 valuation report again rejected.
CATCHWORDS:	EVIDENCE [56] - Admissibility and relevancy - Opinion evidence - Expert opinion - Report to contain facts and assumptions of fact on which opinion based - Qualifications of witness - Compliance with expert witness code of conduct – Very late compliance with requirements for admissibility.
CATEGORY:	Procedural and other rulings
CASES CITED:	Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1201
PARTIES:	5533/06 Lym International Pty Limited (P1) Limin Yang (P2) Yang Liu (P3) Yu Po Chen (D1) Westpac Banking Corporation (D2) 5049/07 Leonilda Marcolongo (P) Lym International Pty Limited (D1) Yu Po Chen (D2)
FILE NUMBER(S):	SC 5533/06; 5049/07
COUNSEL:	T S Hale SC & S A Wells (Lym International, Yang & Liu) D R Pritchard SC & J S Emmett (Chen) T A Alexis SC & D H Mitchell (Marcolongo) Submitting appearance (WBC)
SOLICITORS:	TressCox Lawyers (Lym International, Yang & Liu) Middletons (Chen) Dunstan Legal (Marcolongo) Henry Davis York (WBC)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 21 NOVEMBER 2008

5533/06 LYM INTERNATIONAL PTY LIMITED & ORS v YU PO CHEN & ANOR
5049/07 LEONILDA MARCOLONGO v LYM INTERNATIONAL PTY LIMITED & ANOR

JUDGMENT - re further application to tender valuation evidence (see T 1582)

1 HIS HONOUR: This is a further application on behalf of the first defendant in 5533/06 to put into evidence the affidavit of Mr Martin, valuer, sworn on 1 October 2008 and what has been called the August 2006 valuation as to the value in an “as was” condition of the subject property.

2 I rejected an earlier tender of this material: see Lym International Pty Ltd v Chen; Marcolongo v Lym International Pty Ltd [2008] NSWSC 1201 (“my judgment”). I did indicate on that day, as recorded in the transcript, that I should not regard the first defendant as in any improper way canvassing my decision if he subsequently made a further application to rely on that material. I indicated that time was potentially available today, 21 November 2008, to cross examine Mr Martin, if his evidence was admitted.

3 I did indicate that I should not preclude the making of a further application because I fully recognise the desirability of any party to proceedings putting into evidence all the material that that party says is relevant to the determination of the proceedings and have it taken into account in the Court’s decision.

4 Mr Pritchard, of Senior Counsel for the first defendant, today again proffers Mr Martin’s affidavit of 1 October 2008 and the August 2006 valuation. In support of his application to tender and rely on that material at this late stage, he has read an affidavit of Mr Martin sworn 20 November 2008 and tendered a further valuation report of Mr Martin as to the value of the property at the relevant time, prepared “from scratch”.

5 The affidavit does cure at last some of the earlier objections taken to this valuation evidence from Mr Martin, in that for the first time it clearly puts into evidence all the material on which he based the August 2006 valuation and explains his relationship to, and understanding of, the Expert Witness Code of Conduct.

6 Mr Hale, of Senior Counsel for the plaintiffs in 5533/06, continues to object to the tender of the material. Despite Mr Hale’s extensive experience in the cross examination of valuers, he informs the Court that he is far from certain that he can be ready to cross examine Mr Martin satisfactorily today. Of course, I accept Senior Counsel’s word to that effect.

7 Despite the observations in my judgment that the matter had been put “off and off as the trial has gone on” and that I was “not now inclined to allow more time for the matter to be put in order”, the fresh material to cure the earlier defects was not served on the plaintiffs until 6pm yesterday. Among the materials served was a freshly prepared valuation report by Mr Martin. Even if that report is not tendered in the trial, as it has not been to date, cross examining counsel would have to study that report in detail and absorb it before he could feel assured that he could cross examine Mr Martin properly.

8 I have already given warnings that the case simply cannot proceed beyond today. I must be able to reserve judgment today or within perhaps a few further days allowed for any short supplementary written submissions by anybody, as is my custom.

9 I require adequate oral submissions from counsel in this very difficult and complex matter. I have substantially read Mr Hale’s written submissions in reply and it is clear to me that I am going to require considerable oral exposition of those written submissions that will take all or most of today.

10 I am simply not prepared to allow the matter to go further, not even to wait, as Mr Pritchard asks, to see if there is any time left at the end of today for this matter to be taken further. The time for attending to the matters necessary to support the tender of Mr Martin’s evidence had passed probably long ago and certainly before 6pm yesterday.

11 I again reject the tender of Mr Martin’s affidavit of 1 October 2008 and the August 2006 valuation. I should say that, whilst I am doing this for the reasons already stated, I am encouraged in my conclusion by the fact that it seems to me that that valuation, if admitted, would not play any central part in the determination of these proceedings.

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