Marroun v Roads and Maritime Services (No 2)

[2011] NSWLEC 262

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marroun v Roads and Maritime Services (No 2) [2011] NSWLEC 262
Hearing dates:	10 and 11 August 2011
Decision date:	11 August 2011
Jurisdiction:	Class 3
Before:	Sheahan J
Decision:	Tender allowed, subject to relevance, and with some deletions.
Catchwords:	EVIDENCE: Objections to the valuation report from the Respondent's expert
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Cases Cited:	Dasreef Pty Limited v Hawchar [2011] HCA 21 Koutsouras v SRA [1988] NSWLEC 83 Makita v Sprowles (2001) 52 NSWLR 705
Category:	Procedural and other rulings
Parties:	Michael Marroun and Kaokab Marroun (Applicants) Roads and Maritime Services (Respondent)
Representation:	Mr J Webster SC, with Ms V McWilliam (Applicants) Mr R Lancaster SC, with Mr N Eastman (Respondent) Fay Rose Legal (Applicants) Henry Davis York (Respondent)
File Number(s):	30983 of 2010

Judgment

1. Overnight the Court has reviewed the Lunney report proposed to be tendered by the respondent and the objections to it by the applicants (both in writing on 5 August 2011, and orally on 10 August, at Tpp 48-68).

1. A slight complication was that we found that the applicant had filed two sets of objections. They were signed on the same day but with different content, and, although the applicants argued only on one, we have reviewed both.

1. There has been a consistent delay on the applicants' side in the filing of its evidence, especially its expert valuation evidence provided by Mr Carrapetta, and there has been a consequential delay in securing the agreement between the expert valuers on their joint report for the hearing.

1. In the absence of a final version of the valuers' joint report, the applicants tendered Mr Carrapetta's very late evidence-in-chief over modest objections by the respondent, which the Court has quite easily resolved. However, there have been major objections by the applicants to the tender and admissibility of the Lunney report.

1. The applicant alleges a series of shortcomings in Mr Lunney's evidence. However, Mr Carrapetta's report would also appear to us to have similar shortcomings, in respect of which the respondent's counsel took no objections.

1. In the normal course of proceedings of this type, the alleged or so-called shortcomings of reports tendered by either side are resolved by the compulsory joint conferencing and reporting of experts, the crossexamination of each other's experts during their concurrent oral evidence, and the determination by the Court of the ultimate relevance of, and weight to be attributed to, the opinions advanced on either side of the contest.

1. Taken to its logical extreme, acceptance of the central objection taken by counsel to various parts of Mr Lunney's evidence would completely scuttle the practical application of the various rules, practice directions and codes of conduct et cetera, which have evolved over recent years to eliminate the adversarial posturing, point scoring and witness harassment which characterised such proceedings in earlier years.

1. As the respondent says in its objection submission at para 8, "to otherwise apply the 'basis rule' to every inquiry made by the valuer would be to put a near impossible impost on the parties if they were required to present first-hand non-hearsay evidence as to those matters".

1. Contrary to the applicants' submission, the Court considers that the principles espoused in Koutsouras v SRA [1988] NSWLEC 83 by Hemmings J, as he then was, against the background of s 38(2) of the Court Act, regarding the conduct of proceedings of this type, remains good law and good practice, despite the advent of the Uniform Civil Procedure Rules, the Expert Code of Conduct and the decisions of the Court of Appeal in Makita v Sprowles (2001) 52 NSWLR 705, and of the High Court in Dasreef Pty Limited v Hawchar [2011] HCA 21.

1. Having not yet seen the final, but long overdue, version of the joint valuation report upon which the Court will adjudicate, as the Civil Procedure Act requires, the real issues in this case in a just, cheap and quick way, but only on evidence correctly found to be relevant and probative, the Court believes that most of the applicants' objections to the Lunney report should be rejected, and the report admitted as an exhibit, subject to relevance.

1. The onus then falls on the parties to establish its provenance in the Court's task.

1. To come to any other conclusion on the objections would render nugatory to the substantial progress the Court has made in regulating its procedures over recent years.

1. The Court does, however, uphold the applicants' objections to several particular statements in Mr Lunney's report, which will now become Exhibit R3.

1. The particular points where we will not accept the evidence, include firstly, p 21 para 6.3.7. This is a paragraph in respect of which the difference between the two objection documents clarified itself after half an hour's examination this morning. The part which we will not accept starts at the word "however" on the second line of 6.3.7, and runs to the end of that sentence. So the first sentence will read: "There were some heritage restrictions in relation to sale three due to the requirement to retain the façade of the former fire station building." The paragraph will then continue: "Sale three is in a substantially superior location -" and so on.

1. The second occurs on p 28, in para 6.5.1, commencing at line 8, with the sentence which commences "I also note", and continues:

"I also note that Mr Kordek instructed his solicitor to leave the name of the purchaser blank presumably to enable Mr Kordek some time to decide the corporate entity which would undertake the purchase."

1. I do not think Mr Lunney is in a position to give that evidence and that sentence will not be read.

1. Then on p 30, in para 6.5.12, there are eight roman-numbered paragraphs. I rule out paras 4, 5, 6 and 8, and leave in paras 1, 2, 3 and 7.

1. Lastly, on p 37, given that most of that page is not to be read, at the respondent's option, in para 6.8.15, I leave in only the first sentence down to the word "development consent", and strike the last sentence: "As the legal cost described in 1 -" down to the term "double counting".

1. That seems to me to be sufficient, and that is the Court's decision on the tender.

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Decision last updated: 13 September 2013