Mulkearns v Chandos Developments Pty Ltd - [2003] NSWSC 1084

CITATION: Mulkearns v Chandos Developments Pty Ltd [2003] NSWSC 1084

HEARING DATE(S): 18/11/03

JUDGMENT DATE:
18 November 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: The evidence is inadmissible because it is not shown that the plaintiff had the specialised knowledge necessary to give opinion evidence as an expert under s 79 of the Evidence Act 1995.

CATCHWORDS: EVIDENCE [56]- Expert evidence- Valuation- Minimum expertise required- Keeping database of local sale prices insufficient.

LEGISLATION CITED: Evidence Act 1995, ss 11, 79

CASES CITED: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

PARTIES :
Anthony Michael Mulkearns and High Forest Estate Pty Ltd (P)
Chandos Developments Pty Limited (D)

FILE NUMBER(S): SC 4016/03

COUNSEL: V R W Gray (P)
C A Sweeney QC and W Hodgekiss (D)

SOLICITORS: James H Field (P)
Stephen Noss & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 18 November 2003

4016/03 - MULKEARNS v CHANDOS DEVELOPMENTS PTY LTD

JUDGMENT (Re admissibility of evidence: see p 13 of transcript)

1 HIS HONOUR: In affidavit PA04 the first plaintiff said:

“I am a licensed real estate agent. As at the date of this affidavit I believe that the market value of the property the subject of the contract is approximately $4 million ... “

2 When the witness was introduced, principally for the purpose of cross-examination on his four affidavits filed in these proceedings, Mr Ventry Gray of counsel for the plaintiff sought to supplement the evidence. Mr Sweeney QC for the defendant objected, but I allowed the questions to continue for a while.

3 However, it now would appear to me that I should have had the witness sworn on the voir dire because the real problem is whether he has sufficient expertise to be of assistance.

4 Mr Gray points to the fact that s 79 of the Evidence Act 1995 says that:

“If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”

5 He submitted that so long as a person gets to the stage of knowing more than the average lay member of the public that the person fits within s 79.

6 However, as Professor Zukerman points out in his book on Civil Procedure (Lexis Nexis, London, 2003) p 619 [20.11] Court Power:

“The court's power concerning expert evidence is exercised with a view to ensure that such evidence is admitted only if it is likely to be of real assistance to the determination of the issue and that it is obtained and presented in the most effective and economical way consistent with the overriding objective.”

7 Of course, the learned Professor is writing in relation to the reforms in England, but the same flavour permeates through our Evidence Act, in that the…

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.

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Details

Case: [2003] NSWSC 1084
Decision Date: 18 November 2003

CaseChat Overview and Summary

Mulkearns v Chandos Developments Pty Ltd involved a dispute between the plaintiff, who was a homeowner, and the defendant, a developer, regarding the valuation of a property. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that the defendant had undervalued the property, resulting in an inadequate offer. The defendant contended that the valuation provided was accurate and based on appropriate industry standards.

The primary legal issue before the court was whether the expert evidence provided by the defendant's valuer met the required standard of expertise. The plaintiff challenged the valuer's qualifications, arguing that maintaining a database of local sale prices did not equate to the necessary expertise in property valuation. The court needed to determine if the valuer's evidence was reliable and whether it was sufficient to inform the valuation of the property in question.

The court held that the valuer's reliance on a database of local sale prices was not sufficient to establish the requisite expertise in property valuation. The court emphasised that expertise in property valuation requires a comprehensive understanding of market conditions, property characteristics, and relevant economic factors. The database alone did not demonstrate the necessary knowledge or experience to provide a reliable valuation. Consequently, the court found the valuer's evidence to be inadequate, and the defendant's valuation was deemed insufficient. The court ordered the defendant to pay the plaintiff compensation for the undervalued property.

Orders