Notaras v Hugh
[2003] NSWSC 181
•20 March 2003
CITATION: Notaras & Anor v Hugh & Ors [2003] NSWSC 181 HEARING DATE(S): 17-20, 24-27 February 2003
3-6, 10, 11 & 13 March 2003JUDGMENT DATE:
20 March 2003JURISDICTION:
Common LawJUDGMENT OF: Sperling J at 1 DECISION: See paragraph 1 of the judgment. CATCHWORDS: No question of principle LEGISLATION CITED: Evidence Act 1995, s69, s135
Supreme Court Rules 1970, Sch KPARTIES :
Irene Notaras
Enijar Pty Ltd
Robert Duncan Hugh, Justin Simon Adam, Robert Warwick Anderson, Michael John Astill, John Ashton Beardow, Jeremy James Bingham, Brian Harvey Davidson, Christopher Lee Davies, Sandra Katherine Dibella, Roger Andrew Fitzsimmons, Ronald William Forster, Andrew Dymock Forsyth, Ross Walter Forsyth, Terence Brian Grace, Robert Gordon Haines, Edward Lindsay Roux Houghton, Heather Patricia Irish, Stanley Simon Kalinko, Paul Joseph Larbalestier, Richard Geoffrey Lewis, Donald Gordon Mackay, Andrew John Tunmer Martin, Russell Victor Miller, Robert Keith Newton, Warwick Philip O'Rourke, Neal Findlay Shirras Parkinson, Mahla Liane Pearlman, Timothy George Peken, Warren James Pengilly, Martin Cassimer Przybylski, Graham Leonard Raffell, Michael Bernard Reymond, Barry Gordon Richardson, Peter Ronald Rigg, Paul William Robinson, Ross Edward Seller, Margaret Siddis, Ruth Lindsay Stringer, Mark Ferdinand Treffers, John Frederick Warburton, John Bede Weber, Jennifer Helen Wily, Ian Stuart Wylie & Michael Rodney Wynter t/a Sly & Weigall Solicitors (20217/98)
Graeme Solomon Newman & Kosmas Psaltis t/a Newman Psaltis & Co (20212/98)FILE NUMBER(S): SC 20217/98; 20212/98 COUNSEL: Mr R Evans with Mr J Whyte for the Plaintiffs
Mr J Sackar QC with Mr R Hollo for the Defendants in 20217/98
Mr D Davies SC with Mr J Downing for the Defendants in 20212/98SOLICITORS: McKells Solicitors for the Plaintiffs
Minter Ellison for the Defendants in 20217/98
Ebsworth & Ebsworth for the Defendants in 20212/98
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Professional Negligence List
Sperling J
Thursday, 20 March 2003
Judgment – On objections to Marsh statement20217/98 Irene Notaras & Anor v Robert Hugh & Ors
20212/98 Irene Notaras & Anor v Graeme Newman & Anor
1 His Honour: Schedules of the objections to Mr Marsh’s statement dated 13 March 2003 have been marked for identification and placed with the papers. What follows are my reasons for the rulings I made. This judgment should be read with my judgment of 18 March 2003.
Paragraph 2
2 I allowed the first sentence over objection. The sentence was said to be ambiguous. I took it to mean $5m in total for 1992. (Mr Marsh later confirmed that understanding.)
Paragraph 5
3 The objection was to the 1992 valuation reports relating to the Oxford St and Bourke St properties annexed to the statement as PM2 and PM3. It was at first deferred and dealt with later. (See later in the judgment.)
Paragraph 6
4 I allowed this paragraph over objection pursuant to the relaxed approach to valuation evidence.
Paragraph 7
5 I allowed this paragraph over objection. The annexed letters were business records which included representations of fact and opinion within the provisions of s69(2) of the Evidence Act 1995. (See Tr 1217-8)
Paragraph 8
6 I allowed this paragraph over objection, pursuant to the relaxed approach to valuation evidence.
Paragraph 9
7 I allowed the paragraph over objection, subject to proof of the matters referred to in it.
Paragraph 10
8 I disallowed this paragraph on the ground that it was relied on only as arithmetic, whereas there was the risk that it could be taken to be a further valuation opinion.
Paragraph 11
9 I allowed this paragraph over objection, being a minor qualification to the witness’ valuation opinion in relation to 17 Oxford St, Paddington.
Paragraph 12
10 I allowed this paragraph over objection, pursuant to the relaxed approach to valuation evidence. I made it a condition that the witness would give evidence that $572,000 was intended to mean the net revenue for the whole building. (That evidence was later given.)
Paragraph 13
11 I allowed this paragraph over objection, on my understanding of it as evidence of what the witness had done in the course of valuing 397-405 Bourke St, Darlinghurst. It was allowed on the basis that there would be evidence of the cost of renovations. (In the light of evidence given later by Mr Marsh, in answer to a question from me, as to how paragraph 13 came to be written, a different approach may have to be taken in evaluating this paragraph.)
Paragraph 14
12 I allowed this paragraph over objection. It was amplification of an aspect of the witness’ valuation report relating to the Bourke St property (sale as units, as a check method against the capitalisation approach). I allowed the paragraph pursuant to the relaxed approach to valuation evidence.
Paragraph 15
13 I allowed this paragraph over objection for what it said about having read Schedule K. I was assured the witness would give oral evidence of agreeing to be bound by the code in the Schedule (which he later did).
Paragraph 16
14 This paragraph was not pressed and was disallowed on the basis that evidence given earlier on the voir dire by the witness (Tr 1179-181) would be given in the cause. Later, the voir dire evidence was admitted in the cause. (See later in this judgment.)
Paragraph 18
15 I disallowed “a first mortgage loan in the sum of $1.2m. I refer to” as being evidence of the content of a document annexed to the statement.
Paragraph 19
16 I disallowed the second sentence on the same basis as under Paragraph 18 above.
Paragraph 21
17 I disallowed from “confirming” to the end of the sentence on the same basis.
Paragraph 22
18 I allowed the second sentence over objection. The witness had established sufficient qualification as an expert to be able to give evidence about this aspect of the lending industry, including the criteria on which it operated.
Paragraph 23
19 I allowed the last sentence of this paragraph over objection on the basis that it was evidence of the state of mind of either Mr Thomas or Mr Hitchings. I declined to reject the evidence pursuant to s135. For that purpose, I assumed that prejudice arising from inability to test that state of mind by cross-examination qualified as prejudice under the section. But I did not think that such prejudice outweighed the probative value of the evidence.
Paragraph 24
20 I allowed this paragraph over objection, on the basis that the witness was sufficiently qualified to provide the information in the first and second sentences and the opinion in the third sentence.
Paragraph 26
21 I allowed this paragraph over objection on the basis that the witness was sufficiently qualified to give the evidence, and on the basis that the principles underlying the relaxed approach to valuation evidence were applicable to opinion evidence given by a finance broker.
Paragraphs 27 & 28
22 These paragraphs were objected to. I disallowed only the second sentence of paragraph 27 and the last sentence of paragraph 28. I gave leave to the plaintiff to adduce oral evidence from the witness as to how he came to value the Moncur St property at $2.4m.
23 It was my intention to excise the valuation at $2.4m from the paragraph, allowing the balance of the paragraphs as some evidence of what the witness ascertained on inspection of the property and his methodology. The valuation itself would then be proffered in oral evidence. (It was anticipated that there would be an objection to that evidence. See Tr 1240.) Unfortunately, I omitted to notice that the figure of $2.4m also appears in the first sentence of paragraph 27 (which I allowed). It is too late to rectify that. However, in view of the evidence admitted later, nothing appears to turn on the mistake. (See later in this judgment.)
Paragraph 29
24 The whole of this paragraph was objected to. I disallowed the second and third sentences on the ground that they were merely arithmetic. I allowed the balance of the paragraph on the basis that the witness was sufficiently qualified to give that evidence.
PM2 (Oxford St), PM3 (Bourke St) & Moncur St
25 Mr Marsh had given evidence on the voir dire (Tr 1180-1) that his present opinion as to the value of the Oxford St, Bourke St and Moncur St properties and his reasons for those valuations were as recorded in his statement and in the annexures to it, which included the 1992 valuation reports relating to the Oxford St and Bourke St properties (PM2 & PM3).
26 Subsequently (at Tr 1256), the voir dire evidence was admitted as evidence in the cause subject to objection. I allowed this evidence pursuant to the relaxed approach to valuation evidence.
27 Further evidence was given orally by Mr Marsh concerning the basis for his valuation of the Moncur St property (Tr 1257).
28 I admitted the 1992 valuation reports concerning the Oxford St and Bourke St properties (PM2 & PM3) over objection (at Tr 1255). That was also pursuant to the relaxed approach to valuation evidence.
29 The evidence adduced in relation to the valuation of the Moncur St property was sufficient to make the witness’ opinion as to the value of that property admissible pursuant to the relaxed approach to valuation evidence.
Last Modified: 03/21/2003
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