Paino v Paino - [2005] NSWSC 1313

CITATION:
Paino v Paino [2005] NSWSC 1313

HEARING DATE(S): 07/06/05, 08/06/05, 09/06/05, 10/06/05, 15/06/05, 16/06/05, 17/06/05, 21/06/05, 22/06/05, 23/06/05, 24/06/05, 28/06/05, 29/06/05, 07/07/05, 05/07/05, 06/07/05, 12/07/05, 29/07/05, 13/12/05

JUDGMENT DATE :

13 December 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Report rejected

CATCHWORDS:
EVIDENCE - opinion evidence - valuation of foreign land - valuation report by two persons - evidence given by only one person, being person accepted as having relevant qualifications and experience - no indication of which parts of joint report attributable to each person - opportunity given for witness to be examined as to parts of report for which he is solely responsible - no satisfactory identification of such parts - report rejected

LEGISLATION CITED:
Evidence Act 1995, s.79

CASES CITED:
Cooke v Commissioner of Taxation (2002) 51 ATR 223
Cooke v Commissioner of Taxation (2004) 55 ATR 183

PARTIES:
Angela Paino - Plaintiff
Salvatore Paino - Defendant

FILE NUMBER(S):
SC 5612/01

COUNSEL:
Mr I.G. Harrison SC/Mrs M.T. Bridger - Plaintiff
Mr P. Hallen SC/Mr J.J. Millar - Defendant

SOLICITORS:
Kells The Lawyers - Plaintiff
Meyer Pigdon - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY, 13 DECEMBER 2005

5612/01 - ANGELA PAINO v SALVATORE PAINO

JUDGMENT - On application to reject joint report of Mr Natoli and Mr Fumia. See p927 of transcript

1 Cross-examination of Mr Natoli has begun. Its early stages have concentrated on matters concerning instructions he was given and methodology he applied in the preparation of the report on the value of land on the island of Filicudi which is, according to its terms, a joint report of Mr Natoli and Mr Fumia. Both have signed it. However, there is an affidavit of Mr Natoli only and, as I understand the position, the plaintiff has elected not to seek to press Mr Fumia’s qualifications to express expert opinions in the field of property valuation with which the report is concerned. It is not proposed to lead evidence of Mr Fumia.

2 After the cross-examination of Mr Natoli had reached a certain point, counsel for the defendant made an application that the whole of the report be rejected.

3 The problem, as the defendant sees it, is that the second author of the report, Mr Fumia, has not complied with schedule K as in force at the date of the report or with schedule 7 as it now is and has not been shown to have relevant qualifications or expertise. Furthermore, the collaboration between Mr Natoli and Mr Fuimia has been such that the integrity of the expert's opinion, being the opinion of Mr Natoli, is called into question, since one cannot say which parts of the report have come from him and which have come from the co-author. The defendant says that he is prejudiced by the inability to know which matters are the work product of which author.

4 The plaintiff says, in response, that the fact that this is…

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 Paino v Paino

Details

AGLC: Paino v Paino [2005] NSWSC 1313
Case: [2005] NSWSC 1313
Decision Date: 13 December 2005

CaseChat Overview and Summary

The parties involved in this case were Paino and Paino. The dispute pertained to the valuation of foreign land, with the crux of the matter being the admissibility of a valuation report prepared by two individuals. The court in question was the Supreme Court of Victoria. The legal issues that needed to be resolved centred around the admissibility of the joint valuation report and whether it could be considered reliable evidence when only one of the two authors was available to testify.

The court had to determine if the report could be admitted into evidence despite only one author being present to provide testimony. The report in question was prepared by two individuals, but only one of them testified. The court needed to assess whether this was sufficient for the report to be considered reliable evidence, especially considering that it was not clear which parts of the report were attributable to each author. The court also had to decide whether the opportunity provided to examine the witness about the parts of the report for which he was solely responsible was adequate.

The court concluded that the report could not be admitted as evidence because it was not possible to ascertain which parts of the report were attributable to the testifying author. The court held that the lack of clarity regarding the authorship of specific sections of the report meant that the report could not be relied upon as a whole. Additionally, despite the opportunity to cross-examine the testifying author, it was not possible to satisfactorily identify which parts of the report he was responsible for. Therefore, the court rejected the report as insufficient evidence. As a result, the court ruled that the report could not be admitted as evidence in the case.

Orders