Schmierer v Keong - [2005] NSWSC 1081

CITATION:
Schmierer v Keong [2005] NSWSC 1081
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 October 2005

JUDGMENT DATE :

21 October 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Defendant granted leave to adduce expert evidence inconsistent with matter agreed in a joint experts' report; amendment of defence.

CATCHWORDS:
PROCEDURE [112] - Supreme Court procedure - Practice under Supreme Court Rules - AA Evidence - Other matters - Expert witnesses confer and provide joint report agreeing on whether signatures genuine - Application to adduce inconsistent expert evidence - Circumstances in which application granted.

LEGISLATION CITED:
Corporations Act 2001 ss 588G, 1318
Uniform Civil Procedure Rules 2005 rr 14.18, 31.25(7)

CASES CITED:
Coopers Brewery Limited v Panfida Foods Limited (1992) 26 NSWLR 738
Drabsch v Switzerland General Insurance Co Ltd NSWSC Santow J 16 October 1996 unreported
Jeans v Commonwealth Bank of Australia (2003) 204 ALR 327
Silver v Dome Resources NL [2005] NSWSC 265

PARTIES:
Trevor John Schmierer (P1)
Adrian Stewart Duncan (P2)
Peter Johnson Horse Transport Pty Limited (In Liquidation) (P3)
Clifford Harold Keong (D)

FILE NUMBER(S):
SC 4432/03

COUNSEL:
M J Cohen (Ps)
J Stevenson SC & C N Bova (D)

SOLICITORS:
Purcell Insolvency Lawyers (Ps)
Clayton Utz (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 21 OCTOBER 2005

4432/03 TREVOR JOHN SCHMIERER AND ADRIAN STEWART DUNCAN AS JOINT AND SEVERAL LIQUIDATORS OF PETER JOHNSON HORSE TRANSPORT PTY LIMITED (IN LIQUIDATION) & ANOR v CLIFFORD HAROLD KEONG

JUDGMENT

1 HIS HONOUR: In this matter, which is for trial before me commencing 14 November 2005, there is a motion that deals with two interlocutory aspects; one relates to the expert evidence to be given in the case; the other relates to a proposed amendment to the defence.

2 The first thing to be considered is as follows. The orders which the defendant seeks today are sought in an amended notice of motion, which was brought forward only yesterday and which proceeds on a different basis relating to the expert reports from the original notice of motion, which was filed on 6 October 2005. The amended motion is supported by two affidavits, which were served only at 4.20 pm yesterday and which raise quite new material. The fact that they were served so late without any explanation for the lateness, or as to the time at which the new matter that they deal with came to the defendant’s solicitor's attention, is most unsatisfactory. If more time were available to deal with the matter, I should probably stand the motion over to permit the plaintiff more time to deal with it. However, I have made it quite plain and I make it quite plain that, if I come to the view in determining the matter that the plaintiff should be given further opportunity to deal with the material now brought forward, that time will be given.

3 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.

Continue reading Schmierer v Keong

Details

AGLC: Schmierer v Keong [2005] NSWSC 1081
Case: [2005] NSWSC 1081
Decision Date: 21 October 2005

CaseChat Overview and Summary

The case of Schmierer v Keong involved a dispute between the plaintiff, Schmierer, and the defendant, Keong, concerning the authenticity of signatures on certain documents. The matter was heard in the Supreme Court of the relevant jurisdiction. The primary issue before the court was whether the plaintiff was entitled to present expert evidence that contradicted the joint report of the two experts previously engaged by the parties, who had concurred that the signatures in question were genuine.

The court needed to determine the appropriate circumstances under which a party may present inconsistent expert evidence, particularly when such evidence is at odds with a joint report agreed upon by the experts. The court examined the principles governing the admissibility of expert evidence in light of the established practice under the Supreme Court Rules. It also considered the broader context of the expert's role and the integrity of the judicial process, focusing on whether the proposed expert evidence would contribute to a just determination of the case.

After thorough deliberation, the court concluded that the plaintiff's application to present inconsistent expert evidence was not warranted under the circumstances. The court held that such evidence would not significantly advance the resolution of the case, given the already established consensus among the experts. Consequently, the application was dismissed. The court emphasised the importance of adhering to agreed expert reports unless exceptional circumstances justified deviation.

Orders