Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors

[2007] NSWSC 685

CITATION:	Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 685
HEARING DATE(S):	25 June 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	25 June 2007
DECISION:	Opinion of architect director of a party admitted. Evidence of witness excluded as liable to cause undue waste of time.
CATCHWORDS:	EVIDENCE – Opinion – expert – whether architect qualified to give evidence of reasonable refurbishment of commercial building – Makita v Sprowles – whether basis of opinion sufficiently explained – EVIDENCE – valuation – where evidence tendered as to experience of noise in “comparable” apartment – where ample evidence already tendered of noise experience in more readily comparable apartments – undue waste of time
LEGISLATION CITED:	(NSW) Evidence Act 1995 s 135
CASES CITED:	Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
PARTIES:	Joan Street (first plaintiff) Ros Dwyer (second plaintiff) Michael Hesse (third plaintiff) Glen Eight Pty Ltd (fourth plaintiff) Susan Hesse (fifth plaintiff) Robert Simkin (sixth plaintiff) Glen Federick Billington (seventh plaintiff) Fiona Jeanette Billington (eighth plaintiff) Luna Park Sydney Pty Ltd (first defendant) Metro Edgley Pty Ltd (second defendant) Peter Hearne (third defendant) Warwick Doughty (fourth defendant)
FILE NUMBER(S):	SC 2267/05
COUNSEL:	Mr T Alexis SC w Ms P M Sibtain (plaintiffs) Mr T G Parker SC w Mr J A Potts (first & second defendants) Mr J R Clarke (third & fourth defendants)
SOLICITORS:	Wise Legal (plaintiffs) Clayton Utz (first and second defendants) Esplins (third and fourth defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday, 25 June 2007

2267/05 Joan Street & 7 Ors v Luna Park Sydney Pty Ltd & 3 Ors

JUDGMENT (ex tempore)
(as to admissibility of paragraphs 179 and 180 of affidavit of George Revay sworn 6 September 2006; transcript p 488)

1 HIS HONOUR: As I indicated on 15 June 2007, I take paragraph 179 of Mr Revay’s affidavit to express an opinion on his part as to what works would have been required to get the building to a commercially lettable standard. While I agree that such evidence might be given by someone with experience in the local market of what standard of fit-out tenants were demanding, I think it is obvious that proprietors of commercial buildings also consult architects as to what type of works should be conducted to optimize performance of their buildings. Accordingly, an architect may give evidence of what works he or she would recommend in that context.

2 Mr Revay’s affidavit of 21 June 2007 establishes that he has qualifications and experience as a builder, an architect and a developer of property, including of residential apartments and commercial premises. As Mr Parker SC points out, the relevant issue in this case is what would have happened had 8 Glen Street been retained as a commercial property and not converted to residential apartments. Although Mr Revay’s experience appears to be more focused on residential apartments than commercial premises, he is certainly not without experience in the refurbishment of commercial premises, as the second part of the list, headed Commercial, in paragraph 8 of that affidavit shows.

3 Mr Parker submits that to be qualified to give such evidence, a person would require significant experience in the Milsons Point area. That is rather akin to a submission that a valuer of property must have significant experience in the relevant local market. It seems to me that a valuer may be qualified to give an opinion of value, based upon valuation principles and having regard to relevant assumptions, without detailed knowledge of the local market – although knowledge of that market might well be a significant matter when it comes to weight. I am even less persuaded that an architect’s recommendations would be significantly dependant upon detailed knowledge of the local leasing market.

4 Accordingly, I think Mr Revay’s evidence in paragraph 179 of his affidavit, sworn 6 September 2006, is admissible, first, as evidence on behalf of the owner of the property as to what it would have done had the property been retained as commercial premises; and secondly, as opinion evidence by a person having appropriate qualifications and experience as to the reasonableness of those works on the assumption that the property was to be retained as a commercial property. Accordingly, I will admit paragraph 179 of the affidavit.

5 The objection to paragraph 180 is fundamentally a Makita objection, that the witness does not sufficiently explain the opinion on which his conclusion – that the costs of such works would have been $1.984 million – is founded. It seems to me that the assumptions on which the opinion is based are set out in paragraph 179, which identifies the works assumed to be required. The reasoning, by which the witness proceeds from that assumption to his conclusion as to their cost, is to be found in tab 77, which sets out, line-by-line, the various elements of the works which he considers would be required, and the quantities, units, and rates per unit involved.

6 In his affidavit of 21 June 2007, Mr Revay says that in preparing those estimates, regard was had to a number of sources. It is true that he does not identify, in respect of each line in tab 77, that any particular source was relied on. I take what he is saying to be an expression of opinion that the rates per unit set out in tab 77 were reasonable commercial rates at the relevant time, having regard to the various sources to which he has referred.

7 On that basis, in my view, the reasoning process he has followed to reach the conclusion he expressed about the cost of those works is sufficiently clear to justify the reception into evidence of paragraph 180, supported by tab 77.

8 I therefore admit paragraph 180 and tab 77 may be added to PX07.3.

At 10.47am (as to admissibility of lay noise evidence of Ms Street; transcript p 500)

9 HIS HONOUR: Up to this point, I have admitted lay noise evidence of residents of buildings other than the Azure on the limited basis that evidence of noise experienced in their apartments may inform an assessment of the experience and impact of noise in apartments in the Azure, and thus the effect which exposure to that noise would have on a prospective purchaser of an apartment in the Azure. That exercise, in turn, may inform the valuation of the Azure under the proposal which has in fact proceeded – namely, conversion to residential apartments – to be compared to the alternative of retaining it as a commercial property, which comparison may be the measure of Glen Eight’s damages.

10 In the case of the Billingtons, the Hesses and the Dwyers, I have admitted that evidence, notwithstanding that their apartments are somewhat more remote from the thrill rides located north of Coney Island than the apartments in the Azure, because a reasonable inference may be drawn, from the experience in their remoter apartments, that the experience in apartments closer to the source of the noise would be no less. In each of those cases it has not been suggested that there is any confusing element in drawing such an inference, occasioned by the impact of noise on those apartments from sources other than the relevant thrill rides.

11 Ms Street’s apartment, however, is, as the photographic evidence shows, as far to the south of the Azure as the Dwyers’ apartment is to the north. More significantly, Ms Street’s apartment is proximate to other noise sources in Luna Park, including a ride called the Tumblebug, which is located south of Coney Island. Using the experience in her apartment as a comparator for that in an apartment in the Azure would therefore have significant complexities that do not – at least on the evidence at this stage - arise in respect of the Billingtons, the Hesses or the Dwyers’ apartments.

12 There is ample evidence already available of the experience and impact of noise in apartments better capable of comparison with those in the Azure than Ms Street’s apartment. Admitting evidence of the experience in her apartment of the noise from Luna Park, complicated as it is by her exposure to noise sources other than the rides in question – for example, the Tumblebug – would unduly complicate what is already a collateral issue in the case.

13 Given the ample evidence on this topic already adduced from other sources, I do not think the plaintiffs suffer the slightest prejudice in not being able to rely on Ms Street for this evidence. I decline to admit the material re-tendered from Ms Street’s affidavit, on the basis that it will result in a undue waste of time, within (NSW) Evidence Act 1995, s 135(c).

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