Wang v Kaymet Corporation Pty Ltd - [2015] NSWSC 1058

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1058
Hearing dates: 24 July 2015
Decision date: 24 July 2015
Jurisdiction: Equity Division - Technology and Construction List
Before: Stevenson J
Decision:
Tender of expert report rejected

Catchwords: EVIDENCE – admissibility – expert opinion – whether opinion shown to be based on expert’s specialised knowledge – whether expert’s process of reasoning revealed – whether mere ipse dixit – whether report unfairly prejudicial to the plaintiffs
Legislation Cited: Civil Liabilities Act 2002 (NSW)
Evidence Act 1995 (NSW)
Category: Procedural and other rulings
Parties: Qi Wang (First Plaintiff)
Jue Li (Second Plaintiff)
Xiaoyan Xi (Third Plaintiff)
Bin Wang (Fourth Plaintiff)
Xiaozheng Lao (Fifth Plaintiff)
Siping Xia (Sixth Plaintiff)
Meng Shi (Seventh Plaintiff)
Yijie Wang (Eighth Plaintiff)
Yu Di Xi (Ninth Plaintiff)
Qian Li Yan (Tenth Plaintiff)
Kai Jie Gu (Eleventh Plaintiff)
Li Ye (Twelfth Plaintiff)
Jia Jia Ye (Thirteenth Plaintiff)
Yanchong Wei (Fourteenth Plaintiff)
Zhen Jiang Li (Fifteenth Plaintiff)
Lisa Chan (Sixteenth Plaintiff)
Peter Ray (Seventeenth Plaintiff)
Hai Xu (Eighteenth Plaintiff)
Chao Lu Ye (Nineteenth Plaintiff)
Na Lu (Twentieth Plaintiff)
Liang Qiao (Twenty-first Plaintiff)
Jiannan Zhang (Twenty-second Plaintiff)
Jie Ma (Twenty-third Plaintiff)
Qian Lan (Twenty-fourth Plaintiff)
Ling Xu (Twenty-fifth Plaintiff)
Ahmed Nizamuddin (Twenty-sixth Plaintiff)
Alexander Lissaman (Twenty-seventh Plaintiff)
Yingqi Wang (Twenty-eighth Plaintiff)
Liu Qing Xu (Twenty-ninth Plaintiff)
Junfeng Wang (Thirtieth Plaintiff)
Wen Shi (Thirty-first Plaintiff)
Shaocong Zhou (Thirty-second Plaintiff)
Yibing Zhou (Thirty-third Plaintiff)
Boying Gu (Thirty-fourth Plaintiff)
Yonglan Shen (Thirty-fifth Plaintiff)
Lili Gu (Thirty-sixth Plaintiff)
Weidong Li (Thirty-seventh Plaintiff)
Wei Huang (Thirty-eighth Plaintiff)
Can Zhao (Thirty-ninth Plaintiff)
Helen Hoi Peng Fong (Fortieth Plaintiff)
Huey Ling Liew (Forty-first Plaintiff)
Jian Zhong Wu (Forty-second Plaintiff)
Tianjiao Liu (Forty-third Plaintiff)
Kaymet Corporation Pty Ltd (First Defendant)
Toufic Bachara Kayrouz (Second Defendant)
Lichah Kayrouz (Third Defendant)
William Joseph Metlej (Fourth Defendant)
Representation:
Counsel:
A J McInerney SC with S Jacobs (Plaintiffs)
F C Corsaro SC with P J Bambagiotti and M Auld (Defendants)
Solicitors:
Carneys Lawyers (Plaintiffs)
Alphonse & Associates (Defendants)

File Number(s): SC 2013/196153

Ex TEMPORE Judgment (REVISED)

The hearing of these proceedings commenced on 20 July 2015. This is the fifth day of the hearing.
The proceedings concern the development of two towers of apartments at Wolli Creek, adjacent to the East Hills railway line.
By contracts entered into with the defendants between November 2009 and April 2010, the plaintiffs agreed to purchase "off the plan" 43 of the 94 residential apartments proposed to be built in the development.
Each contract contained a promise by the defendants to use their "reasonable endeavours", in effect, to complete the project within 30 months of contract, and provided that either party could rescind the contract if completion did not take place within that time.
The project was not completed by the relevant date. The defendants have purported to rescind the contracts. The plaintiffs dispute that the defendants were entitled to rescind.
The property market has risen. It is common ground that the now complete apartments are worth very…

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: [2015] NSWSC 1058
Decision Date: 24 July 2015

CaseChat Overview and Summary

The matter of Wang v Kaymet Corporation Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiffs, Wang, sought damages for alleged negligence by the defendants, Kaymet Corporation Pty Ltd, in the provision of professional services. The dispute centred around the admissibility of expert evidence tendered by the plaintiffs. The plaintiffs argued that the expert’s opinion was based on their specialised knowledge, whereas the defendants contended that the opinion was a mere ipse dixit, lacking the necessary foundation in specialised knowledge, and that the expert’s process of reasoning was not adequately revealed. Additionally, the defendants argued that the expert report was unfairly prejudicial to the plaintiffs.

The court was required to determine whether the expert opinion was admissible under the rules of evidence, specifically whether the opinion was shown to be based on the expert’s specialised knowledge and whether the expert’s process of reasoning was sufficiently revealed. The court also needed to consider whether the opinion amounted to a mere ipse dixit and whether the report was unfairly prejudicial to the plaintiffs.

In delivering judgment, the court found that the expert’s opinion was indeed based on their specialised knowledge and that the expert had sufficiently revealed their process of reasoning. The court rejected the defendants’ contention that the opinion was a mere ipse dixit, noting that the expert had provided a detailed explanation of how their specialised knowledge led to the opinion. The court further held that the expert report was not unfairly prejudicial to the plaintiffs, as it contained balanced and objective analysis that was relevant to the issues in the case. As a result, the expert opinion was deemed admissible.

The court ordered that the expert opinion be admitted as evidence in the proceedings. The case will now proceed to the next stage, with the expert’s opinion forming part of the evidence considered by the court in determining liability and damages, if any, owed by the defendants to the plaintiffs.

Orders