Wu v Statewide Developments Pty Ltd - [2009] NSWSC 587

CITATION: Wu v Statewide Developments Pty Ltd [2009] NSWSC 587

HEARING DATE(S): 26 May 2009

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 26 May 2009

DECISION: Plaintiff (and also defendant) may obtain separate expert report - reserve for later consideration whether leave will be granted to adduce report – reserve for trial judge whether plaintiff should regardless of outcome, pay extra costs incurred by both sides as a result of additional experts.

CATCHWORDS: EVIDENCE - Expert evidence – single expert – application for leave to obtain report – where single expert evidence already obtained under UCPR r 31.37 - where issue on which evidence sought is central - relevant considerations

LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 52
(NSW) Uniform Civil Procedure Rules 2005, r 31.37, r 31.44

CATEGORY: Procedural and other rulings

CASES CITED: Cosgrove v Pattison [2001] CP Rep 68, [2000] All ER (D) 2007
Daniels v Walker [2000] 1 WLR 1382
Tomko v Tomko [2007] NSWSC 1486
Wu v Statewide Developments Pty Ltd [2009] NSWSC

PARTIES: Da Hui Wu (first plaintiff)
Jing Jing Li (second plaintiff)
Statewide Developments Pty Ltd (defendant)

FILE NUMBER(S): SC 2631/07

COUNSEL: Mr S Brennan (plaintiffs)
Mr J Stoljar SC (defendant)

SOLICITORS: Gregory J Goold (plaintiffs)
Mallesons Stephen Jaques (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Tuesday 26 May 2009

2631/07 Da Hui Wu & Anor v Statewide Developments Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: By their Statement of Claim, the plaintiffs assert that they have validly rescinded a contract made between them as purchasers and the defendant Statewide Developments Pty Limited as vendor of apartment 304, Building G, 10-16 Marquet Street, Rhodes, which was at the date of the contract an unregistered plan, on the ground that a restriction on use had been registered on the Certificate of Title of each strata unit in the building, including the unit the subject of the contract, which detrimentally affected the property to a substantial extent. That detrimental effect was particularised as being that the restriction required the owners to comply with its terms, and that its existence on the Certificate of Title of the common property adversely affected the market value of the unit.

2 Although claims are also made for breach of contract and misleading and deceptive conduct, the substance of the claim is one for the return of the deposit. It is an essential part of that claim to establish that the restriction detrimentally affected the property to a substantial extent. To the extent that relief is sought for misleading and deceptive conduct, or under (NSW) Conveyancing Act 1919, s 52 it would also be relevant to show that the restriction had a substantial detrimental effect on the property the subject of the contract. I, therefore, accept that the question of substantial detrimental affectation is a central issue in the case, and that the impact of the restriction on the value of 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 Wu v Statewide Developments Pty Ltd

Details

AGLC: Wu v Statewide Developments Pty Ltd [2009] NSWSC 587
Case: [2009] NSWSC 587
Decision Date: 26 May 2009

CaseChat Overview and Summary

The case involved Wu, the plaintiff, and Statewide Developments Pty Ltd, the defendant, with the dispute centred on the admissibility of additional expert evidence in a legal proceeding before the Supreme Court of New South Wales. The central issue was whether the plaintiff was entitled to obtain a second expert report from a specialist in a particular field, despite having already obtained a report under the relevant rules of court. The core legal question was whether the application for additional expert evidence was justified when the existing evidence was from a single expert, and the new evidence pertained to a pivotal issue in the case.

The court examined the circumstances under which additional expert evidence could be obtained, focusing on the rules and precedents governing such applications. It considered the importance of the issue in question, the availability of the expert, and the necessity of the additional evidence to ensure a fair trial. The court held that the application for additional expert evidence could be permissible if the issue was central to the case, the existing evidence was from a single expert, and there were compelling reasons for obtaining further expert opinion. In this case, the court found that the plaintiff had demonstrated a sufficient basis for the application, given the critical nature of the issue and the potential impact on the outcome of the case.

Consequently, the court granted leave for the plaintiff to obtain the additional expert report. The decision underscores the importance of ensuring that all parties have adequate expert evidence to present their cases fairly, particularly when the issue in question is of significant importance. The court's reasoning highlights the balance between the need for comprehensive expert analysis and the practical limitations imposed by court rules. The final orders of the court allowed the plaintiff to proceed with obtaining the additional expert report, ensuring that the trial could be conducted with the necessary level of expert input.

Orders