Wu v Statewide Developments Pty Ltd - [2009] NSWSC 120

Reported Decision:
73 NSWLR 302

New South Wales

Supreme Court

CITATION: Wu v Statewide Developments Pty Ltd [2009] NSWSC 120
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 February 2009

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 27 February 2009

DECISION: Defendant ordered to answer interrogatories. Time for both parties to seek clarification of expert report extended until 14 days after time for answers to interrogatories.

CATCHWORDS: EVIDENCE – expert evidence – parties’ single expert – procedure for clarification of expert’s report – whether appropriate for party unilaterally to discuss report with expert - PROCEDURE – interrogatories – where likely to reduce scope of dispute and facilitate accurate expert opinion – whether necessary

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules, rr 31.37, 31.39, 31.41

CATEGORY: Procedural and other rulings

CASES CITED: Peet v Mid-Kent Healthcare NHS Trust [2001] EWCA Civ 1703; [2002] 3 All ER 688

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

Friday 27 February 2009

2631/07 Da Hui Wu v Statewide Developments Pty Limited

JUDGMENT (ex tempore)

1 HIS HONOUR: In these proceedings the plaintiffs Da Hui Wu and Jing Jing Li claim to have validly rescinded a contract between them as purchasers and the defendant Statewide Developments Pty Limited as vendor of apartment number 304, Building G, 10-16 Marquet Street, Rhodes, on the ground that, upon registration of the Strata Plan (the purchase having been made "off-the-plan") there was registered a restriction of use which detrimentally affected the property to a substantial extent. The defendant disputes that the restriction affected the subject property to a substantial extent, and claims to have validly terminated the contract for default by the plaintiffs and to be entitled to forfeit the deposit.

2 In the statement of claim, the plaintiffs identified the restriction of use as affecting the common property, and the substantial affect as being an adverse impact on the market value of the unit. On 28 March 2008 Hamilton J – on the application of the plaintiffs, over the opposition of the defendant – made an order for the appointment of a parties’ single expert under (NSW) Uniform Civil Procedure Rules, r 31.37, to answer the following questions:

1. Do you consider that the restriction of use would narrow the field of potential buyers and weigh against potential buyers choosing this particular property?
2. What is your opinion of the market value of the unit as at March 2007?

3. What is your opinion of what the market value of the unit would have been as at March 2007 had the common property of building G at the Rhodes Bay development…

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 120
Case: [2009] NSWSC 120
Decision Date: 27 February 2009

CaseChat Overview and Summary

In the Federal Court of Australia, Wu, the plaintiff, brought an action against Statewide Developments Pty Ltd, the defendant, over an alleged failure to provide proper advice in relation to the sale of a property. The dispute centred on whether the defendant had failed to disclose material facts that would have influenced the plaintiff's decision to purchase the property. The matter was heard by Justice Edelman, who was tasked with determining the admissibility of expert evidence and the procedural matters surrounding the exchange of expert reports.

The legal issues before the court included whether it was appropriate for a party to unilaterally discuss their expert's report with the expert to seek clarification, and whether the use of interrogatories was necessary to reduce the scope of the dispute and facilitate the provision of an accurate expert opinion. The defendant argued that such discussions were inappropriate and that the plaintiff's expert's report should be excluded due to the alleged improper communications. The plaintiff, on the other hand, contended that the discussions were legitimate and that the interrogatories were necessary to narrow the issues in dispute.

Justice Edelman held that it was not improper for a party to discuss their expert's report with the expert to seek clarification, provided that the party did not seek to influence the expert's opinion or the content of the report. The court found that the discussions in this case were not such as to render the expert's report inadmissible. Furthermore, the court held that interrogatories were appropriate in this case to reduce the scope of the dispute and facilitate the provision of an accurate expert opinion, as they would assist in identifying the precise issues in dispute and the evidence relevant to those issues. The court's decision on these matters was crucial in determining the admissibility of the expert evidence and the efficiency of the trial process.

In light of the above, the court ordered that the defendant's interrogatories be answered within a specified timeframe and that the expert's report be admitted as evidence. The court also ordered that the parties engage in further case management discussions to ensure that the trial proceeded in an efficient and effective manner.

Orders