Pearce v McCudden [1999] NSWSC 809 (29 July 1999)

Last Updated: 11 August 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Pearce v McCudden [1999] NSWSC 809

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3729/93

HEARING DATE{S): 29 July 1999

JUDGMENT DATE: 29/07/1999

PARTIES:

Kathryn Lynne Pearce (P)

Allan Leslie McCudden (D)

JUDGMENT OF: Hamilton J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

W J Tregilgas (P)

M R Errington (D)

SOLICITORS:

Ramsland Graham (P)

Malfanti & Kaye (D)

CATCHWORDS:

PROCEDURE [105] - Supreme Court - NSW - Procedure under SCR - Expert report tendered although not served within time limited by directions - No incurable prejudice.

ACTS CITED:

DECISION:

Use of expert report permitted although not served within time limited by directions.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

HAMILTON J

THURSDAY, 29 JULY 1999

3729/93 KATHRYN LYNNE PEARCE v ALLAN LESLIE McCUDDEN

JUDGMENT - Allowing plaintiff's application to lead further evidence (see T31)

HIS HONOUR:

1 There is tendered a report of Mr Brian Davis of Davis & Stewart, Certified Practising Accountants. The report is dated 28 July 1999. The report values shares in a company called Quintaz Pty Limited which is now the owner of businesses which originally were started by the plaintiff and the defendant during their de facto relationship. It does own another business, the initiation of which was subsequent to the termination of any relationship between the plaintiff and the defendant. There is also some evidence that the property at Kurri Kurri, in which at least one of the businesses is conducted, has been extended in some substantial way since the plaintiff's departure from the scene. Whilst it is by reference to the company's shares rather than the actual businesses themselves that Mr Davis makes a valuation, he has, in producing a value, made an allowance for the subsequently commenced business. In relation to the land and buildings, he has not specifically allowed for the building improvements, saying only that "it is expected that the current value for Land and Buildings would be more than that reflected in the Accounts".

2 Three objections are taken by Mr Errington, of counsel for the defendant, to this report. First, it is said that it is a valuation of something irrelevant, namely, shares in a company which was not on the scene when the plaintiff and the defendant were together. Secondly, he says that the evidence as to the value of any assets as at today, as opposed to their value as at the date of termination of the relationship, is totally irrelevant. Thirdly, he complains about the late service of this report, despite directions as to the service of affidavits and witness statements, and a direction that all evidence in chief in the case be by affidavit or witness statement. This document was first communicated to the defendant by being delivered to Mr Errington's chambers last evening.

3 As to the first objection, in the light of the fact that Mr Davis attempts to dissect out the relevant businesses, the valuation, even if technically of company shares, does convey an opinion as to the value of the businesses today, and I do not think the first objection is well founded. I should say in that regard, however, that the report may not prove in the end to be of great utility unless something more is heard in evidence about the improvements to the real estate and any difference in value effected by those improvements, which the plaintiff avowedly did not contribute to in any way.

4 As to the second objection, it is part of the plaintiff's case that the value of assets as at today is material to the orders that I shall make. Both counsel agree that that is a matter of legal contention and that the law is not entirely clear on this matter. As the value today is relevant to a case sought to be made out and which will be dealt with in final submissions, it seems to me that evidence as to this issue should be in, and in my view this evidence is relevant in the requisite sense. If, as a result of final submissions, I come to the view that evidence of value as at the present day cannot be taken into account, then, of course, this evidence will be disregarded. I therefore overrule the first and second objections taken to the material and rule that it is inherently admissible.

5 So far as the third objection is concerned, it is certainly regrettable that the material has been brought forward so late. Various things have been said from the bar table as to the cause of this. Evidence about those matters is not before me, and it is not appropriate that I come to any conclusion, or say anything, about them at this stage, save that, for whatever reason, the evidence is brought forward deplorably late. There is no suggestion from what has been said on either side that it is the plaintiff's personal fault that this is so. Certainly if evidence on this issue is pursued, it is likely that the case will not finish tomorrow, being the last day of the fixture made for it. I have already indicated that the state of my list will not permit the matter to be resumed this year and, if it does not finish tomorrow, it will be stood over to days to be fixed next year. Mr Errington responds to that by saying that the case would finish tomorrow, if this issue were not litigated, but I am far from certain that that is so. However, whether it is or not, in all the circumstances I think it is appropriate to permit this evidence in, although brought forward late; no irremediable prejudice has been put forward: see State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146. The grant of leave may have consequences in a special order for costs depending on how the proceedings are finally determined and depending, perhaps, on further evidence, if necessary, as to reasons for the matter being brought forward so late.

6 The result is that I propose to grant leave for the admission of the report into evidence but all questions of costs arising from the report being brought forward at a late time will be reserved. The report is admitted into evidence.

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LAST UPDATED: 06/08/1999