ADMONT HOLDINGS PTY LTD v LOWE [1989] NSWCA 238

ADMONT HOLDINGS PTY LTD v LOWE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MAHONEY JJA 14-15 September 1989, 17 October 1989

[1989] NSWCA 238

FRAUD — deceit — inducement to enter sublease of rural property — representations made to proposed sub-lessees — whether representations fraudulent — whether properly proved to correct standard of proof — whether sustained by an analysis of the evidence — whether sustained by findings of the trial judge as to the credit of witnesses — whether inducement proved where several considerations (including inspections on site) contributed to the entry into the sublease — rural land leased during drought for grazing and farming — area of land normally swamp dried up — sub-lessees disclose purposes to sub-lessor — disputed representations made as to the extent of land available for grazing and farming — trial judge believes sub-lessees — appeal — held: (1) Having regard to the findings of the trial judge on the credit of the respective parties, the finding of inducement could only be set aside if it was "glaringly improbable".

PRACTICE AND PROCEDURE — expert report — provision on day of trial — no application for adjournment — no objection to tender — no application to delay cross-examination — no application to trial judge to exercise his discretion to exclude evidence — appeal on the ground that trial miscarried by reason of admission of report — held: (1) It is the duty of counsel to protect their clients by recording any objections to lately provided expert reports which should be exchanged before trial; (2) At least in the circumstances of the present case, the failure to do so was fatal to the subsequent contention that the trial miscarried; (3) The suggestion that the trial judge had an independent duty in the circumstances to exclude the report and evidence where the parties did not ask him to do so, doubted.