Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 158

New South Wales District Court

CITATION: Tilley Air Conditioning Pty Limited v Traminer Pty Limited [2009] NSWDC 158

JUDGMENT DATE: 20 January 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: Refuse leave to relieve the first defendant of the provisions of r 31.28 of the Uniform Civil Procedure Rules 2005

CATCHWORDS: CIVIL LAW - objection to tender of affidavit - expert's report - requirements for service of experts' reports - update on exceptional circumstances

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 r 38.18 r 41.28

PARTIES: Tilley Air Conditioning Pty Limited Traminer Pty Limited

FILE NUMBER(S): 894/06

COUNSEL: Mr Bland (plaintiff) Mr Loewenstein (first defendant)

JUDGMENT

1 The first defendant, Traminer Industries Pty Ltd, through its counsel, Mr Loewenstein, is tendering an affidavit by Joseph Maric. The affidavit was sworn on 16 January 2009. It was served on the plaintiff's solicitors on the same day. The part heard proceedings in this case were resumed yesterday, Monday 19 January 2009.

2 Objection has been taken by Mr Bland, who appears for the plaintiff, to the tender of the affidavit. It is agreed by the parties - subject to one matter to which I will refer - that the affidavit which is tendered purports to be an expert's report as that is defined in r 38.18 of the Uniform Civil Procedure Rules 2005. Mr Bland has made it clear that his agreement to that proposition is not a concession that Mr Maric is an expert for the purposes of giving evidence on certain topics in this case. That concession is not forthcoming because Mr Bland is challenging the capacity of Mr Maric to give opinion evidence on certain specified topics.