Barak v WTH [2002] NSWSC 649

New South Wales Supreme Court

CITATION : Barak v WTH [2002] NSWSC 649 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 5151/01; 4558/01 HEARING DATE(S) : 22/07/02 JUDGMENT DATE : 22 July 2002

PARTIES : Barak Pty Limited - Plaintiff WTH Pty Limited trading as Avis Australia - Defendant JUDGMENT OF : Barrett J

COUNSEL : Mr L G Foster SC/Mr Mr R A Parsons - Plaintiff Mr J O Anderson/Mr S Hughes - Defendant SOLICITORS : Norbert Lipton & Co - Plaintiff Freehills - DefendantRefer CATCHWORDS : PROCEDURE - report of expert - statement of awareness of and agreement to be bound by experts' code of conduct not included - expert satisfactorily examined on those matters - order displacing para (b) of Pt 36 r 13C(2) DECISION : Refer paragraph 5

- 2 - IN THE SUPREME COURT REVISED OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

MONDAY 22 JULY 2002

5151/01 - BARAK PTY LIMITED v WTH PTY LIMITED TRADING AS AVIS AUSTRALIA

4558/01 - BARAK PTY LIMITED v WTH PTY LIMITED TRADING AS AVIS AUSTRALIA

JUDGMENT - on admissibility under Pt 36 r 13C(2), see p 20 of transcript

1 The plaintiff has filed and served an affidavit of Mr Byrnes, a consulting architect and planner, to which is annexed a report by him which does not contain an acknowledgement by him that he has read the code of conduct in Schedule K to the Supreme Court Rules and agrees to be bound by it. 2 The defendant, relying on Pt 36 r 13C(2)(b), submitted that service of the report was not valid service and that the report should not be admitted into evidence. 3 Mr Byrnes has given oral evidence. I gave leave for him to be examined on matters relevant to the defendant's objection. Immediately after being sworn, and also at the end of his evidence, he was examined about the code of conduct as follows: "Q. Are you aware of the requirements of the Experts' Code of Conduct that is laid down in the rules of this Court? A. Yes, I am. Q. I think they are set out in schedule K. Have you read schedule K? A. Yes, I have. Q. Were you are of schedule K prior to swearing your affidavit? A. Yes, I was. Q. In approaching the material that is set out in your affidavit, did you comply with schedule K to the best of your ability? A. I did."