Chvojan v Hydrofield International Marine Pty Ltd [2003] NSWSC 1219

New South Wales Supreme Court

CITATION : Chvojan v Hydrofield International Marine Pty Ltd [2003] NSWSC 1219 HEARING DATE(S) : 15 December 2003 JUDGMENT DATE : 15 December 2003 JURISDICTION: Common Law JUDGMENT OF : Hamilton J DECISION : Compliance with expert witness code of conduct dispensed with.

CATCHWORDS : EVIDENCE [56] - Admissibility and relevancy- Opinion evidence - Expert opinion - Qualifications of witness - Compliance with expert witness code of conduct - Dispensation with compliance. LEGISLATION CITED : Supreme Court Rules 1970 Part 36 r 13C Erwin Andreas Chvojan (P1) PARTIES : Kym Cheryl Chvojan-Smith (P2) Hydrofield International Marine Pty Ltd (D1) Leon Field (D2) FILE NUMBER(S) : SC 12186/02 COUNSEL : M Boulton (Ps) No appearance (Ds) SOLICITORS : McNamara & James (Ps) No appearance (Ds)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HAMILTON J

MONDAY, 15 DECEMBER 2003

12186/02 ERWIN ANDREAS CHVOJAN & ANOR v HYDROFIELD INTERNATIONAL MARINE PTY LIMITED & ANOR

JUDGMENT 1 HIS HONOUR: This is the trial of proceedings in the Common Law Division arising out of the occupation by the defendants of a piece of land owned by the plaintiffs at Halfway Creek on the North Coast of New South Wales ("the premises"). That occupation was for the purpose of building a boat or boats. It commenced in about April or May 2000 and terminated on 3 February 2003, when the key to the premises was surrendered by the second defendant to the plaintiffs' solicitors. That the occupation was by both defendants is made plain in par 9 of the defendants' defence. As well as claiming possession of the land the plaintiffs claimed mesne profits. The defendants' solicitors filed a notice of ceasing to act on 30 April 2003. Prior to that, on 24 March 2003, the second defendant had sent a letter to the plaintiffs' solicitors by facsimile transmission in which it was made plain that the defendants no longer intended to defend the proceedings. That letter is also significant because it gives as the defendants' address 2/71 Bridge Street, Uralla. 71 Bridge Street, Uralla is also specified in the notice of ceasing to act as the address of the defendants last known to their solicitors. The defendants have not since that time taken any part in the proceedings. No more recent address is known to the plaintiffs. The plaintiffs' solicitors have informed the defendants of the hearing today by letter sent to that address. There is no suggestion the letter has been returned. The defendants have not appeared when called outside the Court this morning. I have proceeded to hear the matter in their absence. 2 The greatest problem with finalising the matter today is that the evidence brought forward by the plaintiffs to quantify their mesne profits is two reports or assessments of Mr A M Gough, a real estate agent of Grafton. The original report placed a rental value of $16,000 per annum on the use of 75 percent of the property and a subsequent report placed an estimate of $20,000 per annum on the use of 95 percent of the property. The second defendant, who is also the sole director of the first defendant, admitted use of 75 percent of the premises while the defendants were in occupation. However, the first plaintiff in evidence estimates that he occupied no more than 5 percent of the premises, leaving 95 percent for occupation by the defendants, and there is no reason why I should not accept his evidence. Mr Gough does not set out his qualifications at any length, although he does describe himself as a real estate valuer. I am prepared to take it in the circumstances that he has the qualifications to express the opinions that he has. The difficulty is that his evidence does not comply with Part 36 r 13C of the Supreme Court Rules 1970 ("the SCR"). The Court has power to dispense with compliance with the rule. But the rule is of considerable importance and I am somewhat loath to dispense with it. However, the circumstances of this case include the fact that this is its second fixture for trial, the first having been aborted by reason of the Court's failure to send a notice of the hearing to the defendants personally, although the solicitor had filed a notice of ceasing to act. They continue not to defend the case and the amount involved is small. In all the circumstances, I am prepared to dispense with compliance with Part 36 r 13C to permit the evidence to be used to establish the amount in which the plaintiffs are entitled to a judgment for mesne profits. 3 The calculation that has been made by the plaintiffs' counsel of the amount in which they are entitled to judgment on the evidence is set out in Exhibit C and totals $14,435.47, being $13,040.02 in respect of the period of occupation from 11 June 2002 to 3 February 2003, together with interest calculated as shown in that Exhibit. In the circumstances, I am prepared to give judgment for the plaintiffs for mesne profits and interest in the total sum of $14,435.47. 4 The plaintiffs also ask for an order for the costs of the proceedings generally and without any diminution of those costs by reference to the small amount in which judgment has been entered in their favour for mesne profits, especially bearing in mind that an order for possession was not in the end sought by reason of the surrender of the land on 3 February 2003. The amount is indeed trifling in relation to the value of the subject matter of proceedings usually conducted in this Court. However, bearing in mind that the action for possession could be brought only in this Court; that the claim for mesne profits was an integral part of these proceedings; that the defendants defended the proceedings up to the time when they surrendered possession and abandoned their defence in February/March 2003; and that there was really no other forum in which the plaintiffs could thereafter realistically maintain their claim for mesne profits, I think it proper that the plaintiffs should simply have an order for costs in their favour in unqualified terms. 5 Not only do the plaintiffs ask that there be no diminution of the ordinary order for costs but they ask for an order for costs on the indemnity basis from March 2003 on the basis of an offer of compromise under Part 22 of the SCR sent to the defendants' solicitors under cover of a letter dated 6 March 2003. That letter offered to accept judgment in the sum of $9,750 plus costs but inclusive of interest in settlement of the balance of the proceedings. The offer of $9,750 is less than the amount which has been assessed on this hearing as payable for mesne profits without interest up to the surrender of the property on 3 February 2003. In those circumstances, it does seem appropriate that costs after the offer of compromise should be awarded on the indemnity basis. It seems to me that the offer should have been accepted during the 30 day period for which it was open and I propose to order indemnity costs as and from Monday 7 April 2003. 6 The orders of the Court will, therefore, be: