Seiwa Pty Ltd v Owners Strata Plan 35042 [2007] NSWSC 232

New South Wales Supreme Court

CITATION : Seiwa Pty Ltd v Owners Strata Plan 35042 [2007] NSWSC 232 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 16 February 2007 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 16 February 2007

DECISION : Application to substitute monetary judgment dismissed.

CATCHWORDS : JUDGMENTS & ORDERS – enforcement – where leave reserved to plaintiff to apply for substitution of monetary judgment if mandatory injunction not performed – discretionary consideration.

PARTIES : Seiwa Pty Ltd (plaintiff) Owners Strata Plan 35042 (defendant)

FILE NUMBER(S) : SC 4205/05

COUNSEL : M W Young (plaintiff) M a Bradford (defendant)

SOLICITORS : Dixon Holmes du Pont Lawyers (plaintiff) Alex Ilkin & Co (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 16 February 2007

4205/05 Seiwa Australia Pty Ltd v Owners Strata Plan No 35042 JUDGMENT (ex tempore – on admissibility of report) 1 HIS HONOUR: Objection is taken to the report of W L Ryan on the basis that it is annexed to an affidavit of Donald Martin Junn and not to an affidavit of Mr Ryan. 2 While, as a matter of form, there is some validity in that objection, the report itself is Mr Ryan's own report over his own signature and is not, in that sense, hearsay. If Mr Ryan were required for cross-examination, the practical course was to give a notice indicating that he was required for cross-examination and that if he were not produced then objection would be taken to the admissibility of his report. 3 It seems to me that there is very slight factual contest between the facts deposed to by Mr Ryan in his report and those deposed to by Mr Halliday. To the extent that there is any contest, I note that Mr Halliday is available for cross-examination and the opportunity of cross-examination has been offered and not exercised. 4 Save for one matter to which I will come, I do not think that there is any significant prejudice to the defendant in admitting Mr Ryan's report. In that conclusion I am fortified by the circumstance that he was, in a sense, appointed by the court to carry out the test and although his report is not addressed to the court, he is, in a sense, acting somewhat like a court expert and reporting on what he has done in pursuance of the order. 5 In his report Mr Ryan offers an opinion as to the cause of water ingress into unit 13 below the subject unit. As I understand his report, the area of that ingress is beneath part of the patio of unit 14 which was not tested on the original water test. In any event, Mr Ryan's opinion at the original hearing was that that area did not require to be repaired. I do not see how on the present application his opinion as to the cause of the ingress into unit 13 is relevant and, in any event, the defendant has not had an opportunity to respond to that opinion. 6 I reject paragraph 2 under the sub-heading "Opinion" in Mr Ryan's report. I otherwise admit the report.