Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506

New South Wales Supreme Court

CITATION : Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 506

HEARING DATE(S) : 22/05/08

JUDGMENT DATE : 26 May 2008

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Leave under rule 31.28(3) refused

CATCHWORDS : PROCEDURE - adducing expert evidence - whether report "merely updates" earlier "expert's report" - whether "exceptional circumstances" shown to warrant service of expert's report out of time

LEGISLATION CITED : Uniform Civil Procedure Rules 2005, rules 31.18, 31.28 Evidence Act 1995, s 177

CATEGORY : Procedural and other rulings

Tim Barr Pty Limited - First Plaintiff PARTIES : Timothy James Barr - Second Plaintiff Narui Gold Coast Pty Limited - Defendant

FILE NUMBER(S) : SC 2762/02

COUNSEL : Mr R G McHugh SC/Mr J Lazarus - Plaintiffs Mr M L D Einfeld QC/Mr A Harding - Defendant

SOLICITORS : Corrs Chambers - Plaintiffs Verekers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

MONDAY, 26 MAY 2008

2762/02 TIM BARR PTY LIMITED v NARUI GOLD COAST PTY LIMITED JUDGMENT 1 These proceedings were commenced in the first half of 2002. They are large and complex. Ten days have been allocated for a hearing commencing on 16 June 2008. It has been indicated that ten days will not be enough. 2 I am now dealing with a notice of motion filed by the plaintiffs on 13 May 2008 and heard by me on 22 May 2008. The plaintiffs seek, in the alternative, a number of orders directed towards putting them into the position where they can introduce into evidence a document dated 28 April 2008 which is expressed to be a certificate by Mr Glazebrook, a town planner, under s 177 of the Evidence Act 1995. 3 The document has annexed to it a statement of opinion by Mr Glazebrook as to the reasons (related to an "existing use" exception) why he was of the opinion that there was requirement for development consent in relation to the establishment of a tea tree plantation on relevant land in 2001. Questions about the need for development consent (or, perhaps more precisely, persons' understandings about that) go to an issue about an alleged right to terminate a lease and a related question about relief against forfeiture. 4 It is accepted by the plaintiffs that, subject to one possible qualification, they require leave in order to be able to rely on Mr Glazebrook's report of 28 April 2008. The possibility that leave may not be required comes from rule 31.28(4)(b) of the Uniform Civil Procedure Rules 2005. I should set out rule 31.28 in full: " Disclosure of experts' reports and hospital reports (cf SCR Part 36, rule 13A; DCR Part 28, rule 8; LCR Part 23, rule 3)