Smith v Magi [2011] NSWSC 198

Supreme Court New South Wales

Medium Neutral Citation: Smith v Magi [2011] NSWSC 198 Hearing dates: 23 March 2011 Decision date: 25 March 2011 Before: Davies J Decision: (1) The applications contained in paragraphs 2 and 3 of the Defendant's Amended Notice of Motion filed 23 March 2011 are refused. (2) The Plaintiff is not permitted to rely on the report of Dr Guthridge of 8 April 2009. (3) Leave to the Plaintiff to serve a further report of Dr Guthridge in accordance with my reasons by 5pm 30 March 2011. (4) Reserve the costs of the Notice of Motion to be dealt with at the trial. Catchwords: PROCEDURE - expert evidence - leave to serve expert report - testamentary capacity case - small estate - late application by Defendant - principle of proportionality - application refused. Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Fletcher v Besser [2010] NSWCA 30 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Nominal Defendant v Manning (2000) 50 NSWLR 139 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49 Category: Interlocutory applications Parties: Jodie Smith (Plaintiff) Susan Gay Magi (Defendant Representation: Counsel: M Meek SC (Plaintiff) JJ Loofs (Defendant) Solicitors: Carroll & O'Dea (Plaintiff) Hartnett Lawyers (Defendant) File Number(s): 2010/9015