Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 Hearing dates: 4 August 2011 Decision date: 15 September 2011 Before: Beazley JA at [1]; Young JA at [2]; Handley AJA at [80] Decision: (1) Grant leave to the appellant to appeal, such order to have effect as of 4 August 2011. (2) Stand over to 30 September 2011 for short minutes to be brought in allowing appeal and remitting for retrial and costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE- appellant, litigant in person, was not allowed to tender any evidence at trial as the expert evidence did not comply with UCPR r31.23- whether trial judge should have adjourned or otherwise ordered under r31.23(3)- r31.23(3) does not require "exceptional circumstances"- judge applied the wrong test- supplementary expert reports should have been admitted as no objection was made by the respondent until trial had commenced- alternatively adjournment should have been permitted to allow appellant to put on evidence- overriding duty of trial judge to ensure a fair trial- appellant's materials and case not considered- appeal allowed- retrial ordered. Legislation Cited: Civil Procedure Act 2005, s 56 Trade Practices Act 1975 (Cth) Uniform Civil Procedure Rules r31.23, r31.28 Cases Cited: Adwell Holdings Pty Ltd v Smith [2003] NSWCA 103 CJD Equipment v A & C Constructions [2009] NSWSC 1085 Dietrich v The Queen [1992] HCA 57; 177 CLR 292 Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 Evans v Bartlam [1937] AC 473 Galea v Galea (1990) 19 NSWLR 263 Ramton v Cassin (1995) 38 NSWLR 89 RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123 State of NSW v Tszsykl [2008] NSWCA 107 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 49; 75 NSWLR 380 Yacoub v Pilkington (Australia) [2007] NSWCA 290 Category: Principal judgment Parties: Hodder Rook & Associates Pty Ltd (Appellant) Genworth Financial Mortgage Insurance Pty Ltd (Respondent) Representation: Madura Perera (Sole Director of Appellant Company) T Mehigan (Respondent) Self represented (Appellant) Hickson Lawyers (Respondent) File Number(s): CA 2008/290472 Decision under appeal Citation: Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Limited [2010] NSWSC 1043 Date of Decision: 2010-09-15 00:00:00 Before: Einstein J File Number(s): SC 2008/290472