Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763

Supreme Court New South Wales

Medium Neutral Citation: Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763 Hearing dates: 10/11/2014, 11/11/2014, 12/11/2014, 13/11/2014 and 14/11/2014 Decision date: 10 December 2014 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: In each matter: judgment for defendants with costs. Catchwords: EVIDENCE - expert evidence - whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation - whether evidence was unfairly prejudicial - where excluding evidence would effectively determine the issue of substance to which that evidence was directed

EVIDENCE - expert evidence - whether to reject evidence of valuations prepared for non-litigation purposes - where valuations were business records - whether r 31.23 only applies to reports prepared by an "expert witness" - whether court should "otherwise order" - whether evidence would be unfairly prejudicial - where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses - where signatories not involved in preparation of joint expert reports

EVIDENCE - expert evidence - expert valuation of land - whether one expert's evidence to be preferred - where one expert witness briefed with substantially more information - where other expert prepared a "blind" valuation - where expert town planning advice not available to original valuer - where expert town planning advice nevertheless relied upon by one expert witness - where expert town planning advice speculative

NEGLIGENCE - duty of care - whether mediator and valuer owed a common law duty of care to plaintiffs - whether plaintiffs were vulnerable - where valuer did not know the purpose for which the valuation was to be used - whether reliance is sufficient to establish vulnerability - whether plaintiffs could have protected their own interests - whether valuation negligent - whether valued at highest and best use of the site - whether negligent in valuing property without expert town planning advice - whether no valuer acting prudently and reasonably could arrive at the value in the valuation report - whether mediator negligent in instructions to valuer - whether mediator owed parties in dispute a duty of care in instructing valuer - whether mediator breached duty of care - whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer - whether mediator protected from liability as acting in capacity as mediator