I accept those guidelines.
13 The defendants not only point to a competing valuation, they also point to the fact that there was communication between the single expert and a party which ought not to have occurred.
14 Certainly, the communication should not have occurred. Where a single expert is appointed there is every chance that her or his opinion will be determinative of the issue submitted to her or him. Whilst parties have a right to cross-examine the single expert, they need leave to adduce other expert evidence on the issue. For justice to be seen to be done it is important that there be no unauthorised private communications between a party and a single expert jointly retained by all parties. A party adversely affected by the single expert's opinion (which might be determinative of the issue) may justly complain that he does not know of all that passed between the expert and the other party. He may apprehend and complain that the case was not decided openly on the evidence. Express instructions to the expert and directions to the parties were given to avoid just such a situation as has now arisen.
15 It may well be, as the plaintiffs and cross-defendants submit, that nothing passed between Mr Malouf and Mr Sukkar beyond confirmation of the submission of offers about which there is no dispute, and of which Mr Sukkar was already informed by the materials provided to him by the parties with his letters of instruction. It may also be that the communications did not have any material effect on the opinion of value he formed.
16 Counsel for the defendants submits that it should be inferred from Mr Sukkar's analysis of one of the sales he used as a directly comparable sale that his conversation with Mr Malouf caused him to increase substantially his opinion of value. The cross-defendants dispute that Mr Sukkar's report is properly open to the construction the defendants seek to give it. I do not propose to go into that issue. It is sufficient to say that prior to the trial and cross-examination of the persons involved, I cannot be sure of the full extent of the communications between Mr Sukkar and Mr Malouf, nor assess what effect, if any, such communications might have had upon the formation of Mr Sukkar's opinion as to value. In those circumstances, the defendants would have a legitimate grievance if they were refused leave to adduce other expert evidence on the same issue. Allowing the parties to adduce further expert evidence means that expense will be incurred which it was hoped might be avoided by Mr Sukkar's appointment. That is an unfortunate consequence. But it does not outweigh the requirements of open justice.
17 On the other hand, I do not consider that Mr Sukkar's report should be excluded because of his contact with Mr Malouf in the course of undertaking his valuation. I would exclude his report if I were satisfied that his impartiality was compromised, but I draw no conclusion about that question in advance of the trial. As the parties will have leave to call other expert evidence on the same issue, Mr Sukkar's opinion will not be determinative of it. His evidence will not carry any greater weight because of his appointment as a single expert. The process of justice will not be tainted. There can be no apprehension that the issue of value will be tried otherwise than by the judge.
18 A further reason for granting the defendants leave to rely on the affidavit of Mr Field is the significant differences between the opinions of each valuer. There is a substantial difference of opinion as to the value of the property as at 6 May 2008. As might be expected from that difference, there is a difference between the valuers as to what sales should be considered as directly comparable sales. I think that is another significant factor in favour of permitting further expert evidence.
19 The plaintiffs submit that there is serious doubt whether or not Mr Field's report should be admitted into evidence. I understand it to be common ground that Mr Field had been retained by the National Australia Bank to value the property and did so on 29 August 2008. The plaintiffs submit that Mr Field's original report to the National Australia Bank contained no statement concerning the Expert Witness Code of Conduct. They submit that having prepared that opinion for a different purpose, Mr Field would be unlikely to back away from it for the purposes of these proceedings. They submit that as it is unlikely that his earlier report would be admitted into evidence, his later report should be rejected as it is clearly built on, and arises out of, the earlier report.
20 Moreover, whilst Mr Field's affidavit of 10 December 2008 includes his testimony that he has read the Expert Witness Code of Conduct which is Schedule 7 to the Uniform Civil Procedure Rules and agrees to be bound by the Code, his valuation report of 14 November 2008 exhibited to that affidavit appears not to contain that statement. If the report does contain that statement, it has not been drawn to my attention. Rule 31.23(3) provides that:
" Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it. "
21 These matters go to the admissibility of Mr Field's report. I do not propose to go into them in advance of the hearing. There may well be additional evidence upon which the defendants would wish to rely on to establish the admissibility of Mr Field's report. In my view, the defendants should have leave pursuant to r 31.44 to adduce evidence of Mr Jason David Field, being his affidavit of 10 December 2008. In giving leave to the defendants to adduce that evidence, I say nothing as to the admissibility of the evidence sought to be adduced. I express no view as to whether an order should be made under r 31.23(3), if such an order is needed for the report to be admissible.
22 The plaintiffs and the cross-defendant should also have leave to adduce expert evidence on the issues which are the subject of Mr Sukkar's report. Any further reports of experts should be provided within a sufficient time to enable all of the experts to confer to endeavour to reach agreement on any matters in issue, to identify those matters upon which they are agreed, and those upon which they are not agreed, and to identify the reasons for any disagreement. I expect that I will make orders under r 31.24 for that purpose in order to facilitate the evidence of the experts being taken concurrently.
23 For these reasons I give leave pursuant to r 31.44: