Investmentsource v Knox Street Apartments

Investmentsource v Knox Street Apartments - [2007] NSWSC 1128 - NSWSC 2007 case summary — Zoe

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JUDGMENT - ON ADMISSIBILITY OF EVIDENCE 1 HIS HONOUR: The moving parties (for convenience, I shall refer to them collectively as "KSA") tendered material extracted from records produced on subpoena by Colliers Jardine Consultancy and Valuation Pty Limited (Colliers). KSA relied on s69 of the Evidence Act 1995. The opposing parties (for convenience, I shall refer to them as Kimberley) opposed the tender of that material. 2 I admitted some of that material and rejected some of it. I said that I would give reasons later. These are my reasons. Context 3 The proceedings (there are in fact two sets of proceedings but that complication can be put to one side) concern a joint venture between KSA and Kimberley for completion of a development project at Knox Street, Chippendale known as "Central Park Apartments". The circumstances in which that development was undertaken, and the disputes between the parties, do not require detailed elaboration. It is sufficient to note that one of the issues between the parties concerns the price at which Kimberley procured what was in substance a sale of the unsold units in the development to Milton Street Holdings Pty Limited (Milton), a company apparently controlled by Mr Henry Kaye. In substance, KSA's case on this transaction is that it was effected at an undervalue, and as well as was in breach of the joint venture agreement, because it was effected at a total price less than the price calculated in accordance with the joint venture agreement. 4 It is not in dispute that Colliers prepared a report for use by Milton, or other companies associated with it, or Mr Kaye. The report was dated 12 June 2001. The agreement with Milton was made a fortnight earlier, on 24 May 2001. KSA wishes to rely on Colliers' report to prove the value of the relevant units at the time. 5 The author of the report is a Mr Cameron Williams. Mr Williams was an employee of Colliers. KSA procured another valuer employed by Colliers, Mr Dwight Hillier, to swear an affidavit. That affidavit, if read, would have showed that Mr Williams had left the employer of Colliers. Further, by it, Mr Hillier would have expressed the view that Mr Williams' "valuation" was accurate. However, Mr Hillier's affidavit was not read, and I mention those matters not by way of findings of fact but to explain the somewhat unusual circumstances in which this debate arose. 6 The business records of Colliers that KSA sought to tender included the "valuation" to which Mr Hillier referred in his unread affidavit and what appears to be working papers and supporting material obtained from Colliers' file. 7 KSA did not propose to call Mr Williams as a witness. There was no evidence of his whereabouts or of the reasons (if it be the case) why he could not give evidence in support of his report. 8 Kimberley retained its own expert valuer, Mr Simon Feilich. Messrs Hillier and Feilich conferred. (I interpose to note that this had to be done at my express direction; the parties seemed ignorant of, or content to ignore, the relevant provisions of the usual order for hearing that was made; and this comment could be applied to other aspects of the case). 9 Messrs Hillier and Feilich prepared a joint report that was admitted on the voir dire. By that report they agreed, among other things, that the Colliers' report "was not instructed or prepared as a valuation and cannot be relied upon as such"; and that it was "instructed and prepared to provide indicative potential pricing only". They contrasted this with the "formal valuation" prepared by Mr Feilich.

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25 On the rules as they then stood, Campbell J held that the expert was not an "expert witness" as defined in r13C. That definition referred to an expert engaged for the purpose of providing or giving opinion evidence in the existing or proposed proceedings. His Honour said at para [11] that this definition did not "catch the situation… where an officer of a party, not engaged for any particular purpose, has, at a time before court proceedings were contemplating, expressed an expert opinion in a report, and that report is tendered in later proceedings." 26 Thus, his Honour held at para [12], failure to comply with the rule did not require rejection of the report. 27 His Honour observed at para [13] that, to be admissible, the report had to comply with relevant provisions of the Evidence Act. That was a case where the expert was available, so s69 was not relevant (although his Honour concluded at para [18] that the report "is a business record of the business of both the plaintiff and the defendant"). 28 In the result, his Honour admitted the report. 29 In Barak v WTH [2002] NSWSC 649, Barrett J considered whether an expert should be permitted to give evidence in circumstance where his report did not state that he had read and agreed to be bound by Schedule K. The expert was cross-examined, and said that he was aware of Schedule K and had read it before making his report, that in making his report he had sought to comply with Schedule K. He accepted that he agreed to be bound by Schedule K. 30 In those circumstances, Barrett J admitted the evidence of the expert. He said at para [5] that "the intent of the rule of ensuring that only reports by experts who have proceeded in accordance with stated norms of conduct should be relied upon can be seen to be satisfied". 31 A slightly different factual situation arose in Commonwealth Development Bank of Australia Pty Limited v Claude George Rene Cassegrain [2002] NSWSC 980. The defendants sought to adduce evidence from an expert. The plaintiffs took the point that the expert had not acknowledged his obligations under Schedule K. 32 In oral evidence, the expert said that he adhered to the evidence in his report having regard to the obligations imposed under Schedule K. There was no evidence that he had read and considered Schedule K before he prepared his evidence. Einstein J relied upon that to distinguish the position considered by him from that considered by Barrett J in Barak. 33 At para [9], Einstein J referred to the importance of compliance with Schedule K. His Honour paraphrased what Barrett J had said in Barak in para [5]. He said: "To my mind, considerable significance attaches to enforcing strict compliance in the expert witness provisions now found in part 36 rule 13C. Questions of the significance of the opinions of experts have been mooted over a very extended period of time and the schedule K and part 36 rule 13 C (1) Expert Witness Code Of Conduct was promulgated with the clear intent that only reports by experts who have proceeded in accordance with the stated norms of conduct, should be relied upon and may be admitted into evidence. The significance of the Code Of Conduct emerges clearly from the whole of the Code as well as from the 'general duty to the court' section of schedule K as well as from the stipulations as to the form of expert's reports."

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34 Einstein J held that the Court should not "otherwise order" under r13C(2). He said at para [11] that the Court should not generally countenance attempts by experts retrospectively to adopt the obligations imposed under schedule K. He said: "Mr Cameron has submitted that the evidence given by Mr Fermanis should satisfy the Court that an otherwise order under part 36 rule 13 C (2) should be made. In my view no such order should be made. In my view the problems which confront the opposing party when such an otherwise order is sought, clearly include, importantly, the fact that an expert not having committed to the Code Of Conduct at or as soon as practicable after his or her engagement in circumstances such as the present, will have committed to a particular form of opinion. Whilst the party applying for an otherwise order may submit that there is no difficulty in the putative experts adopting schedule K in an ex post facto fashion, it seems to me that this is a course which the Court should strain against in so far as the proper administration of justice is concerned and in terms of fundamental fairness. For those reasons it seems to me that the application for an 'otherwise order' should be refused." 35 It follows that his Honour was of opinion that non-compliance with the rules at the time was sufficient of itself, and notwithstanding the facultative provisions of the Evidence Act, to empower the Court to reject the evidence. 36 His Honour considered in the alternative whether, assuming that the Schedule K point could be overcome, the evidence might have been rejected under s135 of the Evidence Act. His Honour said that there was "likely a high prospect" that this would happen. He pointed at paras [13] and [14] to the possibility that the report may have been expressed in a different form, or qualified, had the expert been aware of his obligations under Schedule K when he prepared it. He said: "It does seem to me that if the otherwise order were to have been made, there was likely a high prospect that the court would, relying on s135(a), have refused to admit the evidence put forward as s79 evidence, the reasons being that, the expert having been untutored by the provisions of Schedule K, the party against whom the expert's report is sought to be pressed, in the absence of Schedule K, should not be placed in a position in which a report has come forward which may very well have been in a different form, had the expert at the time of signing the report signed to and been aware of Schedule K.

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"The party against whom the report is tendered says that the report ought not be received under Part 36 rule 13C, because of failure to comply with subrule 2. The party tendering the report points out that while subrule 2 paragraph (a) imposes an obligation on the person engaging the expert to provide the expert with a copy of the Code, the sanction of the report not being admitted into evidence (unless the Court otherwise orders) is one which arises under paragraph (b). The condition for that sanction is triggered by the form of the expert's report itself. Here, the form of the expert's report contains the acknowledgment which paragraph (b) requires. It is only paragraph (a) which has not been complied with." 41 Campbell J concluded at para [19] that there was no real risk that the Court might be misled, or the opposite party prejudiced, in the particular circumstances of that case. Thus, he held that the report should be admitted. Analysis 42 There is a marked difference between the relevant provisions of the Supreme Court Rules (SCR part 36 r13C) and the relevant provisions of the Uniform Civil Procedure Rules (UCPR r31.18, 31.23). As is apparent from the decision of Campbell J in Kirch, the former rules did not catch the position where the expert whose evidence was tendered had not been engaged to provide opinion evidence in the proceedings. It is apparent that the definitions in the present r31.18 have been structured to deal with that problem. As will be seen, they define both an "expert" and "expert witness". An "expert's report" is a written statement by an expert (whether or not an expert witness in the proceedings concerned). 43 UCPR r31.23(1) applies to "[a]n expert witness". However, the exclusionary provisions of r31.23(3) apply to "an expert's report". Thus, and quite deliberately, the Rules have been structured to ensure that expert reports that do not acknowledge Schedule 7, whether prepared by an expert engaged for the purpose of giving evidence in the proceedings or otherwise, should not be admitted unless the Court otherwise orders. Subrule (4) defines an equivalent position in relation to oral evidence from an expert. 44 In my view, the clear intention of this change in the regulatory framework is to reinforce the proposition that, as a general rule, expert evidence should not be admitted unless the expert has at the relevant time subscribed to the obligations that are now to be found in Schedule 7. 45 In the course of submissions, Mr TGR Parker SC (who appeared with Ms S Fendekian of counsel for KSA) questioned whether the operation of s69 of the Evidence Act could be affected by rules made pursuant to the Civil Procedure Act. There are at least two ways of resolving that question. The first is to observe that the relevant rules as they stand at present "are taken to have been made under" s9 of the Civil Procedure Act: see s9[3]. They are thus made by the direct authority of the legislature, because the rules to which s9[3] refers were set out in Schedule 7 to the Act. 46 There is however a more fundamental answer. Section 69 does not say that records of the kind to which it refers should be admitted. It provides that the hearsay rule set out in s59 does not apply to such opinion evidence. In other words, it removes one bar to admissibility. It does not follow that any other bar is also removed. 47 Thus, for example, evidence of the kind referred to in s69 that is including opinion evidence may be rejected pursuant to s135, or its effect may be limited pursuant to s136 on "Makita" grounds (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSW LR 705). 48 Equally, opinion evidence within s69 may be rejected if it does not meet any other relevant requirement for admissibility. There is no inconsistency between s69 and r31.23. Rule 31.23 only arises for consideration once the first bar - s69 - has been overcome. 49 In this case, there are alternative barriers to the admission of the opinion evidence. The first is UCPR r31.23. The second is s135 of the Evidence Act. (Mr Parker did not submit that the evidence should be admitted on some limited basis - for example, to prove the communication of the opinion to Milton, Investmentsource or Mr Kaye. It is therefore unnecessary to consider s136). 50 I have come to the conclusion that I should not "otherwise order" so as to admit into evidence so much of the Colliers material as expresses Mr Williams' opinions. My reasons may be expressed briefly:

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(8) Further, the agreement between Messrs Hillier and Feilich, which appears to draw a distinction between a valuation report and the exercise undertaken by Mr Williams, and which implicitly suggests that the latter is not to be regarded as a valuation, enhances the risk of prejudice. 51 Although it is not necessary for me to express a concluded view, I would in the alternative, and if necessary, rely on those reasons to reject the tender, insofar as it deals with Mr Williams' opinions, under s135. 52 I turn now to the factual material. In my view, there is no real prejudice (of any relevant kind) in admitting the Colliers material insofar as it proves (other) relevant facts: specifically, the description of the property and sales evidence. I accept that there is an element of opinion in the selection of sales evidence. It involves a judgment that the sales in question are to some extent "comparable". However, there are two relevant considerations in this respect. 53 The first is that many of the sales said by Mr Williams to be comparable are also acknowledged by Mr Feilich to be comparable. 54 The second is that Kimberley has had the material for a month, and has been able to obtain evidence - from Mr Feilich - in response to it. Thus, Kimberley through Mr Feilich has been able to consider factual matters, of the kind to which I have referred, in the Colliers material. 55 As will be seen from the description of the Colliers material that I gave in para [10] above, it includes much material that does appear to relate to the Central Park Apartments or to Mr Williams' observations and opinions. In my view, to admit that peripheral material would be likely to cause real prejudice to Kimberley, and it should not be admitted. Result 56 These reasons explain the ruling that I gave on 26 July 2006. The parties agreed, in consequence of that ruling, that the material admitted should consist of the Colliers report shorn of Mr Williams' opinions as to selling prices and of the Appendix.

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