DAMAGES – leases and tenancies – whether there was a breach of contract – lock out by lessor – hotel – claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term – defendant in default of various obligations including rent – plaintiff re-entered, occupied and took possession of the hotel – claim that defendant failed to maintain, replace, repair hotel – loss of bargain claim dismissed – referee claims – evidentiary difficulties – nature of lease obligations – was the defendant liable for any prior breach of the lease – observed items – claim for painting-head contractor – claim for costs of re-entry – cross-claim – repayment of security deposit – conversion – claim in respect of mini bus – interest – costs
PROCEDURE – various notice of motions – leave sought to rely on further affidavits – refusal of pleading amendment – refusal of the adjournment application – rejection of the tender
“1. On 29 March 2012, an application by Centro Properties Limited and CPT Manager Limited (collectively CNP) supported by Centro Retail Limited, Centro MCS Manager Limited and Centro Corporate Services Pty Limited (collectively CER) for a limitation order under s 136 of the Evidence Act 1995 (Cth) (the Evidence Act ) in respect of certain parts of a number of “analyst reports” was dismissed. These are the reasons for that decision.”
EVIDENCE – report of expert – report as to value of land – not commissioned or obtained for use in proceedings – no Schedule 7 acknowledgment – not served as required by rules of court – whether admissible under Evidence Act – held it is – but need for s 136(a) order to promote purpose of rules of court
EVIDENCE – admissibility and relevancy – whether expert evidence not admissible through risk of bias – CORPORATIONS – winding up – setting aside statutory demand – re-writing statutory demand under section 459H Corporations Act 2001 (Cth) – relationship between debt claimed in notice of demand, and re-written notice of demand
Contract – General contractual principles – Construction and interpretation of contracts – Implied terms – Generally – Business efficacy – Vendor of land must permit access for the purpose of valuation.
BP Refinery (Westernport) Pty Ltd v Shire of Hastings  HCA 40; (1977) 180 CLR 266; Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd  HCA 14; (1986) 64 ALR 481, applied.
National Mutual Life Association of Australasia Limited v Chris Poulson Insurance Agencies Pty Ltd (No 4) 11/1998; Chris Poulson Insurance Agencies Pty Ltd v National Mutual Life Association of Australasia Limited 40/1999, considered.
Conveyancing and Law of Property Act 1884 (Tas), s39.
EVIDENCE – Expert evidence – Anthropological evidence – Whether “basis rule” applies – Hearsay – Rule not apply to evidence of previous representation admitted because relevant for purpose other than proof of fact intended to be asserted by representation – Application of exception to evidence of anthropologists of statements made by Aboriginal persons about customs and practices.
NEGLIGENCE – liability of manufacturer to end user – asbestos cement sheeting – in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres – work totalled about 12 hours over several days – extension to his sister’s house – no other exposure to asbestos dust and fibre apart from ordinary environmental exposure – in 2003 plaintiff became ill and mesothelioma diagnosed – Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet – on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available – held no duty of care – consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations – consideration of Trial Judge’s decision on need to print warning on sheets – admissibility of plaintiff’s evidence on how a warning would have affected his conduct.
EVIDENCE – expert evidence – admissibility – Evidence Act 1995 (NSW), s 79 – car stolen despite engine immobiliser – expert had no experience in immobilisers – based opinion on internet materials and investigations – whether expert had relevant expertise – whether expert expressed relevant opinion – whether opinion based on expertise – whether opinion expressed in admissible form
JURISDICTION – appeal from Local Court under Local Courts (Civil Claims) Act 1970 (NSW), s 69(2) – whether appeal against the rejection of an expert report was an appeal “in point of law” – expertise a question of fact – whether alleged error material to the outcome
Evidence – opinion – evidence of reliance in case of non-disclosure – evidence of what person reading prospectus would have done if disclosure had been made – whether such evidence is “opinion evidence” – whether excluded by “opinion rule” in s 76 of Evidence Act 1995 .
PATENTS – appeal under s 60(4) of the Patents Act 1990 (Cth) against the Commissioner’s decision on an opposition to a grant of patent – whether tender of evidence as to the Commissioner’s decision, including the material on which it was based, inadmissible in the trial in this Court – whether Evidence Act 1995 (Cth) applies to such evidence – nature of opposition proceeding before the Commissioner – nature of appeal under s 60(4) of the Patents Act – effect of s 160(a) of the Patents Act – effect of O 58 r 8 of the Federal Court Rules – admissibility of evidence at the trial governed by Evidence Act 1995 (Cth)
EVIDENCE – admissibility of evidence as to the Commissioner’s decision and the material on which it was based – whether evidence as to the Commissioner’s decision irrelevant – whether evidence as to the material on which the Commissioner’s decision was based inadmissible as hearsay – evidence about the Commissioner’s decision relevant as jurisdictional fact and as the opinion of a person with technical expertise – this evidence and material on which the Commissioner’s decision was based is admissible under the Evidence Act 1995 (Cth)
PRACTICE AND PROCEDURE – whether leave to appeal against evidentiary ruling ought to be granted – case raises a matter of public importance – leave granted
 FCA 1348
EVIDENCE – opinion evidence admissible to prove the truth of the opinion – whether Court should exercise discretion to limit use of evidence – unfair prejudice – procedural unfairness – evidence admitted for limited purpose of proving belief or intention – Evidence Act 1995 (Cth) ss 77, 136
Torts – Negligence – Liability – Slip and Fall – Whether employer failed to provide a safe means of access between car park and offices – Whether stairs slippery – Whether expert evidence on slipperiness of stairs should have been accepted by trial judge – Discussion in obiter dicta about credibility of party-witness – Where employee injured whilst walking between roof-top car park and office – Where lack of previous slipping accidents on stairs
Evidence – Opinion – Expert evidence – Admissibility and use – Discussion of common law and statutory requirements – Need for expert witness to reveal factual and intellectual basis of opinion - Evidence Act 1995 (NSW), ss 76, 77, 78, 79 and 80 – D