Australia, March 31 -- New South Wales Land and Environment Court issued text of the following judgementon March 4:

1. I will proceed to an ex tempore judgment in relation to the objections to the reports of David Haskew and John Sanidas in circumstances where the experts sought to be relied upon by the applicant and second respondent are not being made available for cross-examination by the first respondent.

2. The hearing of these Class 3 proceedings commenced yesterday, Monday, 3 March 2025. The Eddie Arnott Corporation Pty Ltd, the applicant, seeks to rely upon the expert report of David Haskew, town planner, in support of its freehold claim, and the applicant and Dr Imad Arnaout, the second respondent, each seek to rely upon the expert report of John Sanidas, valuer, in support of their respective freehold and leasehold claims.

3. On Monday, 24 February 2025, at the second pre-hearing mention, the applicant and second respondent informed the Court that expert witnesses of the applicant and second respondent would not be available for cross examination. The applicant and second respondent do not propose to call either witness.

4. On Monday, 3 March 2025, Sydney Metro, the first respondent, filed submissions on the consequences of the failure of a party to call experts upon whose evidence they seek to rely for cross examination. The first respondent submitted that pursuant to r 31.29 of the Uniform Civil Procedure Rules 2005 (UCPR), the expert reports of Mr Haskew and Mr Sanidas may not be used unless the Court grants leave. If leave were granted, the first respondent submitted that it will be materially prejudiced, that directions ought be made permitting short oral evidence from the first respondent's experts, and the expert reports of Mr Haskew and Mr Sanidas should be given little weight.

Background facts

5. The background facts, as deposed to in the affidavit of Laetitia Chattat, solicitor for the first respondent, dated 3 March 2025, are relevantly as follows. On 8 October 2024, the Court listed the matter for hearing commencing 3 March 2025, and also listed the matter for a pre-hearing mention on 17 February 2025. On 28 January 2025, the first respondent wrote to Dr Arnaout giving notice of witnesses required for cross examination. On 31 January 2025, Dr Arnaout sent an email to the first respondent giving notice that Mr McDonald and Mr Masters, the first respondent's town planning and valuation experts, were required for cross examination at the hearing.

6.At a pre-hearing mention on 17 February 2025, the question of availability of expert witnesses for cross examination arose. The Court was informed that the registrar had on two occasions declined to make a direction in relation to the giving of concurrent evidence by the parties' experts at the hearing. On 20 February 2025, the first respondent sent an email to Dr Arnaout asking that he confirm in writing that Mr Haskew and Mr Sanidas would be available for cross examination. On 24 February 2025, the first respondent wrote again to Dr Arnaout asking that he confirm in writing that Mr Haskew and Mr Sanidas would be available for cross examination. On 25 February 2025, at a second pre-hearing mention, in response to an question by the Court, Dr Arnaout stated "no" and "they're not available".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195634b33d475ce2eedca521)

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