In the matter of Bevic Holdings Pty Limited

[2015] NSWSC 275

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Bevic Holdings Pty Limited [2015] NSWSC 275
Hearing dates:	2 March 2015
Date of orders:	02 March 2015
Decision date:	02 March 2015
Jurisdiction:	Equity Division - Corporations List
Before:	Brereton J
Decision:	Leave to adduce expert evidence refused.
Catchwords:	EVIDENCE – expert evidence – application for leave to adduce expert evidence – on application to set aside statutory demand – where expert evidence pertains to ultimate question for the court’s determination – held, leave not granted to adduce expert evidence.
Legislation Cited:	(Cth) Corporations Act 2001, s 459G (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Bevic Holdings Pty Ltd ACN 000 630 277 (plaintiff) Victor Edward Wright (defendant)
Representation:	Counsel: J Carruthers (plaintiff) R Mansted (defendant) Solicitors: H T Piper (plaintiff) APJ Law (defendant)
File Number(s):	2014/357331

Judgment (ex tempore)

1. HIS HONOUR: In these proceedings, which are an application by the plaintiff Bevic Holdings Pty Limited, pursuant to (Cth) Corporations Act 2001, s 459G, to set aside a creditor’s statutory demand served on it by the defendant Victor Edward Wright, the defendant seeks the Court’s leave to adduce expert evidence.

2. The reception of expert evidence on an application to set aside a creditor’s statutory demand is, it goes without saying, a rarity. One reason for that is that if there are competing expert opinions, that is not the type of dispute that the Court would resolve on a s 459G application. That is not to say that such evidence will never be received. In particular, sometimes in building cases, expert evidence is appropriate to show that there is or is not a dispute or, more typically, to quantify the value of an offsetting claim.

3. That is not the nature of the evidence sought to be adduced here. The question that it is intended to ask the proposed expert, who is an accountant, having reviewed the company’s accounting records, is:

Assuming that any money provided by the defendant to the plaintiff was paid on the basis that it was a loan, what is the current total balance of any loan provided by the defendant to the plaintiff?

4. That would presumably involve the expert examining the accounts, finding evidence of payments by the defendant to the plaintiff and crediting them to the loan account, finding payments by the plaintiff to the defendant and dealing with them in a way in which it is not clear from the instructions but might involve the expert making assumptions as to whether they were repayments on the loan amount or of some other nature, and subtracting the repayments from the payments to deduce what is the total current balance of the loan account.

5. Essentially, that involves two elements. One is the mathematical element of addition and subtraction of payments and repayments. That is not a matter that requires the expertise of an accountant or of anyone else. The other is interpreting the accounting records to see whether they were payments for the loan account or some other sort of payment. That involves interpreting documents and does not involve the application of any accounting expertise.

6. I fully appreciate and agree that sometimes, for the purposes of refining the issues and confining what the Court has to attend to, it is useful to have an accountant or similar expert review the documents and summarise transactions. That can be done, without granting leave to adduce expert evidence as to what has happened, in a schedule that summarises the relevant payments that are said to be reflected on the loan account.

7. It seems to me that granting leave to adduce expert evidence would necessarily invite a competing expert opinion and while the end result might be to show that there was some amount undisputedly payable, it would not likely assist the Court to resolve that dispute, which does not depend on any question of accounting expertise.

8. It seems to me that an expert opinion as to what is the balance of the loan account would simply ask the expert to opine on an ultimate question which is really a question for the Court.

9. Accordingly, without foreclosing the opportunity for the defendant, for example, to serve a schedule, being a summary of the loan account transactions under these provisions of the (NSW) Evidence Act 1995 which enable summaries to be served and admitted, I would decline leave to adduce expert evidence as requested. I propose to direct that the plaintiff serve any evidence in reply by 16 March 2015.

10. The court further orders that:

1. The proceedings be fixed for hearing on 26 March 2015, with an estimate of one day.

2. The usual order for hearing, provided that the plaintiff's written submissions are to be lodged with my associate and served by 19 March, and the defendant's by 24 March 2015.

3. Neither party be entitled to rely at the hearing without the leave of the court on any affidavit evidence that has not yet been served, provided that the plaintiff may rely on evidence strictly in reply that is served by 16 March 2015.

4. No special costs order in respect of today.

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Decision last updated: 20 March 2015