FEDERAL COURT OF AUSTRALIA
Leviston v PQ Management Pty Ltd (No 2) [2023] FCA 295
File number: QUD 166 of 2020 Judgment of: DERRINGTON J Date of judgment: 24 March 2023 Catchwords: PRACTICE – leave sought pursuant to r 23.03(2)(a) to cross-examine Court expert – expert valued shares in a company which was the subject of oppression proceedings – proposed cross-examination to address valuation methodology – no point of principle Legislation: Federal Court Rules 2011 (Cth) Cases cited: Leviston v PQ Management Pty Ltd [2022] FCA 787 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 9 Date of hearing: 24 March 2023 Counsel for the Plaintiff: Mr M White Solicitor for the Plaintiff: Queensland Legal Counsel for the Defendants: Mr M Lyons Solicitor for the Defendants: McCullough Robertson ORDERS
QUD 166 of 2020 BETWEEN: ANDREW TROY LEVISTON
Plaintiff
AND: PQ MANAGEMENT PTY LTD
First Defendant
DONALD NEAL ISON
Second Defendant
GREGORY SHANE ELDRIDGE (and another named in the Schedule)
Third Defendant
ORDER MADE BY:
DERRINGTON J
DATE OF ORDER:
24 MARCH 2023
THE COURT ORDERS THAT:
1.Pursuant to r 23.03(2)(a) of the Federal Court Rules 2011 (Cth), the parties be granted leave to cross-examine Mr Matthew Ashby in his capacity as Court expert.
2.The matter be listed for a further hearing at 9:30 am AEST on 5 April 2023.
3.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
This application is made pursuant to r 23.03(2)(a) of the Federal Court Rules 2011 (Cth) for leave by a party to cross-examine a Court expert.
The expert was appointed in connection with a judgment previously handed down in these proceedings: Leviston v PQ Management Pty Ltd [2022] FCA 787. The proceedings concerned the claims by Mr Andrew Leviston of oppression in the conduct of the affairs of Treated Waste Agencies Pty Ltd (the Company). The substance of the proceedings was heard and determined and an order was made on 8 July 2022 that the first defendant, PQ Management Pty Ltd, purchase Mr Leviston’s shares in the Company.
The methodology for the valuation of the shares was provided in the judgment previously delivered, and was, in part, derived from an agreement between the parties as to the manner in which the shares in the Company ought be valued. On 22 August 2022, it was ordered that the value of the shares be ascertained by a Court expert in accordance with that agreed methodology. The parties were involved in that process with the assistance of a Registrar of this Court. The expert, Mr Matthew Ashby, has now prepared his report.
The defendants wish to cross-examine Mr Ashby on the report, no doubt on the basis that they perceive that the value of the shares on which he arrived was too high. The application for leave to cross-examine is opposed by the plaintiff.
The issues in respect of…
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- Case
- [2023] FCA 295
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the parties should be granted leave to cross-examine the Court expert, Mr Ashby, regarding his valuation methodology. The court needed to determine whether the cross-examination would assist in clarifying the valuation method and whether there was any point of principle that necessitated the intervention of the court. The parties argued that the cross-examination was necessary to ensure the fairness and accuracy of the valuation process.
In granting the leave, the court considered that the proposed cross-examination was not intended to raise a point of principle but rather to clarify the valuation methodology used by the expert. The court held that the parties should be permitted to cross-examine the expert to ensure that the valuation process was transparent and accurate. The court did not see any significant point of principle that would preclude the parties from cross-examining the expert. Consequently, the court granted leave for the cross-examination and scheduled a further hearing to proceed with the cross-examination and any related matters.
In summary, the Federal Court of Australia granted the parties leave to cross-examine the Court expert, Mr Matthew Ashby, in relation to the valuation methodology employed. The decision was based on the need for transparency and accuracy in the valuation process, and no point of principle was deemed to be at stake. The matter was listed for a further hearing to facilitate the cross-examination and address any other issues arising from the valuation. Costs were reserved pending further directions from the court.
Orders
Orders of the court
1. Pursuant to r 23.03(2)(a) of the Federal Court Rules 2011 (Cth), the parties be granted leave to cross-examine Mr Matthew Ashby in his capacity as Court expert.
2. The matter be listed for a further hearing at 9:30 am AEST on 5 April 2023.
3. Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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