SUPREME COURT OF QUEENSLAND
CITATION:
Re Earlturn Pty Ltd [2021] QSC 137
PARTIES:
MINDORO MANAGEMENT INVESTMENTS PTY LTD
ACN 150 866 676
(applicant)
v
EARLTURN PTY LTD
ACN 091 166 817
(first respondent)
CK Ma INVESTMENTS PTY LTDACN 115 205 402
(second respondent)
FILE NO/S:
354 of 2020
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court of Queensland
DELIVERED EX TEMPORE ON:
28 April 2021
DELIVERED AT:
Cairns
HEARING DATE:
27, 28 April 2021
JUDGE:
Henry J
ORDER:
1. Paragraphs 7.13 to 7.17 inclusive, and 8.6 of the affidavit of forensic accountant, John Goggin are struck out.
CATCHWORDS:
EVIDENCE – ADMISSABILITY – EXPERT EVIDENCE – where a party objected to the tendering of an affidavit by a forensic accountant – where portions of the affidavit relied upon two distinct sources of data authored by others – whether it is permissible for the expert’s reliance upon data, which is hearsay, to form the basis of the forensic accountant’s expert opinion – whether that opinion would be based upon inadmissible evidence – whether the sources of data authored by others were within the expert’s field of expertise – whether habitual use of the data by the trade or profession has tested its usual and practical accuracy and has sanctioned its trustworthiness
Dasreef Proprietary Limited v Hawchar [2011] 243 CLR 588, followed
Borowski v Quayle [1966] VR 382, applied
Bodney v Bennell (2008) 167 FCR 84, consideredCOUNSEL: M A Jonsson QC for the applicant
C J Ryall for the second respondent(No appearance for the first respondent, the applicant and second respondent constituting the entirety of its members)
SOLICITORS: Preston Law for the applicant
Devenish Law for the second respondent(No appearance for the first respondent, the applicant and second respondent constituting the entirety of its members)
HENRY J: In this application for winding up of a company being heard as a trial, objection has been taken to the admissibility of exhibit JJG-1 to the affidavit of forensic accountant, John Goggin. That affidavit has been received, conditioned on the outcome of argument on the objection, as exhibit 5.1 on the proceeding.
Exhibit JJG-1 to the affidavit is an expert witness report by Mr Goggin, dated 12 December 2019. Mr Goggin’s report expresses two ultimate sets of conclusions.
The first conclusion, in summary, is that in the reviewed period of 2015 to 2020, and I observe particularly from 2017, the wages and salary costs of Earlturn Pty Ltd was significantly higher than industry benchmarks. That conclusion is premised upon two aspects of Mr Goggin’s findings.
The first aspect, about which no objection is made, is Mr Goggin’s forensic findings as to the company income revenue expenses, including payroll expenses and profit margin. The second aspect, which is objected to, relies on a report on the purported industry benchmarks contained in annexure 10 to Mr Goggin’s report, namely, the IBIS World Industry Report H4404, titled “Serviced Apartments in Australia”.
The IBIS report refers to various statistics, and, at page 32 under…
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- AGLC
- Re Earlturn Pty Ltd [2021] QSC 137
- Case
- [2021] QSC 137
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to resolve centred on the principles of expert evidence admissibility. Specifically, the court needed to determine if an expert could rely on hearsay data to form their opinion and whether such reliance would render the expert’s opinion based on inadmissible evidence. The court also had to assess whether the data sources in question were within the expert’s area of expertise and whether the profession had tested and sanctioned their accuracy and trustworthiness.
The court concluded that certain sections of the affidavit were not admissible as they relied on data that constituted hearsay and was not within the expert’s field of expertise. The court found that the expert's reliance on these data sources did not meet the necessary criteria for admissibility under the rules of evidence. As a result, specific paragraphs of the affidavit were struck out. This decision underscored the importance of the foundational reliability and relevance of data used by experts in forming their opinions, particularly in the context of admissibility in court proceedings.
The court’s final orders included striking out paragraphs 7.13 to 7.17 inclusive, and 8.6 of the affidavit provided by John Goggin, the forensic accountant. These sections were deemed inadmissible due to their reliance on hearsay evidence and the lack of expertise regarding the data sources used.
Orders
Orders of the court
1. Paragraphs 7.13 to 7.17 inclusive, and 8.6 of the affidavit of forensic accountant, John Goggin are struck out.
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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