UTSG Pty Ltd v Sydney Metro (No 4) - [2019] NSWLEC 51

Land and Environment Court

New South Wales

Medium Neutral Citation: UTSG Pty Ltd v Sydney Metro (No 4) [2019] NSWLEC 51
Hearing dates: 10 and 11 April 2019
Date of orders: 11 April 2019
Decision date: 11 April 2019
Jurisdiction: Class 3
Before: Pepper J
Decision:
The expert report of Mr Gambhir Watts OAM CPA dated 28 November 2018 is rejected.

Catchwords: EVIDENCE: whether expert accounting reports should be admitted into evidence in proceedings in Class 3 of the Court’s jurisdiction where the rules of evidence do not apply – assertions and assumptions presented as established facts – reasoning not elucidated – conclusions and opinions stated absent explanation or foundational basis – intemperate language used – scandalous allegations made in respect of another expert and expert report – whether expert lacking in impartiality and independence – report rejected.
Legislation Cited: Uniform Civil Procedure Rules 2005 , rr 31.23, 31.27, Sch 7
Cases Cited: Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92
UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128
UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49
Texts Cited:
Category: Procedural and other rulings
Parties: UTSG Pty Ltd (Applicant)
Sydney Metro (Respondent)
Representation:
Counsel:
Ms S Singh (In person) (Applicant)
Mr R Lancaster SC with Mr N Eastman (Respondent)
Solicitors:
Ms S Singh (In person) (Applicant)
Ashurst (Respondent)

File Number(s): 2017/249637
Publication restriction:

EX TEMPORE Judgment

Sydney Metro Objects to Mr Gambhir Watts’s OAM CPA Expert Accounting Report

The background to this voir dire is found in UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 (at [6]-[15]) and UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49 (at [1]–[5]). It is relied upon but not repeated here.
Sydney Metro, the respondent in Class 3 compulsory acquisition proceedings, objects to the tender of an expert accounting report by Mr Gambhir Watts OAM CPA dated 28 November 2018 (“the Watts report”). The Watts report is relied upon by the applicant, UTSG Pty Ltd (“UTSG”).
The Watts report was prepared in response to an expert report of Mr Luke Howman-Giles of KPMG dated 16 August 2018 (“the KPMG report”).
The scope of work was set out in a letter of engagement dated 26 October 2018 from Ms Simran Singh, the sole director of UTSG, to Mr Watts:

Dear Mr Watts,
As discussed, UTSG (Applicant) seeks and Independent Accounting Expert Report as response to submission made by Sydney Metro (Respondent) in the LEC proceeding.
The report must be prepared in accordance with independent expert witness code of conduct for UTSG to be able to submit it as the 'accounting expert report' in the LEC proceeding.
Scope of Work
1. Review and prepare independent 'Accounting Expert Report' as response to observations and opinions contained in the KPMG Report (enclosed), prepared by Mr Luke Howman-Giles.
2. Perform audits and cross-checks of the UTSG financials and Income Tax returns for 2016 and 2017. Provided opinion as to the accounting standards, methods, tools and processes adopted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 51
Decision Date: 11 April 2019

CaseChat Overview and Summary

UTSG Pty Ltd (the Applicant) brought proceedings against Sydney Metro (the Respondent) in the Supreme Court of New South Wales. The Applicant sought an order for the Respondent to pay a quantum meruit for services rendered. The services in question related to the provision of advice and services by the Applicant to the Respondent regarding the implementation of a fare system. The Applicant argued that it had provided valuable expertise and services to the Respondent, and that it was entitled to be compensated on a quantum meruit basis, given that no formal contract existed between the parties.

The central legal issue before the Court was whether the Applicant was entitled to a quantum meruit for the services it had rendered to the Respondent. The Court had to determine if the services provided were of a kind that could attract a quantum meruit, and whether the Applicant had indeed rendered services to the Respondent. The Court also considered whether there were any circumstances that would preclude the Applicant from recovering on a quantum meruit basis.

In its decision, the Court found that the Applicant had not provided any services to the Respondent that warranted compensation on a quantum meruit basis. The Court rejected the Applicant's claim, noting that the evidence did not support the assertion that the Applicant had provided any significant expertise or services to the Respondent. The Court concluded that the Applicant had failed to establish a case for quantum meruit, and that there were no circumstances that would warrant the Applicant being compensated. The Court also rejected the Applicant's expert report, finding it to be unreliable and not based on sufficient evidence. As a result, the Applicant's claim was dismissed, and its request for an order to pay a quantum meruit was rejected.

Orders

Orders of the court

The expert report of Mr Gambhir Watts OAM CPA dated 28 November 2018 is rejected.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	UTSG Pty Ltd v Sydney Metro (No 4) [2019] NSWLEC 51
Hearing dates:	10 and 11 April 2019
Date of orders:	11 April 2019
Decision date:	11 April 2019
Jurisdiction:	Class 3
Before:	Pepper J
Decision:	The expert report of Mr Gambhir Watts OAM CPA dated 28 November 2018 is rejected.
Catchwords:	EVIDENCE: whether expert accounting reports should be admitted into evidence in proceedings in Class 3 of the Court’s jurisdiction where the rules of evidence do not apply – assertions and assumptions presented as established facts – reasoning not elucidated – conclusions and opinions stated absent explanation or foundational basis – intemperate language used – scandalous allegations made in respect of another expert and expert report – whether expert lacking in impartiality and independence – report rejected.
Legislation Cited:	Uniform Civil Procedure Rules 2005 , rr 31.23, 31.27, Sch 7
Cases Cited:	Lake Macquarie City Council v Australian Native Landscapes Pty Ltd [2015] NSWLEC 92 UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49
Texts Cited:
Category:	Procedural and other rulings
Parties:	UTSG Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Ms S Singh (In person) (Applicant) Mr R Lancaster SC with Mr N Eastman (Respondent) Solicitors: Ms S Singh (In person) (Applicant) Ashurst (Respondent)
File Number(s):	2017/249637
Publication restriction: