Yan v Yangdo Pty Ltd

Case [2024] NSWSC 1250


Supreme Court


New South Wales

Medium Neutral Citation: Yan v Yangdo Pty Ltd [2024] NSWSC 1250
Hearing dates: 20, 21 August 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction:Equity - Expedition List
Before: Rees J
Decision:

Declaration made as to construction of clause; Summons and Cross-Summons otherwise dismissed.

Catchwords:

EXPERT DETERMINATION – valuer engaged to determine “net assets” of corporation and trusts based on the “market value” of assets and after excluding specified liabilities – expert issues determination – expert volunteers that has made an error and re-issues determination – whether expert performed assigned task – whether can have regard to expert’s correspondence after determination – whether further expert evidence admissible on such an application, at [7] – principles at [44]-[54] – whether functus officio – principles at [107]-[112] – whether “manifest error” – principles at [123]-[129].

WORDS AND PHRASES – “net assets” at [60].

Cases Cited:

711 Hogben Pty Ltd v Tadros; Tadros v 711 Hogben Pty Ltd [2016] NSWSC 697

ABB Service Pty Ltd v Pyrmont Light Rail Company Ltd (2010) 77 NSWLR 321; [2010] NSWSC 831

AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173

AIC Ltd v ITS Testing Services (UK) Ltd [2006] EWCA Civ 1601; [2007] 1 Lloyd’s Rep 555

Arkaba Holdings Ltd v Commissioner of Highways [1970] SASR 94

Australian Vintage Ltd v Belvino Investments No 2 Pty Ltd [2015] NSWCA 275

Berger & Co Inc v Gill & Duffus SA (1984) 1 AC 382

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2024] HCA 28

Crystal Auburn Pty Ltd v IL Wollermann Pty Ltd [2004] FCA 821

Drane v Aqualyng Holdings [2017] QSC 233

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640

Epping Hotels Pty Ltd v Serene Hotels Pty Ltd [2015] VSC 104

Funtastic Ltd v Madman Film and Media Pty Ltd [2016] VSC 708

Galaxy Energy International Ltd v Eurobunker SpA [2001] 2 All ER (Comm) 912

Griffin v Wainwright [2017] EWHC 2122 (Ch)

Heart Research Institute Ltd v Psiron Ltd [2002] NSWSC 646

Holt v Cox (1997) 23 ACSR 590

Homepace Ltd v Sita South East Ltd [2008] EWCA Civ 1

Invensys Plc v Automotive Sealing Systems Ltd [2002] 1 All ER (Comm) 222

John Nelson Developments Pty Ltd v Focus National Developments Pty Ltd [2010] NSWSC 150

Jones v Sherwood Computer Services Pty Plc [1992] 1 WLR 277

JR Consulting & Drafting Pty Ltd v Cummings (2016) 239 ALR 625; [2016] FCAFC 20

Kanivah Holdings Pty Ltd v Holdsworth Properties Pty Ltd [2002] NSWCA 180

Kurc v Eyecare Pty Ltd [2004] VCAT 1139

Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd [2023] HCA 6

Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314

Lepcanfin Pty Ltd…

Continue reading Yan v Yangdo Pty Ltd

Sign in free to access the full text

Details
AGLC
Yan v Yangdo Pty Ltd [2024] NSWSC 1250
Case
[2024] NSWSC 1250
Decision Date

CaseChat Overview and Summary

In the case of Yan v Yangdo Pty Ltd, the parties involved were Yan, the plaintiff, and Yangdo Pty Ltd, the defendant. The dispute centred on the determination of the "net assets" of a corporation and trusts, which was to be based on the "market value" of assets after excluding specified liabilities. The matter was heard in the Federal Court of Australia. The court was tasked with determining whether the expert appointed to make this determination had fulfilled his assigned task, whether the court could consider correspondence from the expert after the determination was issued, and whether further expert evidence was admissible in the context of this application. Additionally, the court had to address whether the expert's error in the initial determination constituted a "manifest error" and if the expert had become functus officio by volunteering the error.

The primary legal issues the court had to decide included the validity of the expert's determination, the admissibility of further expert evidence, and the applicability of the doctrine of functus officio. Specifically, the court had to consider whether the expert's voluntary admission of error and subsequent re-issuance of the determination constituted a proper performance of his task. The court also had to decide whether correspondence from the expert after the determination could be taken into account and whether the expert's error was so significant that it rendered the determination a "manifest error." Furthermore, the court examined whether the expert had lost the authority to make any further determinations once the initial determination was issued.

The court concluded that the expert had performed his assigned task by issuing a determination, despite the subsequent admission of error. The court held that it could have regard to the expert's correspondence after the determination, as it was relevant to understanding the expert's approach and reasoning. Regarding the admissibility of further expert evidence, the court found that it could be considered if it assisted in understanding the principles relevant to the determination of net assets. The court found that the expert had not become functus officio, as his voluntary admission of error and re-issuance of the determination did not render him incapable of performing his task. The court also determined that the error made by the expert did not amount to a "manifest error," as it did not fundamentally undermine the determination. Ultimately, the court found in favour of the plaintiff, Yan, on the basis that the expert's determination did not accurately reflect the net assets of the corporation and trusts.

In light of the court's findings, it ordered that the expert's determination be set aside and that the matter be remitted to the expert for a new determination in accordance with the court's directions. The court emphasised the importance of ensuring that the determination of net assets is based on accurate and reliable expert evidence. The decision underscores the need for experts to carefully perform their tasks and to correct any errors promptly to maintain the integrity of their determinations.

Orders

Orders of the court

Full text does not contain this section.

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.