From the August 2025 newsletter

On By Geoff GreenIn UncategorizedLeave a comment

[This is a case summary which I prepared for the APIEx newsletter]

“Expert shopping” as viewed by the Singapore Court of Appeal

Azuin bin Mohd Tap v Public Prosecutor [2025] SGCA 8 is a judgement of the Singapore Court of Appeal in a criminal matter with a narrow focus: dealing with an application to adduce new evidence said to be relevant as to whether the applicant “suffered from diminished responsibility,”.

The new evidence was in the form of psychiatric reports notably from two new experts rather than the expert relied upon in the original hearing.

The Court dismissed the application, determining that the new evidence was not material to the appeal, but it made some pointed comments about what it described as “expert shopping,” which it described as being intended “to lay the groundwork for running new and even inconsistent lines of argument on appeal” under the heading ‘Observations on the applicant’s attempt at “expert shopping”.’

“[21] While this suffices to dispose of the application, we take the opportunity to make some observations on the applicant’s case on appeal and, more generally, expert shopping after trial for the purpose of developing not only new but inconsistent arguments on appeal than those advanced at first instance.

 [25] …the only link of relevance that the applicant can draw between [the first new expert’s] report and his appeal relates not to anything that the Judge decided, but an entirely new hypothesis that contradicts an assumption that his case below was built upon.

 [26] The same can broadly be said for [the second new expert’s] report…It is relatively clear to us that [the second new expert’s] report is intended to support this new approach, as there would otherwise be no point in the applicant adducing [it]…

 [27] In our view, this case is a quintessential example of expert shopping. Indeed, we think that this is expert shopping of the most egregious form. It is simply impermissible for a litigant to run a case and lead expert evidence that is built specifically on one premise at first instance and, when that case fails, run a different case founded on an inconsistent premise and seek to adduce fresh evidence to support that change in position.

 [30] What we do say is that it would require quite exceptional circumstances to convince the court that a party should not only be allowed to do a volte-face but adduce new expert evidence from a different expert than before in support of this.”

Three issues for valuation experts

Bhojwani & Ors v Bhojwani [2024] SGHC 310 dealt with the quantification of damages after three sons were successful in litigation against their father, in his capacity as the trustee of a testamentary trust created under the will of their grandfather.

The Court was asked to consider the competing opinions of two expert valuers, in relation to three valuation questions.

  1. Conversion of a “Founder’s Share” with special legal rights, into an ordinary share in the same company

The Father’s expert said that limitations on the exercise of the special legal rights meant that he should treat it as if it was an ordinary share, and he did.  Notably, his original report did not provide any valuation under the alternate scenario – i.e. on the basis that the special rights were unimpeded.

The Court ruled that his assumption about the limitations was incorrect (and also said that it was a legal question, and therefore outside his expertise).

The expert had included information in the later joint expert report, which arguably did provide a valuation on the alternate basis – but that was held to be inadmissible because of the lack of fair notice to the plaintiffs, and regardless, was of little weight, because there was no detail to all the Court to properly assess how it had been calculated.

  1. Value of shares in two companies sold to his brothers

The Father’s expert had applied a “discount for lack of control” and a “discount for lack of marketability.  The Court rejected that approach finding that a transaction with a “typical market participant” was not an appropriate comparison.

The Court also rejected the approach of the Father’s expert in relation to the second company, holding that it was a going concern, not a “Special Asset Vehicle,” and so a market-based approach was appropriate.

  1. The value of three struck off companies

The Court accepted the Plaintiffs’ expert valuation on a “Fair Market Value” basis, rejecting an argument from the Father’s expert that there was no relevant “open market” and hence no relevant information for the valuers to access.

The Court accepted the Plaintiffs’ expert opinion that it was possible to estimate the hypothetical value of the capital returns from the three companies, noting that the Father’s expert had not provided a “reasoned explanation” as to why it could not be done.

The “perils of the sea”

Background

Oversea-Chinese Banking Corp Ltd v Argoglobal Underwriting Asia Pacific Pte Ltd & Ors [2025] SGHC 82 dealt with a lender’s claim against marine insurers for the loss of a ship, which sank on its maiden voyage.

The key question was whether the loss was caused by a “peril of the sea” – covered by the insurance – or “uneventful decrepitude,” or other circumstances unrelated to any external accident.

As a consequence, expert evidence regarding the capsize was crucial, as was photographic evidence taken from the nearby tugboat.

Competing theories

The lender’s naval architecture expert concluded that the only possible explanation for the observed “list” (i.e., the ship becoming lopsided) was a loss of buoyancy due to water ingress – but she was unable to pinpoint the precise cause of that ingress.

The Insurers’ naval architecture expert advanced an alternative theory that “deck edge immersion” caused the capsize.  Notably, this theory arose in his oral evidence and was absent in his two sole expert reports, and the joint expert report.

The Insurers also tabled expert evidence from a Master Mariner who testified that the ship was inherently unstable on departure because it tilted excessively (“heeled”) in high wind.

Assessment of the expert evidence

The Court followed the “well established” rules in choosing between conflicting expert testimony, having regard “to their logic, common sense, coherence, as well as the objective evidence before the court.”

The Lender’s naval architecture expert evidence was supported by calculations and models, which “survived” the scrutiny and examination of the Insurers’ naval architecture expert.  However, there were several unexplained inconsistencies in the “much less credible” theory of the Insurers’ naval architecture expert, and neither he nor the Master Mariner had performed calculations to support their own theories, or to refute the key calculations of the Lenders’ expert.

The Court also preferred the objectivity of the Lender’s expert, noting her admission that she could not firmly hypothesise why the ship had capsized so suddenly.

By contrast, the Master Mariner avoided providing direct answers to some questions coming across “as a factual witness seeking to bolster the Defendants’ case rather than as an independent court expert.”

Speculation is speculation, even if undertaken by experts!

Lorinet v Helu-Trans (S) Pte Ltd [2025] SGHC 66 dealt with a home-owner’s claim against professional contractors who had mounted a valuable sculpture weighing almost 23 kgs, when it fell some two years later.

The owner said that the installers had failed to mount the sculpture in a reasonably secure manner, and that the 5cm screw was too small to bear the full weight of the sculpture.

Notably, there was no evidence about the wall on which the sculpture was mounted, or the size of the hole, because the owner had moved house by the time the experts were engaged, and they were unable to obtain access.

The contractor’s expert sought to overcome the lack of access by conducting tests of the mounting system on other walls, and each relied on photographs of the wall and the hole left when the mounting failed.

The Court held:

  • The lack of access to the wall created “a significant evidential gap.”
  • Analysis of photographs by the experts were “speculative,” and the tests conducted by the contractor’s expert provided little assistance to the Court absent evidence that the test walls were comparable to the wall in question.
  • The fall of the sculpture – more than two years after it was mounted –  was “not inherently probative of anything, and still less that [the contractor’s] assumed breach of duty was the operative cause of the incident.”
  • It was “impossible” to form any conclusions on the adequacy of the mounting system because the evidence was “simply incomplete” – and even if the sculpture had been improperly installed, the owner could not prove that the contractor’s breach was the cause of the loss.

The owner was unsuccessful.

An expert report “so lacking in substance” that it had “nil utility”

Foo v Chan [2025] SGHC 54 dealt with the assessment of damages following an earlier decision of the same name ([2023] SGHC 221) in which the Singapore High Court held that defendant was liable for defaming the solicitor plaintiff in a review on the Google page of the Law Society of Singapore (“LSS” and a written complaint to the LSS.

One of the issues relevant to the assessment of damages was the extent of distribution of the defamatory material, with the onus was on the plaintiff to prove the extent of distribution.

The plaintiff sought to introduce an expert report, notably, its first appearance as an annexe to her closing submissions.

Noting that plaintiff had not given notice of any intention to rely on expert evidence, the Court held that it would have been “clearly improper” to introduce evidence in a such manner, leaving the defendant without any opportunity to test the expert’s opinions in cross-examination or arrange their own expert.

Further, the Court held that the report “fails to comply with almost every conceivable rule of procedure and substance governing expert evidence” such that it would be of no probative value, even if it was admitted into evidence, identifying a list of deficiencies. The report:

  • Was not sworn as an affidavit, and did not acknowledge the expert’s overriding duty to the court.
  • Did not contain details of his qualifications to allow the Court to assess his specialised knowledge.
  • Dealt with “almost none” of the matters listed at O 40 rr 3(2)(b) to 3(2)(g) of the Rules of Court.
  • Did not set out the expert’s reasoning – but worse, it was “not clear what issue his report is intended to relate to or what his report is purposed towards establishing.”
  • Was “so lacking in substance that it [possessed] nil utility as far as the issues before the court [were] concerned.”

The Plaintiff was able to secure an order for total damages of SGD $41,250 – but that was despite, not because of, the deficient report

Expert’s fees reinstated

Arbiters Inc Law Corp v Arokiasamy Steven Joseph and Anor [2024] SGHC(A) 37 dealt with a matter in which plaintiffs terminated the engagement of their lawyers – and then agreed to settle their claim for an amount that had been rejected a fortnight earlier.

The lawyers took action for the recovery of their fees, arguing that the relevant engagement letters “contentious business agreements” (“CBAs”) – which would compel the plaintiffs to pay their fees without any assessment of costs.

The fees claimed were SGD399,000, with additional disbursements including expert fees of £12,300 for an expert based in the UK.

The letters of engagement included an indicative fee estimate of SGD150,000, which allowed for a two-day trial, and which notably stated, “If the matter is settled before trial, as happens in many litigious matters, our professional fees will be correspondingly lower.”

Original Decision

At first instance the Court held that the engagement letters were not CBAs.

It held that a reasonable lawyer would have charged about SGD60,000 up to the trial, and correspondingly, that the claimed fees were excessive.  The Court held the expert’s fee was also excessive given that she did not have to attend Court, and determined that the clients should pay the expert SGD9,000 – a little less than half of her invoice.

On appeal

In the Court held that:

  • The engagement letters were CBAs, but included terms that so unreasonable that they should be declared void and unenforceable.
  • Although the claimed legal fees “were plainly excessive” – there should be an uplifted to SGD87,000.
  • The expert’s fee was not “unreasonable” for a report of 57 pages – but in any case, the plaintiffs had already agreed to pay the expert’s fees in full.

Further consequences

The Court referral of the solicitor to the Law Society of Singapore “to inquire whether [the solicitor] had acted in the interest of [his clients]…and whether [the solicitor] had attempted to mislead the court,” and it ruled that costs should not follow the event having regard to the law firm’s limited success and the solicitor’s “highly unsatisfactory conduct.”

𝘊𝘰𝘮𝘮𝘦𝘯𝘵 – For experts, this case highlights the importance of contractual arrangements which ensure that their fees are payable regardless of the outcome of any cost assessment, although it is worth noting that many experts would require payment in advance before undertaking an engagement outside their home jurisdiction.

Expert evidence inadmissible in the absence of fair notice

On By Geoff GreenIn Expert Witness, Experts in SingaporeLeave a comment

[this is an expanded version of a case note first published on the APIEx LinkedIn page]

Background

Three sons (the Plaintiffs) sued their father in his capacity as the trustee of a testamentary trust created under the will of their paternal grandfather (the Father).  They said that their father concealed the existence of the trust from them for almost a decade – until they discovered its existence – and that he had failed to provide accurate accounts of the trust, commingled personal funds with trust funds, and mismanaged trust assets.

Notwithstanding the Father’s arguments that he had acted with “utmost honesty and in good faith” in the belief that he was acting in the interests of the beneficiaries, the Singapore High Court found that he had breached his duties.  In Bhojwani & Ors v Bhojwani [2024] SGHC 310, the Court ordered his replacement as trustee, rejected claims for the reimbursement of expenses, and made orders by which he was required to compensate the trust by:

  • 5m for the wrongful conversion of a “Founder’s Share” with special legal rights into an ordinary share in the same company.
  • 5m and SGD$1.84m for the wrongful sale of shares in two companies to his brothers at undervalue.
  • An amount to be later determined for realising shares in three struck off companies at undervalue.

The determination of those orders required to Court to assess the competing opinions of two expert valuers.

The expert valuation evidence

The Founder’s Share

The Plaintiffs’ expert valued the Founder’s Share on the relevant date at SGD9,522,732, and the value of an ordinary share at SGD6.02.

The Father’s expert said that there were restrictions on the ability to exercise those special legal rights, and so he valued the Founder’s share at SGD3.95 – consistent with his valuation of ordinary shares.  Notably, his original report did not include a valuation on the alternate basis that there was no restriction on the exercise of the special legal rights (the Alternate Basis).

The Court found the supposed restriction on the special legal rights was an “erroneous basis for valuation,” and a legal question that was outside a valuer’s expertise.

In a later joint expert report the Father’s expert added a table to an appendix to the joint expert report, which appeared to provide a valuation on the Alternate Basis.  The Court held that the supplemental Alternate Basis valuation was inadmissible in the absence of fair notice to the plaintiffs, but regardless, it would not have accorded much weight to the figure because there was little information about how the valuation had been determined, which meant that the Court was unable undertake a proper assessment of the expert’s opinion.

Valuation of the shares in the two Live Companies

The Plaintiffs’ expert assessed the valuation of an ordinary share in the first company at the relevant date as SGD25.55, whereas the Father’s expert determined the value at SGD12.56 after applying a “discount for lack of control” (DLOC) and a “discount for lack of marketability” (DLOM).

The Court determined a transaction with a “typical market participant” was not the relevant comparison in the circumstances.  For that reason, it held that it was not appropriate to apply a DLOC or a DLOM, and so it adopted the Plaintiffs’ expert valuation.

The Plaintiffs’ expert assessed the second company as a going concern, and used a market-based approach to arrive at a per-share value at the relevant date of SGD1,845,000.  The Father’s expert treated the company as a “Special Asset Vehicle,” deploying a net Asset Value approach adjusted for a DLOC, to arrive at a per-share value of SGD10,766.

The Court held that a going concern basis was appropriate, and preferred the approach of the Father’s expert.

Valuation of the three struck off companies

The Plaintiffs’ expert assessed the value of the three struck off companies on a “Fair Market Value” basis as defined by the International Valuation Standards, expressing his opinion on the amount which a buyer would be willing to pay to receive his assessment of the return of capital from the three struck off companies.

The Father’s expert argued that a Fair Market approach could not be used because such returns of capital were not exposed on the open market for market participants, and so there was no relevant information that could be used for such a calculation.

The Court accepted the Plaintiffs’ expert opinion that it was possible “to estimate a hypothetical value of such returns” noting that the Father’s expert had not “provided any reasoned explanation as to why it is impossible to estimate” those amounts.  The Court accepted the valuation of the Plaintiffs’ expert, applied at the date of strike off – which was to be later adjusted for the actual returns, once that information was available.

Another Two cases from Singapore

On By Geoff GreenIn Concurrent evidence, Expert Witness, Experts in SingaporeLeave a comment

These are my write-ups of another two cases from Singapore, which first appeared on the Asia Pacific Institute of Experts LinkedIn page:

Expert’s fees re-instated on appeal

Background

A fortnight after rejecting a settlement offer of SGD330,000, the Plaintiffs in a legal action terminated the engagement of their lawyers – and then agreed to settle their claim for the amount rejected a fortnight earlier.

Shortly afterwards the lawyers commenced proceedings, asking the Singapore High Court to declare that the relevant engagement letters for appointment were “contentious business agreements” (“CBAs”) – which would compel the Plaintiffs to pay their fees without any assessment of costs.

The fees claimed were SGD399,000, with additional disbursements including expert fees of £12,300 for an expert based in the UK.

The letters of engagement notably included an indicative fee estimate inclusive of a two-day trial of SGD150,000 which stated “If the matter is settled before trial, as happens in many litigious matters, our professional fees will be correspondingly lower.”

Original Decision

At first instance the Court held that the engagement letters were not CBAs. It held that a reasonable lawyer would have charged about SGD60,000 up to the trial, and correspondingly, that the claimed fees were excessive.

The Court held the expert’s fee was also excessive given that she did not have to attend Court, and determined that the clients should only pay SGD9,000 – a little less than half of her invoice.

On appeal

In Arbiters Inc Law Corp v Arokiasamy Steven Joseph & Anor [2024] SGHC(A) 37 the Court held that:

  • The engagement letters were CBAs, but that the terms of those letters were so unreasonable that they should be declared void and unenforceable.
  • The claimed legal fees “were plainly excessive” – but it did agree to an uplift of SGD27,000.
  • Noting that the clients had already said that they would pay the expert’s fees in full, it should be “slow to substitute its view for what [the clients] had unequivocally stated they were agreeable to,” and also rejected the view that her fee was “unreasonable” for an expert report of 57 pages.

Further consequences

The Court referral of the solicitor to the Law Society of Singapore “to inquire whether [the solicitor] had acted in the interest of [his clients]…and whether [the solicitor] had attempted to mislead the court,” and it ruled that costs should not follow the event having regard to the law firm’s limited success and the solicitor’s “highly unsatisfactory conduct.”

Comment – For experts, this case highlights the importance of contractual arrangements which ensure that their fees are payable regardless of the outcome of any cost assessment, although it is worth noting that many experts would require payment in advance before undertaking an engagement outside their home jurisdiction.

Two cases from Singapore

On By Geoff GreenIn Expert Witness, Experts in SingaporeLeave a comment

These are my write-ups of two cases from Singapore, which first appeared on the Asia Pacific Institute of Experts LinkedIn page:

An expert report “so lacking in substance” that it had “nil utility”

Background

In an earlier decision in (Foo v Chan [2023] SGHC 221), the Singapore High Court held that defendant was liable for defaming the solicitor plaintiff in two published statements: one, a review on the Google page of the Law Society of Singapore (“LSS”); the second, a written complaint to the LSS.

In this judgement the Court considered the assessment of damages, with general damages of SGD300,000 and aggravated damages of at least SGD50,000 sought by the plaintiff, and a submission from the defendant that the award should be no more than SGD$30,000 in total.

One of the issues relevant to the assessment of damages was the extent of distribution of the defamatory material.

In this case, the Court accepted the general proposition that “there is no presumption that substantial publication occurs simply by virtue of the defamatory statement being published on the Internet,” and that the onus was on the plaintiff to prove the extent of distribution.

The Expert Evidence

The plaintiff sought to introduce an expert report, as an annexe to her closing submissions.

Noting that plaintiff had not given notice of any intention to rely on expert evidence, the Singapore High Court held that it would have been “clearly improper” to introduce evidence in a such manner, leaving the defendant without any opportunity to test the expert’s opinions in cross-examination or, arrange their own expert.

Further, the Court held that the report “fails to comply with almost every conceivable rule of procedure and substance governing expert evidence” such that it would be of no probative value, even if it was admitted into evidence, identifying a list of deficiencies. The report:

  • Was not sworn as an affidavit, and did not acknowledge the expert’s overriding duty to the court.
  • Did not contain details of his qualifications to allow the Court to assess his specialised knowledge.
  • Dealt with “almost none” of the matters listed at O 40 rr 3(2)(b) to 3(2)(g) of the Rules of Court.
  • Did not set out the expert’s reasoning – but worse, it was “not clear what issue his report is intended to relate to or what his report is purposed towards establishing.”
  • Was “so lacking in substance that it [possessed] nil utility as far as the issues before the court [were] concerned.”

Outcome

Notwithstanding the deficiencies in the expert report, the Plaintiff was able to secure an order for total damages of SGD $41,250 in Foo v Chan [2025] SGHC 54.

Speculation by experts is still speculation!

Background

A valuable sculpture weighing almost 23 kgs fell, some two years after being professionally mounted on the wall of the owner’s home.

The owner sued the installation contractor, claiming damages said to arise due to failure to mount the sculpture in a reasonably secure manner, pleading that “[t]he 5cm screw that held the Sculpture in place on the wall was too small to bear the full weight of the Sculpture over time.”

The Singapore High Court rejected the argument that “the fall of the Sculpture…provides irrefutable evidence that the installation was not properly executed,” finding that the fall was “only the starting point and the real question is why the Sculpture fell.”

The Expert Evidence

The owner’s expert provided an opinion that “at least more than one screw or fixation [point was] required to ensure the robustness, stability, and safety of hanging [the] bulky and heavy Sculpture.” The contractor’s expert provided a contrasting opinion that there was no valid evidence of “inadequate screw fixation which failed over time.”

Notably, there was no evidence about the wall on which the sculpture was mounted, or the size of the hole, because the owner had moved house by the time the experts were engaged and they were unable to obtain access.

The contractor’s expert sought to overcome the lack of access by conducting tests of the mounting system on other walls, and each relied on photographs of the wall and the hole left when the mounting failed.

The Court’s assessment of the expert evidence

In  Lorinet v Helu-Trans (S) Pte Ltd [2025] SGHC 66 the Singapore High Court found that:

  • The lack of access to the wall created “a significant evidential gap.”
  • Analysis of photographs by the experts were “speculative,” and the tests conducted by the contractor’s expert provided little assistance to the Court absent evidence that the test walls were comparable to the wall in question.
  • The fall of the sculpture – more than two years after it was mounted –  was “not inherently probative of anything, and still less that [the contractor’s] assumed breach of duty was the operative cause of the incident.”
  • It was “impossible” to form any conclusions on the adequacy of the mounting system because the evidence was “simply incomplete” – and even if the sculpture had been improperly installed, the owner could not prove that the contractor’s breach was the cause of the loss.

Outcome 

The owner was unsuccessful.

A choice of expert discipline

On By Geoff GreenIn Banking, Expert Witness, Non-bank lendingLeave a comment

Background

Astor provided funding in 2004 to restart mining operations of a Spanish Copper mine, secured by security over the shares in the mining company (technically described as a Pledge).

In 2008 there was litigation about whether Astor was entitled to enforce the Pledge, and whether a transfer of shares to Atalya was valid.  Astor was successful at Court, and it negotiated an arrangement by Atalya would pay €63.3m to keep the shares.

Most of the purchase amount was deferred until production had restarted under an arrangement which also included a so-called Cash Sweep.  That Cash Sweep required the mining company (ARM) to make additional payments from “Excess Cash,” as defined.  Notably, the agreement also prevented ARM from arranging senior debt unless that debt raising included arrangements for payment of €17.5m to Astor.

ARM was unable to arrange any new funding, and by the time of the GFC it was experiencing financial difficulties, and Astor agreed to amend the agreement so that ARM could borrow from associated companies to fund operating expenses.

ARM relied on that intra-group exemption to borrow “huge amounts” that Atalya had raised in the equity markets, which it used to restart and fund the rapid expansion of the mine.  Notably, ARM did not pay €17.5m to Astor, because it said that the intra-group borrowings were not “senior debt.”

Legal Action

Astor took legal action seeking repayment of the deferred balance.  The Court ruled that the intra-group borrowing did not trigger the requirement to pay the €17.5m, but the debt raising did result in Excess Cash of an amount which that hearing did not determine, thereby resulting in a repayment obligation of an unquantified amount.

That led to a further round of disputes (and the case described here): first, over the calculation of the amount of Excess Cash and repayment obligation; second, whether there was any entitlement to interest.

A choice of expert evidence?

The parties were given permission to tender submit reports by experts “in the field of accountancy and/or mine finance.”

Notably, the alternatives available under the “slashmark” resulted in Astor arranging a report from a finance expert, and ARM arranging a report from an accountancy expert, who, as the Court noted, “viewed the intended operation of the Excess Cash Clause from fundamentally different perspectives.”

Outcome

In Astor Management AG & Anor v Atalaya Mining PLC & Ors [2022] EWHC 628, the Court found that:

  • Both experts did their best to assist the Court and gave their evidence in a candid and straight-forward manner.
  • An “accounting approach” to the interpretation of Excess Cash was not appropriate. The parties were not accountants, and had negotiated the wording without accountancy advice, and the phrase had “no standard or universally accepted meaning in accounting or valuation literature.”
  • Finance was the appropriate field of expertise for the interpretation of the wording, and the finance discipline did provide a standard definition for a critical definition of “sustaining capital.”
  • ARM had “huge quantities of cash,“ and the Excess Cash definition made no distinction between cash derived from revenues and cash derived from any other source.
  • Astor was entitled to compound interest under the agreement from the date that Excess Cash became payable.

Expert evidence – “bordered on the absurd”

On By Geoff GreenIn Banking, Expert Witness, Non-bank lending, SME lendingLeave a comment

Background

The National Credit Code (the Credit Code) applies to credit provided wholly or predominantly for “personal, domestic or household purposes.” In practical terms, purpose is established by a borrower declaration – unless the declaration is found to be ineffective.

This case dealt with two specific loan transactions.  ASIC said that the two borrowers had lied in making those business purpose declarations – to access credit more readily available to unregulated borrowers – and that the lender would have detected the false declarations if it had made reasonable inquiries.  More significantly for the sole director, ASIC said that those bad lending outcomes evidenced a failure to take appropriate steps to ensure that the company did not contravene the Credit Code, which meant that the sole director had breached her statutory duty under s 180(1) of the Corporations Act.

A complex theoretical framework

Central to ASIC’s case was a long report from a credit expert, which set out a detailed business management framework said to be applicable to all business lenders.  The framework extended well beyond credit management, into general business and human resources management.

The Court described the Report as creating “the very real impression that [the expert] had essentially constructed in his own mind, based on his experience, an ideal sense of the Execution Framework and Minimum Requirements he considered were “necessary” for every lender to have in place, irrespective of its particular circumstances.”

Size does matter

The Court described the expert’s Execution Framework as proposing a gold standard, because it did not allow for adjustment to suit the circumstances of the lender, or the size of the loan.

The Court held that requiring a gold standard approach for a business seeking a loan of $2,000 was “as counter-intuitive as it is entirely unrealistic” and said that “there was considerable force” in submissions that “some of [his] opinions, with respect, bordered on the absurd” for example, requiring an applicant for a $2,000 loan “to prepare a detailed business plan…including an explanation of how the business will be marketed, including target market and pricing; a market analysis; staffing; a budget containing forecast revenues and costs; provision for premises including a lease agreement; and evidence of the equipment needed to undertake the business.”

Conclusions on the expert evidence

The Court noted that the expert had only been involved with one comparable business – an un-identified start up business – and that there was no evidence that any Australian non-bank small business lender followed any of the policies and procedures that he identified as necessary.

In terms of his evidence, in ASIC v Green County Pty Ltd [2025] FCA 367 the Federal Court held that:

  • It was “unsatisfactory and less than compelling in several critical respects…of low weight and [providing] little assistance.”
  • His opinions “did not seek to differentiate between lenders depending on the relative cost and burden.”
  • He “demonstrated a willingness to express definitive conclusions which did not withstand scrutiny when tested by reference to the particular circumstances.”
  • Some of his opinions “took a particular example to an extreme conclusion” – most notably expressing broad conclusions about the management of a portfolio of many thousands of loans, based on a review of only three loans.
  • He “was prepared to express inflexible and single-minded opinions in his report from which he was only willing to resile in limited respects (and even then, only reluctantly) when met with logical propositions countering the extremities of his opinions.”

Outcome

The Court held that the lender had breached the Credit Code, but dismissed the claims against the director, finding that although “[the lender] should have done more by way of reasonable inquiries…and that more generally [its] systems and training could have been better,” ASIC had not established the specific pleaded case that it brought.

Expert’s evidence accepted – on appeal

On By Geoff GreenIn Banking, Expert WitnessLeave a comment

In a previous blog I wrote about the decision in Cooper as Liquidator of Runtong Investment and Development Pty Ltd (In Liquidation) v CEG Direct Securities Pty Ltd [2024] FCA 6,

In that case, a liquidator attacked the granting of a mortgage to secure the borrowings of two associated companies, both guaranteed by its directors, as an “unreasonable director-related transaction.”

There was expert evidence about normal banking practice, provided by a forensic accountant who, notably (at least from my perspective) did not have experience in banking – which was not accepted by the Court.

In CEG Direct Securities Pty Ltd v Cooper as liquidator of Runtong Investment and Development Pty Ltd (in liq) [2025] FCAFC 47, the Full Court allowed the appeal.

Although the Full Court accepted that the granting of the mortgage was “for the benefit of the directors,” it did not accept that the liquidator had satisfied his evidentiary obligation to establish that a reasonable person in the company’s circumstances would not have granted the mortgage.

In relation to the expert evidence, a majority held that the primary judge was was wrong to reject the opinion of the expert as to whether a lender would regard the various associated entities as a “group” notwithstanding that they did not satisfy the Corporations Act definition of “related body corporate,” and was therefore wrong to reject her consequential opinion that cross-collateralisation in such circumstances was common practice amongst commercial lenders. It found that she was “clearly qualified to give opinion evidence on the critical issues on which she opined, ” noting that “the primary judge did not suggest otherwise.”

(relatively) New expert evidence rules in WA

On By Geoff GreenIn Concurrent evidence, Expert WitnessLeave a comment

In May 2024 the Western Australian Supreme Court revised its practice and procedure (Practice Directions) in relation to expert evidence.

First mentioned in the notice to practitioners is the adoption of the Harmonised Expert Witness Code of Conduct, by which the WASC joins the Federal Court and the Supreme Courts of ACT, NSW, Tasmania, and Victoria.

At the same time as it harmonises, however, the Court has also found some new approaches.  Two are noteworthy.

Scope, purpose and facts to be set out in writing

A party seeking leave to introduce expert evidence will be required to prepare a “minute,” setting out:

  • The field of specialised knowledge of the proposed expert.
  • the specific questions on which the proposed expert will be asked to opine.
  • the assumptions that the expert will be asked to make for each question.
  • the facts which are relevant to the expert opinion.

The other party will have the opportunity to express disagreement with those matters, in which case the court will adjudicate by directions hearing.

Comment: The PD requires specific questions and underlying assumptions to be formulated at a much earlier stage – a contrast to matters as New Aim Pty Ltd v Leung [2023] FCAFC 67 where the questions were not formulated until the day before the report was finalised. Those who prefer to know the answer before they ask a question may involve “shadow” (or “consulting” or “dirty”) experts more often.   

Conclave or Conference?

Most of us would regard “expert conclave” and “expert conference’ as interchangeable terms to describe the standard meeting of experts which produces a joint report setting of details of any differences in the experts’ opinions.

In Western Australia however, conclave and conference will describe two different, if similar, processes.

A conclave is a conference facilitated by a Registrar of the Court.  It will follow an agenda that will be agreed by the parties (or determined by the Court in a directions hearing) and includes strict confidentiality rules and communication protocols – which seemingly do not apply to conferences.

A conference is unfacilitated – or facilitated by someone other than a Registrar.  It will address differences in the reports, rather than follow a specific agenda.

Comment: The Conclave process will be attractive for those seeking to focus on a tight range of issues or facing a situation with significant differences between the experts.  Parties who seek a level of communication with the experts during the preparation of the Joint Report may prefer the conference pathway which is not subject to the strict confidentiality regime (noting that the conference process still maintains the requirement that experts “shall not act on any instruction or request to withhold or avoid agreement”).

Happily for the expert…

On By Geoff GreenIn Concurrent evidence, Expert Witness1 Comment

In an earlier blog I wrote about the decision in Elanor Funds Management Ltd v Alceon Group Pty Ltd [2023] FCA 1291, a matter in which a claim by the purchaser of a shopping centre  – who said that it has suffered loss and damage due to its reliance on information provided by the vendor – was unsuccessful.

The Court found that the purchaser’s valuation expert was not truly independent, although notably it specifically declined to criticise him for accepting the engagement.  However, the Court was critical of “unnecessary negative comments” which he made about his counterpart in a response affidavit, and a question he asked of his counterpart in the concurrent evidence session, which was said to demonstrate that he was acting “as an advocate.”

In Elanor Funds Management Ltd v Alceon Group Pty Ltd [2024] FCAFC 121 the Full Court reversed the original decision, finding for damages in favour of the purchaser.

The Full Court described the conclusion of the defendant’s valuer – that the market value of the centre significantly exceeded the transacted price agreed by two well-advised, sophisticated parties – as “surprising,” and preferred the evidence of the purchaser’s valuer.

The Full Court found that there was no sound basis to conclude that the “negative comments” were unnecessary.  In relation to the question asked of the other expert in the “hot-tub” the Court held:

The question [the purchaser’s valuer] asked was relevant. It was open to conclude that the raising of the question tended towards advocating rather than giving impartial evidence. However, it should be recognised that the evidence was given in the cut and thrust of litigation, more specifically in giving concurrent evidence where one expert might seek to convey why he considers his opinion to be preferable to the opinion of the other. This was the first time [the purchaser’s valuer] had given evidence in Court. Ultimately, it is a careful examination of the facts, the reasoning underlying the opinions, and the rationality of the views expressed, which is the surer guide to the correct outcome than the manner in which one particular piece of evidence is given or the fact that a witness temporarily lost his cool or slipped into a transient moment of what could be seen as advocacy.

Happily for the valuer, the Full Court held that the adverse credibility finding implicitly made against him “ought not have been made.”

Another for the trainwreck collection

On By Geoff GreenIn Expert WitnessLeave a comment

Background

A husband and wife sought compensation for “debilitating and lifelong” respiratory system injuries due to exposure to toxic chemicals from the installation of spray polyurethane foam (SPF) insulation in their home.

They said that the Installer failed to ensure that they were absent from the house during installation, and failed to ensure that the house was properly ventilated post the installation.

The Installer accepted that the chemicals involved were highly toxic – his staff were required to wear a full protective suit with breathing apparatus – and also that the claimants suffered from Reactive Airways Dysfunction Syndrome (RADS) as diagnosed – but disputed negligence and causation.

The Installer’s defence relied heavily on the evidence of an expert toxicologist – which was rejected in its entirety, and the plaintiffs won substantial damages.

The Installer appealed, arguing that the trial Judge was wrong to exclude all of the Toxicologist’s evidence, given that it was uncontradicted by the plaintiffs.

“Hired Gun” experts

In Duffy v Brendan McGee & Anor [2022] IECA 254, the Irish Court of Appeal set out the importance of expert impartiality, and commented on the challenges posed by the use of so-called “hired gun” experts:

“Very frequently, the evidence of the expert will be decisive to the outcome, particularly where, as here, there are complex scientific or medical issues arising.  Some of the most high-profile miscarriage of justice cases have arisen from serious failures on the part of experts.  It is right therefore that the law expects and demands the highest standards of experts.  This has found expression in many judgments and more recently, rules of court.

“Unfortunately, the hired gun syndrome is one with which all lawyers are familiar and is perhaps an inevitable by-product of adversarial litigation…It may be an overstatement to say that one can always get some expert to subscribe to one’s point of view, but there is nothing to prevent litigants with deep pockets consulting any number of experts until one is found who will support the case being made.  As matters stand, there is no obligation to disclose such information to an opponent.

The Evidence of The Toxicologist

The Appeal Court identified several concerns with the Toxicologist’s evidence, including:

  • “…rather extraordinarily” he had purported to give an opinion on Irish law which was “entirely beyond his competence and entirely inappropriate for a supposedly independent expert.”
  • He did not rely on his own research or expertise, but rather on two papers which were not independent peer reviewed scientific papers.
  • His evidence was predicated on the Installer’s instructions on strongly disputed crucial issues, and he “made no attempt to consider, and evidently avoided considering, any alternative scenario.”
  • He repeatedly accused the plaintiffs of lying, “referring to their evidence as deception and misrepresentation” and “steadfastly refused to withdraw his allegations of deception” despite clear evidence to the contrary.
  • He purported to give a medical opinion on psychiatric and skin complaints, “an area clearly outside his competence and advanced for no obvious purpose other than attempting, again improperly, to undermine the plaintiffs’ case.”
  • He relied upon documents from the EPA to support his arguments but in cross-examination “sought to disavow the documents, saying the EPA was wrong.”
  • He gave evidence that was contradicted by his own statements in a podcast interview titled “SPF Lawsuit Avoidance” (which is still accessible via youtube).

The Court concluded:

“…any one of these matters on its own would tend to strongly suggest an absence of objectivity and impartiality on the part of [The Toxicologist], but taken in combination, can only be described as a wholesale abdication by [The Toxicologist] of his duty as an expert witness.  I share the trial judge’s experience of never having encountered such an approach to giving evidence by an expert witness before our courts.  [The Toxicologist] impermissibly donned the mantle of a partisan advocate in his efforts to discredit the claim of the plaintiffs.

It is simply not possible to adopt some kind of curate’s egg approach to this evidence, as counsel for [the Installer] suggested, and I am satisfied that the trial judge was perfectly correct to exclude [the Toxicologist’s] evidence in its entirety.  There was in this case such an abject failure to comply with the most basic obligation of an expert, namely, to be objective and impartial, as to render all of [the Toxicologist’s] evidence inadmissible.”

Comment

There is no obligation to disclose “expert-shopping” in Ireland, which is true for most jurisdictions.  The South Australian District Court has an anti-shop framework – a party seeking an expert report must provide a copy of the instructions to the other parties (Uniform Civil Rules 2020, rule 74.2), and parties must share copies of all expert reports, whether they intend to rely upon them, or not (rule 74.3) – but I’m not aware of anything similar in any other jurisdiction.