Graham Leonard Brand & Ors v Digi-Tech (Australia) Limited & Ors; Christopher Gerard Kelliher & Ors v Digi-Tech (Australia) Limited & Ors [2002] NSWSC 996

Graham Leonard Brand & Ors v Digi-Tech (Australia) Limited & Ors; Christopher Gerard Kelliher & Ors v Digi-Tech (Australia) Limited & Ors [2002] NSWSC 996

Mr Carter was not shown to have specialised knowledge qualifying him to express an opinion on the proper construction of clause 8.15, which was a matter for the court. He was qualified to give accounting evidence about accepted technical meanings and accounting definitions of particular words, and to say that the relevant phrase and the term "cash reserves" were not readily apparent or technical in an accounting context. Paragraphs or parts of the report that impermissibly construed the clause or used opaque expressions such as "from an accountant's perspective" were rejected, while paragraphs confined to admissible accounting definitions or relevant accounting evidence were allowed.

Jurisdiction
Australia
Judgment Date
23 May 2002
Procedural Posture
Supreme Court of New South Wales Equity Division Commercial List Proceedings Concerning Admissibility of Expert Evidence / Ex Tempore Ruling on Objections to Specified Paragraphs of Mr Paul Carter's Expert Report Dated 14 December 2000
Outcome
Objections upheld in part and dismissed in part; specified paragraphs of Mr Carter's report were rejected or allowed, with leave to the plaintiffs to adduce admissible evidence clarifying paragraphs 41 to 46 if possible.
Legal Topics
['expert Evidence' 'admissibility of Opinion Evidence' 'ultimate Issue Rule' 'specialised Knowledge' 'relevance' 'construction of Contractual Clause 8.15']
['evidence' 'civil Procedure' 'contract Law'] ['expert Evidence' 'admissibility of Opinion Evidence' 'ultimate Issue Rule' 'specialised Knowledge' 'relevance' 'construction of Contractual Clause 8.15']

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Procedural Posture

Supreme Court of New South Wales Equity Division Commercial List Proceedings Concerning Admissibility of Expert Evidence / Ex Tempore Ruling on Objections to Specified Paragraphs of Mr Paul Carter's Expert Report Dated 14 December 2000

Legal Issues

  1. 1 ["Whether paragraphs of an accountant's expert report concerning clause 8.15 of sale agreements were admissible." 'Whether the accountant had specialised knowledge qualifying him to express opinions on the proper construction of clause 8.15.' 'Whether evidence of accounting definitions and technical meanings of words such as cash, cash equivalents, liabilities and reserves was relevant and admissible.' 'Whether use of the expression "from an accountant\'s perspective" made parts of the report objectionable for lack of transparency.']

Ratio Decidendi

Mr Carter was not shown to have specialised knowledge qualifying him to express an opinion on the proper construction of clause 8.15, which was a matter for the court. He was qualified to give accounting evidence about accepted technical meanings and accounting definitions of particular words, and to say that the relevant phrase and the term "cash reserves" were not readily apparent or technical in an accounting context. Paragraphs or parts of the report that impermissibly construed the clause or used opaque expressions such as "from an accountant's perspective" were rejected, while paragraphs confined to admissible accounting definitions or relevant accounting evidence were allowed.

Court Disposition

Objections upheld in part and dismissed in part; specified paragraphs of Mr Carter's report were rejected or allowed, with leave to the plaintiffs to adduce admissible evidence clarifying paragraphs 41 to 46 if possible.

Orders

  • ['Paragraph 14 rejected.' 'Paragraphs 15 to 29 allowed.' 'Paragraph 30 rejected.' 'Paragraphs 31 to 33 allowed.' 'The last sentence of paragraph 34 rejected; the balance of paragraph 34 allowed.' 'Paragraphs 35 to 38 allowed.' 'Paragraph 39 rejected.' 'As to paragraph 40, the words "within the context" to the end of...