Pastizzi Cafe Pty Ltd v Hossain (No 3) [2011] NSWSC 787

Supreme Court New South Wales

Medium Neutral Citation: Pastizzi Cafe Pty Ltd v Hossain (No 3) [2011] NSWSC 787 Hearing dates: 22 July 2011 Decision date: 22 July 2011 Jurisdiction: Equity Division Before: Gzell J Decision: Use of revised expert evidence refused. Catchwords: EVIDENCE - Expert Evidence - revised report - still no explanation of how expert moves from statement of facts to opinions expressed Legislation Cited: Uniform Civil Procedure Rules 2005 Practice Note SC Eq 5 Cases Cited: Australian Securities and Investments Commission v Rich [2005] NSWSC 149; (2005) 190 FLR 242 Category: Procedural and other rulings Parties: Pastizzi Cafe Pty Ltd (First Plaintiff) Deborah Ross (Second Plaintiff) Len Ross (Third Plaintiff) Miraj Hossain (First Defendant) Talukder Pty Ltd Enterprises (Second Defendant) Representation: Counsel A McInerney/M Bennett (Plaintiffs) J R Young (Defendants) Solicitors Michael Fitzgerald (Plaintiffs) Mooney & Kennedy Solicitors (Defendants) File Number(s): 2011/153417

EX TEMPORE Judgment 1I ruled on Wednesday, 20 July 2011, that two reports of Pino Fiorentino were inadmissible. I granted leave to the Defendants to seek to read a further affidavit of Mr Fiorentino limited to the question of solvency of the 1 st Plaintiff. Leave has been given to file in court an affidavit of Mr Fiorentino sworn on 21 July 2011. The reading of the affidavit is opposed. 2Some of the material contained in the new affidavit exceeds the factual matters to which I limited Mr Fiorentino in expressing another opinion. Those portions of the affidavit are not read. 3What Mr Fiorentino has done is to explain the structure of the affidavit by itemizing the sections of it and describing their contents. He then analyses what is required, legally, to establish proof of insolvency. In the next section he sets out the facts and assumptions upon which the opinions in the affidavit are based. 4It is in section H that he expressions his opinion. It commences: "55 In my opinion on the documents available abovementioned, there are transactions that I observed and indications that I have detected that may suggest that the first plaintiff may have been insolvent since 1 October 2009, the first day of the December 2009 quarter." 56 My opinion is that the first plaintiff is insolvent however same is not a concluded opinion because of both insufficient research and insufficient data as the available financial records are insufficient because they have not been kept in accordance with section 286 of the Corporations Act 2001(Cth) (as amended)." 5On that basis, the opinion, if admitted into evidence, is unlikely to have much weight as it is tentative. 6What Mr Fiorentino then does is to analyse the history of the obligation and liability of the company to the Australian Taxation Office, including an analysis of what additional debts for both GST and income tax might be raised since the 1 st Plaintiff has not lodged a return for the 2008 and subsequent income tax years. 7Having done this analysis, Mr Fiorentino concludes: "69 Based on the reasons set out above and the documents available Pastizzi Cafe Pty Limited is insolvent." 8Nowhere does Mr Fiorentino analyse the earnings of the company. Nor does he identity any assets that might be liquidated to discharge the debts to the ATO. Again, he has failed, in my opinion, to set out the basis of his reasoning in arriving at the conclusion at par 69. 9Mr Young who appears for the Defendants submits that Mr Fiorentino is entitled to draw his conclusion simply on the basis that tax debts have been outstanding for a long time. I do not share that view and it is not a reason enunciated by Mr Fiorentino in his affidavit. 10The affidavit therefore, in my view, suffers the same problem as existed in relation to the matter upon which I ruled on Monday and I reject the use of the affidavit.