In the matter of HIH Insurance Limited (In Liquidation); In the matter of HIH Insurance Limited (In Liquidation); In the matter of HIH Insurance Limited (In Liquidation); Cuong Ly v HIH Insurance Limited (In Liquidation) [2015] NSWSC 790

Supreme Court New South Wales

Medium Neutral Citation: In the matter of HIH Insurance Limited (In Liquidation); In the matter of HIH Insurance Limited (In Liquidation); In the matter of HIH Insurance Limited (In Liquidation); Cuong Ly v HIH Insurance Limited (In Liquidation) [2015] NSWSC 790 Hearing dates: 24, 25, 27 February 2015 Date of orders: 24 February 2015 Decision date: 24 February 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Various evidentiary rulings Catchwords: EVIDENCE – expert evidence – admissibility – supplementary report served late – where supplementary report responds to prospective failure of party to prove underlying assumptions by limiting assumptions – where within scope of existing expert evidence – admitted

EVIDENCE – documentary evidence – admissibility – apparently generally accepted analysis of data of financial statements of listed companies – where not bona fide in dispute and strict proof would cause undue delay and expense - admitted

EVIDENCE – relevance – document tendered to prove knowledge of incorrect accounting treatment of transactions – where document addressed taxation not accounting treatment of transactions – rejected

EVIDENCE – prior convictions – whether conviction admissible if person convicted is not party to civil proceedings in which it is tendered – admissions in previous criminal proceedings – exceptions to inadmissibility – rule in Hollington v Hewthorn - (Cth) Evidence Act 1995, s 92(2) – rejected

EVIDENCE – expert evidence – late service – where evidence proceeds by ongoing expert discourse – where evidence refines and clarifies issues and is within general scope defined by evidence already served – admitted Legislation Cited: (Cth) Corporations Act 2001 (Cth) Trade Practices Act 1976, s 83 (Qld) Evidence Act 1977, s 79 (NSW) Evidence Act 1995, s 66A, s 91, s 92, s 93 (NT) Evidence Act 1939 (SA) Evidence Act 1929, s 34A (UK) Civil Evidence Act 1968 Cases Cited: Ainsworth v Burden [2005] NSWCA 174 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) (2005) 215 ALR 301 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch 506; [1969] 3 All ER 897 Castrique v The Imrie (1870) LR 4 HL 414 Dawson v Great Central Railway (1919) 88 LJKB 1177 Giorgianni v The Queen (1985) 156 CLR 473 Hollington v F Hewthorn & Co Ltd [1943] KB 587; [1943] 2 All ER 35 In re Crippen (deceased) [1911] P 108 In the matter of HIH Insurance Limited (in liquidation); De Bortoli Wines (Superannuation) Pty Ltd v McGrath [2014] NSWSC 774 Ishac v David Securities Pty Ltd (unreported, NSWSC, Young J, 13 December 1991) Mobil Oil Corporation v Registrar of Trade Marks [1984] VR 25 National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700 Rakay v MacFarlane (1961) 78 WN (NSW) 488 Ramsay v Pigram (1968) 118 CLR 271 R v Fodera [2007] NSWSC 1194; (2007) 65 ACSR 109 R v Jacobs (No 5) [2013] NSWSC 946 R v Kay (1887) 16 Cox CC 292 R v Warden of the Fleet (1698) 12 Mod Rep 337, 339; 88 ER 1363 R v Williams [2005] NSWSC 315; (2005) 216 ALR 113 Roach v Page (No 26) [2003] NSWSC 1045 Sugden v Lord St Leonards (1876) 1 PD 154 The Queen v Hissey (1973) 6 SASR 280 Thomas v Connell (1838) 4 M&W 267; [1838] 150 ER 1429 Yorke v Lucas (1985) 158 CLR 661 Category: Procedural and other rulings Parties: Craig Richard Baldock and others (plaintiffs) Anthony Gregory McGrath in his capacity as Liquidator of HIH Insurance Limited (in liquidation) (first defendant) Christopher John Honey in his capacity as Liquidator of HIH Insurance Limited (in liquidation) (second defendant) Anthony Gregory McGrath in his capacity as Scheme Administrator of FAI Insurance Company Ltd (in liquidation and subject to a scheme of arrangement) (third defendant) Christopher John Honey in his capacity as Scheme Administrator of FAI General Insurance Company Ltd (in liquidation and subject to a scheme of arrangement) (fourth defendant) Anthony Gregory McGrath in his capacity as Scheme Administrator of HIH Casualty and General Insurance Ltd (in liquidation and subject to a scheme of arrangement) (fifth defendant) Christopher John Honey in his capacity as Scheme Administrator of HIH Casualty and General Insurance Ltd (in liquidation and subject to a scheme of arrangement) (sixth defendant) Anthony Gregory McGrath in his capacity as Scheme Administrator of CIC Insurance Ltd (in liquidation and subject to a scheme of arrangement) (seventh defendant) Christopher John Honey in his capacity as Scheme Administrator of CIC Insurance Ltd (in liquidation and subject to a scheme of arrangement) (eighth defendant) Representation: Counsel: G Sirtes SC with R White (plaintiffs) J Lockhart SC with R Higgins (defendants)