Supreme Court New South Wales Medium Neutral Citation: Volvo Finance Australia Pty Limited v Waterfront Enterprises Pty. Ltd. (in liq) (No 1) [2019] NSWSC 1911 Hearing dates: 16 December 2019 Date of orders: 16 December 2019 Decision date: 16 December 2019 Jurisdiction: Common Law Before: Cavanagh J Decision: The first three paragraphs of the report dated 26 July 2017 forming exhibit C to the affidavit of Jason Andrew Ryan affirmed on 18 October 2019 are admitted and the balance of the document is rejected. Catchwords: EVIDENCE — opinion evidence — exceptions — expert opinion Legislation Cited: Evidence Act 1995 (NSW), s 79 Cases Cited: Bone v Wallalong Investments [2012] NSWSC 137 Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Rolleston v Insurance Australia Ltd [2016] NSWSC 1561 Category: Procedural and other rulings Parties: Volvo Finance Australia Pty Limited (Plaintiff) Waterfront Enterprises Pty. Ltd. (in liquidation) (First Defendant) Jason Paul Spencer (Second Defendant) Waterfront Group Pty Ltd (in liquidation) (Third Defendant) Barry Saad (Fourth Defendant) Representation: Counsel: E Anderson (Plaintiff) G Carolan (Fourth Defendant) Solicitors: Dowd & Co (Plaintiff) MCK Lawyers (Fourth Defendant) File Number(s): 2018/125351 Publication restriction: None REVISED EX TEMPORE Judgment 1. The plaintiff seeks damages from the fourth defendant by way of causes of action in conversion and detinue. The damages sought are substantial. 2. The proceedings arise out of the alleged retention by the fourth defendant of five vehicles and trailers which were the subject of chattel mortgages entered into between the plaintiff and the first defendant which is now in external administration. 3. It is said that the fourth defendant, Mr Saad, took possession of the vehicles and trailers on or around 22 December 2017 and that he failed to return them to the plaintiff when the plaintiff sought them. The plaintiff thus seeks damages in conversion and detinue as against the fourth defendant. 4. The plaintiff relies on an affidavit of Jason Andrew Ryan affirmed 18 October 2019. The defendant has objected to various parts of that affidavit but, in particular, objects to paragraph 15 of the affidavit. 5. In paragraph 15, Mr Ryan sets out that he commissioned a report following inquiries in relation to the five Mack trucks and trailers which are the subject of the issues in these proceedings. He annexes to his affidavit a document dated 26 July 2017 and a series of photographs of the trucks and trailers. 6. The fourth defendant objects to the report of 26 July 2017 on the basis that, if the document purports to be an expert opinion as to the value of the vehicles at a particular time, it does not satisfy the requirements of s 79 of the Evidence Act 1995 (NSW). 7. As set out in s 79 of the Evidence Act, if a person has specialised knowledge based on the person's training study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 8. As I understand its position, the plaintiff seeks to rely on the report of 26 July 2017 to establish what is set out in the last paragraph of the letter as follows: "I believe the Tri Axle units would be retailed at $350,000.00 Inc GST and the Quads at $365,000.00 Inc GST. The five axle Superliner combo could be around $390,000.00 Inc GST". 1. Mr Anderson, who appears for the plaintiff, points out that earlier in the document is a reference to the fact that Mr Ryan attended at various locations and sighted a number of the trucks and trailers and that all trucks were very late model and in good condition. He then referred to the trucks not being clean and stated that the tyres "seemed to be work (sic) quite low on few units however still within legal requirements." 2. Mr Ryan refers in the document to asking the drivers about the gear and the work, and receiving an abrupt response. He was asking about the sort of work the trucks had been doing and the amount of payment for the work. 3. He states: "Overall my comment for what [it's] worth is that this will not last and simply cannot support the value of the equipment associated." He goes on to say that he hopes he is wrong but the value of the equipment will diminish substantially in the coming months. 4. Other than that, and other than the photographs, there is really nothing in the document which allows the Court or the defendant to understand how Mr Ryan has come to his view as to the value of the vehicles as at the time of his inspection in July 2017. 5. It should be uncontroversial that for an expert opinion to be admissible under s 79 of the Evidence Act, the expert must disclose the facts and assumptions on which his opinions are founded, and those facts and assumptions must be proved by otherwise admissible evidence. The expert must give a statement of reasoning as to how the facts and assumptions relate to the opinion so stated: see Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 ("Dasreef"). 6. Mr Carolan, who appears on behalf of the defendant, directed my attention to the decision of McDougall J in Rolleston v Insurance Australia Ltd [2016] NSWSC 1561 ("Rolleston"). His Honour's decision was subject to an appeal but the appeal was dismissed. The issue in that matter related to the valuation of real estate. Whilst the asset or property is different, the same principles apply. 7. In Rollestone at [21], McDougall J referred to his earlier decision in Bone v Wallalong Investments [2012] NSWSC 137 at [20]–[26] ("Bone"), emphasising that it must be established that the facts on which the opinion is based form a proper foundation for the opinion, and that the intellectual basis of the conclusions should also be demonstrated. His Honour referred to the well-known case of Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 and in particular to the observations of Heydon JA at [85] of that decision as follows: "[t]he expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded." 1. As his Honour says, if that does not happen, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. 2. As McDougall J said in Bone at [26], in reference to the views of Heydon J in Dasreef: "I do not think that it is overstating his Honour's views to say that unless the reasoning of the expert can be deduced from the report, so as to enable satisfaction of the threshold test posed by s 79(1), then the report may not be admissible." 1. It may be that Mr Ryan has sufficient qualifications, expertise and experience to offer an opinion on the value of these five vehicles and five trailers at the point of his observation in July 2017. However, in my view, merely stating that he has observed them and that they were late model and in good condition hardly satisfies the other requirements of s 79 of the Evidence Act. 2. There is no indication of, for example, when the vehicles were purchased, how many kilometres each vehicle had travelled, whether the vehicles had been involved in other earlier accidents or claims, or any indication of comparable sales. Nor do I understand what he necessarily means by the words, "would be retailed at $350,000.00 Inc GST". 3. In the circumstances, the document at page 409 of the court book, being exhibit C to the affidavit of Jason Andrew Ryan affirmed 18 October 2019, is rejected. Addendum — 17 December 2019 1. Yesterday, I rejected page 409 of the court book, being exhibit C to the affidavit of Jason Andrew Ryan affirmed on 18 October 2019. As set out in my reasons, I rejected the document on the basis that its relevance was only that the author of the document offered an opinion as to the value of the trucks, or units, as of the time of his inspection on 26 July 2017. 2. This morning, Mr Anderson, counsel for the plaintiff, asked me to revisit the question of the admissibility of the document, and specifically sought to rely on the words contained in the first three paragraphs, "down to $120 per hour", on the basis that the document was a business record, and that the content of those paragraphs did not offend the principles to which I referred when rejecting the document yesterday. 3. Mr Carolan does not in principle object to the admission of those paragraphs, except that he says that the words, "Noted that all trucks are very late model and in good condition", are perhaps vague or meaningless, and that the sentence does not expose the author's reasoning process. He also says that the words in the third paragraph, commencing "I asked the drivers", contained hearsay of little weight. 4. He may be right, in that the content of the third paragraph may be of little weight, but I am satisfied that the paragraphs on which Mr Anderson seeks to rely are admissible and should be admitted as such. I vary the order that I made yesterday. The first three paragraphs of the report dated 26 July 2017 forming exhibit C to the affidavit of Jason Andrew Ryan affirmed on 18 October 2019, at page 409 of the court book, are admitted. The balance of the document will remain rejected. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2020