Asia Pacific Institute of Experts (APIEx)

𝘚𝘵𝘪𝘭𝘭𝘸𝘢𝘵𝘦𝘳 𝘗𝘢𝘴𝘵𝘰𝘳𝘢𝘭 𝘊𝘰. 𝘗𝘵𝘺 𝘓𝘵𝘥 𝘷 𝘚𝘵𝘢𝘯𝘸𝘦𝘭𝘭 𝘊𝘰𝘳𝘱. 𝘓𝘵𝘥 [2024] FCA 1382 is the latest in a run of Australian cases, this one with an expert apparently prepared to disagree with his own text book; and providing post-𝘕𝘦𝘸 𝘈𝘪𝘮 guidance about the need for transparency about instructions to an expert. The case was a class action claim against two state-owned electricity generators.  The plaintiffs said “late bidding” in the Australian National Energy Market was an abuse of market power, intended to block competitive conduct by other generators. The defendants said that it was a legitimate trading strategy. There was extensive expert evidence with multiple reports from five economists. The Court described the Plaintiffs’ expert as having “an extensive and impressive career as an economist” and recognised that he was the author of a “seminal work” 𝘔𝘢𝘳𝘬𝘦𝘵 𝘗𝘰𝘸𝘦𝘳 𝘢𝘯𝘥 𝘔𝘢𝘳𝘬𝘦𝘵 𝘔𝘢𝘯𝘪𝘱𝘶𝘭𝘢𝘵𝘪𝘰𝘯, and the joint author of an important analysis of market manipulation in energy markets. Notwithstanding those impressive credentials, the Court rejected much of his evidence, finding that: – Some of the economic opinions expressed by him during the trial “appeared both contrary to economic orthodoxy and contrary to his own previously expressed statements of economic principle,” noting that he gave evidence that the “classic” test for substantial market power – which he proposed in Market Power and Market Manipulation – should not be applied. – His approach was “more akin to that of a prophet or an evangelist than that of an independent expert economist.” – He contended that there were “special” principles to be applied in the case of electricity markets but “ultimately could not articulate any such principles.” – The approach he used in analysing market power could not “be reconciled with orthodoxy or principle” and should be rejected. The Court also expressed concern “about the approach to soliciting [his] opinion” which it described as having “skirted very close to what the Full Court identified as an inversion of the process – using the expert’s specialised knowledge in order to identify the questions that should have been asked and the assumptions that should have been given.” The Court went on to say: “I do not say it occurred in this case, but attempts to shield the actual instructions given to an expert witness, and perhaps also to shield draft opinions, give little comfort to a Court which expects to be able to rely on expert evidence given honestly, dispassionately, and impartially.” #expertevidence #economicexpert #expertwitness Tom Nevin June Tan Paul Heath Jonathan Ellis Melvin Loh Iain Potter Leslie Chew PBM, SC Shaun Walbridge FCCA FAE QDR Juan Carlos Venegas FAIA FCPA ICFS FIICFIP Mark Tottenham Geoffrey Campey Bruce Debenham Campbell Jaski Thomas Caldow Kristy Kerswell Beryl Vaughan Seán McNally FCIArb, MRICS, FACICA, Oliver Watts Nicolas Piastra    

A case from the Western Australian Supreme Court of Appeal dealing with Judicial assessment of Expert valuation evidence – Kipoi Holdings Mauritius Ltd v Kirman & Anor as Administrators of Tiger Resources Ltd (subject to DoCA). This was an appeal from a decision approving the transfer of shares at nil consideration – which requires the court to be is satisfied that the transfer would not unfairly prejudice the owner's interests – as part of the implementation of a Deed of Company Arrangement. The key question was whether the shares had any residual value.   Two of the parties had an “expert team” approach – an valuer who valued the business, and an insolvency practitioner providing an opinion about the “distressed sale discount” to be applied to that value. One of the parties called a single expert – an insolvency practitioner (the Solo Expert), whose evidence was preferred at first instance. The Appellant argued that the judgement failed to give legally adequate reasons, because it failed to engage with the differences between the experts. It also argued that the Court was wrong to prefer the opinion of the Solo Expert on valuation given that he had “candidly admitted” that valuation was outside his expertise. The Court of Appeal held that: – There was a “marked disparity” in the distressed sale discount, ranging from 5% to 55%. – Evidence on the availability of funding to support the marketing period “entered into the realm of speculation.” – The Solo Expert “frankly recognised that he was not a valuer” (he said that his comments about valuation issues were made 'as a vendor'). – Characterisation of the assessment of the expert evidence as ‘very finely balanced’ was seemingly at odds with the “disparate opinions” and the “material differences” between the experts on a number of critical issues. – There was virtually no reference to significant concessions made in oral evidence, notably including concessions by one expert that he was not formally briefed as an expert witness, and that he had provided distressed sale discount figures without knowledge of the specific assets of the company or the circumstances. – To give weight to the Solo Expert’s valuation evidence, when by his own admission, he lacked relevant specialised knowledge or experience as a valuer “would be to usurp the fact-finding function of the primary court as a trier of fact”. – There was “such a marked absence of consideration and explanation connecting the issues raised at trial” that the Court should conclude that there was a failure to provide legally adequate reasons. The Appeal was successful. #expertevidence #valuationexpert #expertwitness Tom Nevin June Tan Paul Heath Jonathan Ellis Melvin Loh Leslie Chew PBM, SC Shaun Walbridge FCCA FAE QDR Juan Carlos Venegas FAIA FCPA ICFS FIICFIP Mark Tottenham Eavanna FitzGerald Geoffrey Campey Bruce Debenham Campbell Jaski Thomas Caldow Kristy Kerswell Beryl Vaughan Seán McNally FCIArb, MRICS, FACICA, Oliver Watts

A case from the Western Australian Supreme Court of Appeal dealing with Judicial assessment of Expert valuation evidence – Kipoi Holdings Mauritius Ltd v Kirman & Anor as Administrators of Tiger Resources Ltd (subject to DoCA). This was an appeal from a decision approving the transfer of shares at nil consideration – which requires the court to be is satisfied that the transfer would not unfairly prejudice the owner's interests – as part of the implementation of a Deed of Company Arrangement. The key question was whether the shares had any residual value.   Two of the parties had an “expert team” approach – an valuer who valued the business, and an insolvency practitioner providing an opinion about the “distressed sale discount” to be applied to that value. One of the parties called a single expert – an insolvency practitioner (the Solo Expert), whose evidence was preferred at first instance. The Appellant argued that the judgement failed to give legally adequate reasons, because it failed to engage with the differences between the experts. It also argued that the Court was wrong to prefer the opinion of the Solo Expert on valuation given that he had “candidly admitted” that valuation was outside his expertise. The Court of Appeal held that: – There was a “marked disparity” in the distressed sale discount, ranging from 5% to 55%. – Evidence on the availability of funding to support the marketing period “entered into the realm of speculation.” – The Solo Expert “frankly recognised that he was not a valuer” (he said that his comments about valuation issues were made 'as a vendor'). – Characterisation of the assessment of the expert evidence as ‘very finely balanced’ was seemingly at odds with the “disparate opinions” and the “material differences” between the experts on a number of critical issues. – There was virtually no reference to significant concessions made in oral evidence, notably including concessions by one expert that he was not formally briefed as an expert witness, and that he had provided distressed sale discount figures without knowledge of the specific assets of the company or the circumstances. – To give weight to the Solo Expert’s valuation evidence, when by his own admission, he lacked relevant specialised knowledge or experience as a valuer “would be to usurp the fact-finding function of the primary court as a trier of fact”. – There was “such a marked absence of consideration and explanation connecting the issues raised at trial” that the Court should conclude that there was a failure to provide legally adequate reasons. The Appeal was successful. #expertevidence #valuationexpert #expertwitness Tom Nevin June Tan Paul Heath Jonathan Ellis Melvin Loh Leslie Chew PBM, SC Shaun Walbridge FCCA FAE QDR Juan Carlos Venegas FAIA FCPA ICFS FIICFIP Mark Tottenham Eavanna FitzGerald Geoffrey Campey Bruce Debenham Campbell Jaski Thomas Caldow Kristy Kerswell Beryl Vaughan Seán McNally FCIArb, MRICS, FACICA, Oliver Watts

Summary: APIEx Symposium 2024 - A Focus on Valuation in Dispute Contexts Asia Pacific Institute of Experts (APIEx) is incredibly grateful to everyone who attended the Symposium, the participation and engagement made this event a resounding success! It was a special event, which allowed APIEx to partner with International Valuation Standards Council (IVSC), IVAS - Institute of Valuers and Appraisers, Singapore and Intellectual Property Office of Singapore (IPOS). A special thank you to our esteemed speakers and panelists for sharing their invaluable insights and expertise. Your contributions were truly inspiring and have sparked meaningful discussions that will continue to shape our field. We are delighted to share some memorable moments from the event. Check out the photos here: https://lnkd.in/gi5GisUH Looking forward to seeing you all at our future events! #APIExSymposium2024 #Valuation #DisputeResolution

Thanks for sharing this Thomas Caldow, reposted to the APIEx audience. #expertevidence #expertwitness #courtexpert Tom Nevin June Tan Paul Heath Iain Potter Jonathan Ellis Ben Chester Cheong Melvin Loh Leslie Chew PBM, SC Shaun Walbridge FCCA FAE QDR Juan Carlos Venegas FAIA FCPA ICFS FIICFIP Mark Tottenham Eavanna FitzGerald Geoffrey Campey Bruce Debenham Campbell Jaski Kristy Kerswell Beryl Vaughan

I'm posting to share an Australian case in which the Federal Court refused to allow a litigant to cross-examine its own #expertwitness – Cytec Industries Inc. v Nalco Company (No 4) [2024] FCA 1318 (15 November 2024) – because to do so might undermine the Joint Expert process. The Court said (my emphasis added): “[70]  [The Defendant] submits that the evidence of [its own expert], in agreeing to the passage from the Joint Expert Report quoted above, should not be determinative..[and] complains that it was not permitted to “explore this during the oral expert evidence” on the basis that construction was a matter for the court. [71] The proposition advanced by [The Defendant] is, in effect, that it ought to have had an opportunity to cross examine its own witness in order to enable it or him to retreat from a clear concession that he made in joint session and produced in a joint expert report. [Its expert] was a careful and well qualified witness whose evidence reflected a clear understanding of the issues in the case. He joined in the answer given above in a manner that was consistent with the construction that I have (separately) adopted. [72] There are three reasons why [The Defendant] was not permitted to cross examine its own witness. [73] First, to do so would undermine the process of the preparation and presentation of joint expert reports and evidence. Unless an expert witness wishes to retract evidence given because it contains a mistake or that witness wishes to change the opinion expressed, 𝐚 𝐯𝐢𝐞𝐰 𝐞𝐱𝐩𝐫𝐞𝐬𝐬𝐞𝐝 𝐢𝐧 𝐚 𝐣𝐨𝐢𝐧𝐭 𝐞𝐱𝐩𝐞𝐫𝐭 𝐫𝐞𝐩𝐨𝐫𝐭 𝐬𝐡𝐨𝐮𝐥𝐝 𝐠𝐞𝐧𝐞𝐫𝐚𝐥𝐥𝐲 𝐛𝐞 𝐚𝐜𝐜𝐞𝐩𝐭𝐞𝐝 𝐨𝐧 𝐢𝐭𝐬 𝐟𝐚𝐜𝐞. [74] Secondly, as I have noted, questions of construction are for the Court. In the present case, the proposition that [The Defendant] advances…been made to the Court and has been taken into consideration in construing the claims… [75] Thirdly, the substantive submission advanced by [The Defendant] is…a circular proposition [that] is repugnant to the authorities that require the claims to be understood according to their terms, albeit in the context of the specification as a whole…” #expertevidence #courtexpert Tom Nevin June Tan Paul Heath Iain Potter Jonathan Ellis Ben Chester Cheong Melvin Loh Leslie Chew PBM, SC Shaun Walbridge FCCA FAE QDR Juan Carlos Venegas FAIA FCPA ICFS FIICFIP Mark Tottenham Eavanna FitzGerald Geoffrey Campey Bruce Debenham Campbell Jaski Thomas Caldow Kristy Kerswell Beryl Vaughan

I'm very pleased to have the capacity to add some Australian content to the APIEx page – thank you. To kick things off, here's an interesting case from the Victorian Supreme Court where there was a concern about whether a yet-to-be tabled #expertreport might (in effect, and my words) usurp the role of the Court, by defining contract terms. In Lighthouse Corporation (Capital) Pty Ltd v One76 Pty Ltd [2024] VSC 623 an expert was engaged to provide an opinion about the meaning of words used in a contract. The defendants said the report should not be admitted. They submitted that “[7]… the proposed evidence, if admitted, would go well beyond the legitimate use of expert opinion evidence and seeks to have the Court either ignore or rewrite the plain text of the agreements.” The Court held that “[14] …it would be inappropriate to exclude the proposed evidence without both receiving [the expert’s] report and any report relied on by the defendants in response and hearing all of the evidence and arguments at trial concerning the proper construction of the agreements. This was because “[24]… If the proposed evidence is accurately described as evidence of the industry understanding of particular terms, or that a particular word or expression has a technical meaning relevant to the contract as was found to be the case in Quasar Resources such evidence may be found to be of assistance in determining the meaning of a particular word or term in the agreements.” #expertevidence #courtexpert Tom Nevin June Tan Paul Heath Iain Potter Jonathan Ellis Ben Chester Cheong Melvin Loh Leslie Chew PBM, SC Shaun Walbridge FCCA FAE QDR Juan Carlos Venegas FAIA FCPA ICFS FIICFIP Mark Tottenham Eavanna FitzGerald Geoffrey Campey @Bruce Debenham Campbell Jaski Thomas Caldow Kristy Kerswell Beryl Vaughan

EVENT: Asia Pacific Institute of Experts (APIEx) & Singapore Chamber of Maritime Arbitration (SCMA) DEBATE 2025: This House Believes That A Maritime Expert Who Previously Conducted Investigations Should Only Be A Witness Of Fact, Not An Expert Witness WHEN: 21 January 2025, 4.15pm – 7.00pm (SGT) WHERE: The Big Picture, Capital Tower, Level 9, 168 Robinson Road, Singapore 068912 Registration: https://lnkd.in/gJfAezeQ About: Join the Asia Pacific Institute of Experts (APIEx) and the Singapore Chamber of Maritime Arbitration (SCMA) for our first ever joint debate! Our esteemed panel of debaters (John Gibson (Brookes Bell), Shanna Ghose (Hill Dickinson LLP), Wole Olufunwa LL.M. FCIArb (Wikborg Rein) and Toby Stephens (HFW)) probably have over a century of arbitration experience between them. Ably moderated by Andrew Moran KC , the debaters will engage in what promises to be an entertaining and fun debate, but at the same time nuanced and thought provoking. The debate aims to raise interesting questions about the roles and limitations of maritime experts in dispute resolution proceedings, as such Chatham House Rules will apply. The intention is to start the year off with meaningful discussions. Offering some post New Year food for thought on the broad issues relating to the intersection where experts meet the lawyers and their legal proceedings.

Event: APIEX SYMPOSIUM 2024: A Focus on Valuations in Disputes Location: NTUC Centre, Room 701, Level 7, One Marina Boulevard, Singapore 018989 Date: 28 November 2024, 1.00pm - 6.00pm (Singapore Time, GMT +8) As the complexity of disputes has increased, the rigour and sophistication with which Courts and Tribunals assess valuations has also become more intense. Asia Pacific Institute of Experts (APIEx) is delighted to host a half day Symposium dedicated to valuations and supported by the IVAS - Institute of Valuers and Appraisers, Singapore (IVAS), the Intellectual Property Office of Singapore (IPOS) and the International Valuation Standards Council (IVSC). To register: please see comments: https://lnkd.in/ghgi6TCv Session 1: “The Use of Valuation Standards in Disputes” Nicolas Konialidis, CFA, CVA, ASA-BV (Director, Asia, International Valuation Standards Council (IVSC)) Shu Mei, Hoon (洪淑媚) (Director, Drew & Napier LLC) Iain Potter (Committee Member, Asia Pacific Institute of Experts; Executive Vice President, J.S. Held LLC) Session 2: The Use of Information in Valuation Disputes - Legal and Practical Perspectives Kok Keong Lie (CVA - Council Chairperson, IVAS - Institute of Valuers and Appraisers, Singapore ; Partner, Co-Head, Mergers & Acquisitions and Valuation Leader, PwC Singapore) Jonathan Ellis (Committee Member, Asia Pacific Institute of Experts; Partner, HKA) Vanathi Ray (Director, Providence Law Asia LLC) Devathas Satianathan (Partner, International Arbitration, Construction & Projects, Rajah & Tann Asia) Session 3: Valuing IP – Unique Challenges and Strategies to Deploy in Disputes Gabriel Ong (Principal Legal Counsel, Hearings & Mediation Department, Intellectual Property Office of Singapore) Jiamin Leow (Partner, WongPartnership LLP) Alex Haigh (Managing Director, Brand Finance, Asia Pacific) Soo Earn Keoy (Global Consulting Deloitte Private Leader, Southeast Asia Deloitte Private) Ruth Stackpool-Moore (Portfolio Manager, Global International Arbitration, Omni Bridgeway) Asia Pacific Institute of Experts (APIEx) in #Australia Geoff Green (External Relations Liaison for Australia, Asia Pacific Institute of Experts; Principal, Harbourside Advisory) Opening and closing remarks: Leslie Chew PBM, SC (President, Asia Pacific Institute of Experts; Dean, School of Law at the Singapore University of Social Sciences (SUSS); Consultant, Peter Low Chambers LLC) Gregory Vijayendran SC (Vice President, Asia Pacific Institute of Experts; Former President, The Law Society of Singapore; Partner, Dispute Resolution, Rajah & Tann Asia, Singapore)

Just over 3 weeks to go now!