Australia: 'Sharp edge' of oppression: expert valuation evidence

Expert matters
Last Updated: 25 September 2013

William Buck (WA) Pty Ltd v Faulkner [No 3] [2013] WASC 40

Ordinarily, the exchange and receipt of expert evidence would be routine and uncontentious, at least from a procedural perspective.

In this issue of Expert Matters, Ben Mahler looks at a peculiar case in the Supreme Court of Western Australia where a plaintiff had not prepared expert evidence for a key aspect of their own oppression case shortly before trial, and therefore sought to block the defendant's expert evidence from being adduced.

Of interest, in this case it seems to have worked, albeit to the regret of the Judge.


CSF Corporate Pty Ltd ('CSF') acting as the trustee for Mr Craig Faulkner's trust held a 5% shareholding ('the shares') in William Buck Holdings (WA) Pty Ltd ('William Buck', the defendant).

CSF sought review in the statutory oppression action in the form of either:

  • the winding up of William Buck
  • orders requiring the purchase of the shares at a value to be determined.

William Buck engaged an expert valuer, Ms P, to prepare a valuation of CSF's minority shareholding in William Buck. CSF objected to this expert evidence on the basis that:

  • timetabling directions did not address expert evidence
  • no leave to file expert evidence had been granted
  • underlying facts supporting the opinion had not been established in accordance with the Makita1 principles.

CSF argued that it would be prejudiced if the evidence was allowed to be adduced.

The involvement of experts

Justice Martin noted that "It is apparent that leave to adduce expert evidence at the trial is required. Ordinarily, the exchange and receipt of such evidence would be routine and uncontentious, provided the issue is dealt with a reasonable period before trial, sufficient to allow each party the opportunity to secure the services of an expert, to obtain a report and for the experts to confer before trial in an endeavour to distil and crystallise true issues between them (if any)."

But in this case, it was contentious.

CSF stated that it had assumed that "were the court to conclude a buy out order for the minority holding of shares was the appropriate remedy (rather than winding up) that the hearing should stop at that point and an expert report commissioned, then for the matter to be brought back later for a subsequent value determination."

Two months after receiving Ms P's expert evidence, and more than a year after filing, CSF had:

  • not sought clarification with the Court as to whether its procedural assumption was valid
  • "Not yet even engaged its own expert valuer, let alone reached a point of being in a position to provide an expert report about the value of its minority shareholding interest, in order to exchange a report prior to trial or permit a pretrial expert conferral"
  • not even requested the financial documents required to prepare any valuation.

Justice Martin expressed his surprise and dismay at CSF's lack of preparation several times, noting that:

  • "The 'sharp edge' of [CSF's] statutory oppression action is all about the assessed value of the minority shareholding"
  • the expert valuation evidence was "plainly relevant, indeed at the heart of the action" of CSF's alternate relief
  • Mr Faulkner was himself an accountant
  • "Not having yet engaged an expert to advise [CSF] as to the likely value of his minority shareholding in the corporate defendant is unhelpful"
  • he (Justice Martin) was "not attracted to the prospect of there being utility in carving off a valuation aspect of the present dispute for separate and later determination"
  • the parties had been to court-sponsored mediation and "it is difficult to see how any meaningful settlement discussion could occur in circumstances where the base value issue had not been professionally evaluated on both sides."

The decision

"Regrettably, however, I assess it overall to be unjust to allow only one side to adduce expert evidence at trial, or to effectively deprive the other party of that opportunity [and the] necessary leave to adduce expert evidence has not been granted to this point.


In what are unsatisfactory circumstances overall, an unfairness in giving leave to adduce expert evidence in a practical sense to only one side now, leaving the other side vulnerable, is the prevailing consideration."

However, after consulting with both sides, Justice Martin refused to provide leave to adduce the expert evidence on the grounds that both sides were amenable to using an independent assessor to decide the issue of the value of the shares. He saw this as a potential approach to resolve the issue of prejudice, but without a delay to the timetable.

The source of Justice Martin's 'regret' may well be reflected in his wry opening comment that the proceedings "continue to generate high levels of interlocutory disputation seemingly unable to be resolved by the usual conferral processes."


The Court must balance fairness and efficiency in its processes. More and more often, we see the Court intervening to ensure efficiency when relating to expert evidence. This case reinforces that fairness is the 'prevailing consideration', and will frequently triumph over efficiency concerns. This may apply even when the 'unfairness' is the fault of the party being prejudiced, and when that party had ample opportunity to seek correction or action at an earlier date.

Although Justice Martin managed to avoid a disruption to the timetable in this case and thus not lose efficiency, it appears from his tone that, had both sides not accepted the potential use of an independent assessor in relation to the expert valuation issue, he may have delayed the timetable rather than risk prejudice to one side.

To avoid doubt and potential trial delays, it is advisable to ensure leave to adduce expert evidence is granted early on, even if it appears obvious that it relates to the 'sharp edge' of the proceedings!


1Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.