"...any 'shutting out' of the applicant
will be the result, not of the making of any unjust order or
miscarriage of discretion of the Court, but the applicant's own
actions in consenting to the making of the
Where parties to a dispute obtain orders by consent to appoint a
Chartered Accountant to prepare a 'forensic report' and
agree that the resulting report 'shall be binding', what
are the options for a party who seeks to dispute the findings of
These proceedings related to the estate of Schaja Ruschinek, who
died on 31 January 2008.
The respondent, Mr Tiernan, was the executor of the estate. The
will provided for a distribution of the estate to Mr
Ruschinek's two children, a son (the applicant in this matter)
The administration of the estate was the subject of extensive
litigation. In September 2014 the daughter began proceedings
against the executor seeking that he file an account of the
administration of the estate. After that account was provided, the
son sought repayment by the executor of $524,377 to the estate,
alleging discrepancies in the administration.
Consent orders made in December 2014, provided:
The parties within 7 days appoint
Sothertons Chartered Accountants to prepare a forensic report as to
the Defendant's administration of the estate of Schaja
Ruschinek deceased and the parties will make all relevant documents
available to Sothertons Chartered Accountants for the purpose of
preparing the forensic report, which shall be binding.
Mr L of Sothertons delivered a report in April 2015. The report
found that only $2,486 of the amounts challenged had been, in fact,
invalid payments from the estate.
The son approached Deloitte Touche Tohmatsu with a view to
obtaining a review of the Sothertons report. However, when the son
sought a timetable which would allow such a report to be prepared,
the Court refused the application, apparently on the basis that the
proposal that a report be prepared by Deloitte was inconsistent
with the consent orders for the preparation of a single joint
report. The Court also suggested that submissions that the
Sothertons report was not a 'forensic report' could be made
at trial and that the matters being raised could be issues for
cross-examination. A similar application subsequently made by the
son for leave to obtain and file material from Deloitte was also
The son nonetheless filed an affidavit setting out his concerns
regarding aspects of the Sothertons report as well as the conduct
of the administration of the estate by the executor. The executor
objected to large parts of this affidavit. These objections were
allowed: the Court's reasons included that the parties had
consented to, and were bound by, the order that the Sothertons
report would be binding; and that the impugned parts of the
affidavit represented the applicant's opinion, or were in the
nature of submissions.
The son appealed these findings, seeking an order that he be
permitted to lead admissible evidence, including expert evidence,
and that the Sothertons report be excluded in its entirety. He
...it was unreasonable and
plainly unjust for the Sothertons report to be relied on, in light
of the significant prejudice to the applicant and the alleged
manifest irregularities, deficiencies and unreliability of the
opinion evidence contained in it, and the fact that the report is
not shown to be based on specialised knowledge, so that [Mr L] has
usurped the function of the trier of fact ... [and] ...that the
judge failed to take account of the prejudice to the applicant in
not being permitted to adduce evidence to impugn the admissibility
or reliability of, or the weight to be attributed to, the
Sothertons report, and that she wrongly proceeded on the premise
that she was not shutting the applicant out from being able to deal
with the respondent's case.
The Court of Appeal rejected the son's application, finding
that, for the most part, it was misconceived. It said that:
...the question of admissibility
of the Sothertons report is yet to be determined at trial. In the
circumstances, the applicant has not been shut out from being in a
position to deal with the respondent's case ... [and] ...if the
applicant is unsuccessful at trial in excluding the Sothertons
report from evidence, and it is held to be binding in accordance
with the order made on 5 December 2014, any 'shutting out'
of the applicant will be the result, not of the making of any
unjust order or miscarriage of discretion of the Court, but the
applicant's own actions in consenting to the making of the
order and joining, pursuant to that order, in the instructing of
Sothertons in accordance with the terms of the joint
A jointly appointed single expert can be efficient in addressing
matters in dispute, particularly where the amounts are small or the
funds available are limited. However, agreeing to such an
appointment, and, in particular, committing to be bound by its
outcomes, can leave limited options to party who is unhappy with
In this case, it would appear that the applicant jumped the gun
in his challenge to the jointly appointed expert's report.
While the Court had indicated an intention to hold the parties to
their agreement in relation to that report, it had not precluded
the son from any form of challenge.
The ultimate outcome of any such challenge remains to be
determined at trial (which is scheduled to commence on 16 March
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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”
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).