EVIDENCE
78 Mr Du Bray sought to rely on three affidavits in opposition to the creditor's petition: an affidavit affirmed by him; an affidavit sworn by Mr Vella which annexed a report prepared by him dated 3 March 2015; and an affidavit affirmed by Mr Andrew Chen. Before addressing the contents of those affidavits, it is necessary to say something about Mr Du Bray's compliance with the orders made by the Court in relation to the filing of evidence to be relied on by him in opposition to the creditor's petition.
79 It would be fair to say that once judgment was handed down in Du Bray (No 1) and leave was granted to amend the creditor's petition, the applicant pressed for an early hearing of the creditor's petition. The hearing of the petition was, however, initially delayed because Mr Du Bray applied for leave to appeal the judgment in Du Bray (No 1). That application was in due course dismissed and the matter was promptly listed for a case management hearing on 29 October 2019. At that case management hearing, Mr Du Bray was ordered to file and serve his notice of grounds of opposition to the creditor's petition and any evidence upon which he proposed to rely in relation to the grounds of opposition by 19 November 2019.
80 Mr Du Bray filed and served his notice of grounds of opposition on 19 November 2019 as was required. He did not, however, file or serve any evidence. That resulted in the adjournment of the next case management hearing from 26 November 2019 to 5 December 2019. On the day prior to that case management hearing, Mr Du Bray filed and served his affidavit. That affidavit referred and exhibited a folder of documents which was said to be a confidential exhibit.
81 At the case management hearing on 5 December 2019, the applicant again pressed for an early hearing of the creditor's petition. She also foreshadowed an application to strike out or summarily dismiss Mr Du Bray's notice which stated his grounds of opposition to the creditor's petition on the basis that it was an abuse of process because it sought to relitigate his unsuccessful application to set aside the registration of two of the New Zealand High Court judgments. The Court listed the creditor's petition for hearing on 3 March 2020. The applicant was ordered to file and serve her written submissions by 3 February 2020, Mr Du Bray was ordered to file and serve his written submissions by 17 February 2020 and the applicant was ordered to file and serve her written submissions in reply by 24 February 2020. Mr Du Bray, who was represented by counsel, said nothing at the case management hearing about filing or seeking to rely on any further evidence. No orders were made which permitted the filing of any further evidence. As events transpired, the applicant did not seek to strike out Mr Du Bray's notice of opposition to the creditor's petition. The creditor's petition was heard on 3 March 2020.
82 Despite the absence of any order permitting him to file any further evidence, Mr Du Bray filed the affidavit of Mr Vella on 13 December 2019 and the affidavit of Mr Chen on 24 January 2020. No explanation was ever provided for the late filing of those affidavits. Not surprisingly, in those circumstances, those affidavits were objected to at the hearing of the petition. Those objections and the rulings made in relation to them will be addressed shortly.
83 Mr Du Bray's affidavit contained a short and fairly anodyne account of how he came to be debarred from playing any active role in the High Court of New Zealand proceedings against him. It was and is uncontroversial that Mr Du Bray was debarred and accordingly prevented from filing any further evidence in those proceedings from 14 July 2014, when the Court of Appeal of New Zealand allowed the applicant's appeal from the trial judge's order discharging the unless order. As noted earlier, however, Mr Du Bray had filed extensive evidence, including expert evidence from a valuer, prior to being debarred and including the time of his debarring order and the trial judge had regard to that evidence in determining the matter. It was also uncontroversial that Mr Du Bray was, by reason of him being debarred, prevented from appearing at the final hearing before the trial judge on 4 and 5 May 2015 and was therefore effectively prevented from testing the applicant's evidence during the course of that hearing, or making any submissions in opposition to the applicant's case or in support of his case.
84 Mr Du Bray's affidavit also included some evidence concerning the fact that, as a result of the freezing orders made against him, the applicant had been able to access money held in various bank accounts. He provided a list of withdrawals from certain accounts totalling AU$329,392.49 which he asserted were made by or on behalf of the applicant. The argument ultimately advanced by Mr Du Bray based on amounts that the applicant was able to extract from him or entities associated with him by virtue of the freezing orders is addressed later.
85 More controversially, Mr Du Bray's affidavit contained a series of assertions, arguments or statements of belief or opinion concerning findings made by the trial judge about the valuation of certain assets. Not surprisingly, the applicant objected to that evidence.
86 In summary, Mr Du Bray said that he believed that a number of those findings were incorrect. He produced a table which purported to compare findings made by the trial judge about the value of certain assets with his views, assertions or beliefs concerning the same. For the most part, the basis of the views expressed by Mr Du Bray about the value of the assets went entirely unexplained. Where he did purport to explain the valuations he ascribed to certain assets, the explanation amounted to nothing more than bare assertion or argument. His counsel conceded, at the hearing, that Mr Du Bray did not "develop [his assertions or arguments about the asset valuations] very well". That was an understatement. Somewhat confusingly, counsel for Mr Du Bray ultimately pressed the tender of this evidence on the limited basis that it showed that there was a "proper basis" for contending that there is a doubt about the value of the assets. He did not press it on the basis that it was evidence of the actual value of the assets.
87 Mr Du Bray's evidence concerning his views, beliefs or assertions relating to the value of certain assets was ultimately admitted on the strictly limited basis that it was evidence of just that. It was not admitted as evidence of the actual value of the assets at the relevant time. For the reasons given later, Mr Du Bray's views, beliefs and assertions about the value of assets is deserving of little, if any, weight in determining whether there were good or substantial reasons for doubting that there was, behind the judgment, a debt in truth and reality owing to the applicant.
88 As noted earlier, Mr Du Bray also referred in his affidavit to him having commissioned a report from Mr Vella in February 2015 in response to what he said was an order made by the trial judge. In fact, the order to which Mr Du Bray referred in that context was one of the orders made by a different judge of the High Court of New Zealand on 5 February 2015 as part of the suite of orders referred to as the freezing orders. Contrary to the suggestion by Mr Du Bray in his affidavit, that order did not request or require him to commission a valuation report. It simply required him to provide the applicant "within 24 hours and at [Mr Du Bray's] expense any information and documents that the [applicant] requests as to the ownership, status, value, acquisition, disposition and location of the assets including bank and credit card statements". There is no evidence to suggest that the applicant requested Mr Du Bray to provide information concerning the value of his assets.
89 As also noted earlier, Mr Du Bray stated in his affidavit that he sent Mr Vella's report to the trial judge and the applicant. It is entirely unclear why he did so. The apparent suggestion that his reasons for doing so had something to do with the freezing orders is entirely without foundation. Indeed, if that is what was intended to be suggested by Mr Du Bray in his affidavit, it was, and is, entirely disingenuous. That is apparent from the introductory paragraphs of the report prepared by Mr Vella, dated 3 March 2015, in which Mr Vella noted that he had been asked to prepare a report setting out his opinion as to the value of Mr Du Bray's interests in Du Bray & Associates Pty Limited and that the purpose of the report was to assist Mr Du Bray and his legal advisers in relation to the proceedings between Mr Du Bray and the applicant. Curiously, the report also noted that he had been asked to "critique" the reports of Mr Dobson dated 16 November 2012 and Mr Tony Weber dated 18 January 2013. Mr Dobson was the expert valuer who had been retained by Mr Du Bray and whose report had been filed in the proceedings before the trial judge before Mr Du Bray was debarred. Exactly why Mr Du Bray would want another person to critique his own expert's report is entirely unclear.
90 It may readily be inferred that, if Mr Du Bray sent the report to the trial judge in March 2015, as he said he did, he did so despite being aware that he had been debarred from taking any further part in the proceedings and despite the fact that there was no order giving him leave to file or rely on any further evidence.
91 Mr Du Bray sought to rely on Mr Vella's report in this proceeding. It was annexed to an affidavit sworn by Mr Vella and included in the exhibit to Mr Du Bray's affidavit. The applicant objected to the tender. The question of its admissibility was reserved to be dealt with in this judgment. For the reasons that follow, Mr Vella's report is not admitted as evidence relating to the value of Mr Du Bray's interests in Du Bray & Associates or any other assets. It is also not admitted as evidence of Mr Vella's opinions in that regard. It is admitted on the strictly limited basis that it was the document that Mr Du Bray claimed he sent to the trial judge on the eve of the trial of the substantive proceeding. The fact that Mr Vella's report was said to have been sent to the trial judge was relevant to Mr Du Bray's argument, in opposition to the creditor's petition, that the trial judge should have referred to it or taken it into account.
92 The first reason for rejecting the tender of Mr Vella's report as evidence of the asset valuations referred to in it is that it was served late, well outside the Court ordered timetable. No attempt was made to explain the late service. It may be true that the applicant or her legal advisers were aware of the existence of Mr Vella's report prior to its service, given that, at least according to Mr Du Bray's affidavit evidence, it was sent to the applicant in March 2015. It was also included within the voluminous exhibit to Mr Du Bray's affidavit. What the applicant and her advisers did not know, however, at least until the late service of Mr Vella's affidavit in December 2019, was that Mr Du Bray would seek to rely on Mr Vella's report in this proceeding as evidence of the valuation of some of his assets. That had never previously been foreshadowed.
93 It should also be noted in this context that the lengthy and detailed written submissions filed on behalf of Mr Du Bray made no mention whatsoever of Mr Vella's report, or the basis upon which it was to be tendered. Nor did the written submissions give any indication that at the hearing of the creditor's petition Mr Du Bray would seek to rely on Mr Vella's opinion evidence, or any expert evidence, concerning the value of his assets, either in support of the proposition that the Court should go behind the substantive judgment or otherwise.
94 Mr Vella's report is 45 pages long and very detailed. The applicant could not possibly have appropriately responded to it in time for the March 2020 hearing if it was to be relied on as valuation evidence. The late service of Mr Vella's affidavit annexing the report was, in all the circumstances, manifestly unfair and prejudicial to the applicant. As has already been noted, its late service went entirely unexplained.
95 The second reason for rejecting the tender of Mr Vella's report as valuation evidence in this proceeding is that, while it is accepted that one of the key issues for consideration by the Court is whether there are substantial reasons for questioning whether behind the judgment there was in fact a debt owing by Mr Du Bray to the applicant, it does not follow that this gave Mr Du Bray licence to essentially rerun his case before the trial judge; or perhaps more accurately in the circumstances of this case, run the case that he now says he would have liked to have run before the trial judge. It is, with respect, absurd to suggest that the Court, in considering whether to exercise the discretion to go behind the judgment, should entertain contested expert valuation evidence tendered for the purpose of demonstrating that the trial judge's findings were incorrect. That is particularly so given that Mr Du Bray made no attempt to put before the Court all of the evidence that was before the trial judge in respect of the valuation of assets.
96 The question whether Mr Vella's evidence was in fact before the trial judge is considered later. It should be noted, in this context however, that in considering whether to admit Mr Vella's report as evidence of his valuations, it is relevant to take into account that Mr Vella's report was not filed by Mr Du Bray in the proceedings before the trial judge at a time before he was debarred, or pursuant to any order of the Court. Important also is the fact that there is nothing to suggest that Mr Du Bray sought to rely on Mr Vella's report, or the trial judge's supposed failure to have regard to it, in his failed attempt to appeal the substantive judgment.
97 Ultimately, Mr Du Bray, through his counsel, appeared to accept that Mr Vella's report should only be accepted on a limited basis. That limited basis was that it was evidence that Mr Du Bray challenged or disagreed with the trial judge's findings concerning the valuation of certain assets and that the difference between the trial judge's findings and Mr Du Bray's arguments or contentions was very large. It was said that "the fact that there are large sums of money involved and that evidence of an experienced valuer was not referred to in the judgment, then your Honour would have more comfort that the exercise in going behind the judgment was not fruitless". That submission was and is somewhat difficult to grasp. To the extent that it meant that the report should be admitted as evidence of the value of the assets referred to in it, it is rejected. As has already been noted, however, the report will be admitted on the strictly limited basis that it is a document that is said to have been sent to the trial judge which sets out Mr Du Bray's apparently competing position in relation to the valuation of certain assets.
98 The limitation placed on the use to which Mr Vella's evidence may be put was and is also warranted on the basis that there was a danger that any other use would be unfairly prejudicial to the applicant for the reasons given: s 136 of the Evidence Act 1995 (Cth).
99 Finally, it is necessary to address Mr Chen's affidavit.
100 Mr Chen is apparently a chartered accountant. He has been Mr Du Bray's accountant since 2001. Despite that, there is no suggestion that Mr Du Bray sought to rely on any evidence from Mr Chen in the proceedings before the trial judge. Mr Chen's affidavit purported to contain his expert evidence concerning the valuation of the Du Bray Property Trust, or its assets, including some real property. It also included what appeared to be a critique of some of the findings made by the trial judge in relation to the valuation of those assets, though the references in the affidavit to the trial judge's judgment or reasons are so vague and obscure that it is difficult to be clear about that.
101 The applicant objected to Mr Chen's evidence in its entirety. That objection was and is upheld for the following reasons.
102 First, as noted earlier, Mr Chen's affidavit was not served until 24 January 2020, even later than the service of Mr Vella's affidavit. Again, no explanation whatsoever was ever given for the late service of this evidence. The late service of the affidavit was unfairly prejudicial to the applicant. She could not possibly have marshalled expert evidence in response to Mr Chen's evidence prior to the March 2020 hearing date of the creditor's petition.
103 Second, the relevance of Mr Chen's opinions concerning the valuation of certain assets is, in any event, unclear and obscure. As already noted, there is no suggestion that Mr Du Bray sought to rely on Mr Chen's expertise or evidence in the proceedings before the trial judge, or indeed on appeal. There is no evidence to suggest that Mr Chen's opinions aligned in any way with the expert evidence that Mr Du Bray did rely on in those proceedings. As noted earlier in the context of Mr Vella's evidence, the fact that the Court is required to consider whether there are substantial reasons for questioning whether behind the judgment there was in truth and reality a debt does not give Mr Du Bray the licence to effectively rerun the case that was before the trial judge, or run the case that he would have liked to have run before the trial judge, by adducing new evidence, particularly where there was no explanation for why that evidence was not relied on in the first place.
104 Third, Mr Chen's opinion evidence was, in any event fundamentally flawed in numerous respects. It suffices to mention only a few. First, early in his affidavit, Mr Chen stated that "[f]rom time to time [Mr Du Bray] advised me as to the approximate value of his assets. I have assumed this to be true". That assumption, the validity of which is, at best, questionable, effectively undermined or infected most, if not all, of Mr Chen's evidence. It meant that some of his valuations were simply based on what he had been told by Mr Du Bray. Mr Chen purported to express opinions about the value of properties. There was, however, no evidence in his affidavit to suggest that he had any relevant qualifications or experience to do so. In any event, he appeared to simply rely on valuation reports prepared by others. The provenance and reliability of those reports was, at best, unclear. The provenance and reliability of numerous other documents relied on by Mr Chen in expressing various opinions was equally unclear. It was unclear whether any of the documents relied on by Mr Chen were discovered, let alone referred to in the evidence that Mr Du Bray filed in the proceedings before the trial judge. Finally, Mr Chen's critique of some of the trial judge's findings were wholly unsatisfactory. They were, according to Mr Chen himself, based on nothing more than his assumptions.
105 Even putting aside the highly doubtful relevance and admissibility of much of Mr Chen's evidence, its exclusion was and is in any event warranted on the basis that its very low probative value was well outweighed by the danger that it would be unfairly prejudicial to the applicant, particularly given its late service, and that it would, in any event, cause or result in undue waste of time.