• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

File Number(s): 2023/00195722

JUDGMENT

1. On 12 May 2026 Muston J made consent orders in relation to the Court's approval of a referee to be appointed pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) to conduct an inquiry and prepare a report to the Court on the following questions:

“1. In respect of each of the Omnibus Accounts, is it possible to determine, on the balance of probabilities, the account balances as at 31 January 2025?

a. If the answer to (1) is ‘No’, why not?

b. If the answer to (1) is ‘Yes’, what were the account balances as at 31 January 2025?”

2. His Honour’s reasons for doing so are contained in AxiCorp Financial Services Pty Ltd v MYFX Markets Pty Ltd [2026] NSWSC 596, familiarity with which these reasons assume.

3. The Omnibus Accounts are a defined term meaning “the accounts numbered 430132 (AUD account), 431497 (JPY account) and 408990 (USD account) held with the plaintiff.”

4. The reference is to be governed by the terms of reference enshrined within Annexure B of Muston J’s orders. They are the orthodox rules to guide the referee by, for example, excluding the application of the rules of evidence and the format in which evidence is to be provided (in this case, unless otherwise directed, in the form of affidavits).

5. Evidently, the parties are unable to agree as to the identity of the referee. In accordance with his Honour’s orders, each party has provided the name and qualifications of their respective referees, together with short submissions. The Plaintiff invites the Court to appoint Mr Neil Gray of Deloitte as the referee, while the Defendants would prefer Mr Paul Croft of Matson, Driscoll & Damico to be appointed.

6. Choosing between these experts, both of whom are suitably qualified and have very considerable experience, is beguilingly difficult.

7. Mr Gray, in his letter to the Plaintiff’s solicitors, identifies the nature of the dispute between the parties, being that the Plaintiff, Axicorp Financial Services Pty Limited, “operates a business of offering margin foreign exchange and [contracts for difference] over underlying instruments, principally through a trading platform known as the ‘MetaTrader 4’ platform.” In around 2014, the Plaintiff and First Defendant entered into an agreement whereby the Plaintiff agreed to make MetaTrader 4 available to the First Defendant. That agreement included a profit-sharing arrangement (the Omnibus Accounts referred to above).

8. The Plaintiff alleges that there was an error in the calculation of the balances of the Omnibus Accounts, which caused them to (incorrectly) indicate that the Defendant had excess capital of about $9m. Because of this error, money was withdrawn from the Omnibus Accounts which should not have been withdrawn. The Plaintiff alleges that the Omnibus Accounts were overdrawn in the sum of $4,699,804 and seeks restitution for the account deficit.

9. The Plaintiff, at par 4 of its written submissions, records the following:

“The Gray Response records that Mr Gray: (a) is the lead partner of Deloitte Australia’s forensic and financial crime practice with 20 years of specialist experience in, among other things, the quantification of loss and damage, investigations into accounting irregularities, complex financial analysis and the interrogation of large data sets; (b) has significant experience in the financial services industry including the trading of contracts for difference; (c) has available to him ample resources to undertake the reference efficiently and expediently; and (d) has no conflicts. Although Mr Gray has not previously acted as a referee, he has held similar roles as an independent expert, including for expert determinations.”

(Footnotes omitted.)

10. Mr Croft is the Managing Director for disputes and litigation at the Sydney office of Matson, Driscoll & Damico. He is an accredited chartered accountant who specialises in forensic accounting and has over 15 years of forensic accounting and investigative experience. He has appeared as an expert witness in many courts and Royal Commissions.

11. In addition to his curriculum vitae is an email from him to his instructing solicitors which notes that, in 2022, he led the forensic analysis in an insolvent trading matter which required him to develop a strong working knowledge of the MetaTrader 4 platform, how multi-currency trades were completed and reported, including profit/loss on sale. In that same email, Mr Croft indicates that he has undertaken 12 expert determinations.

12. The Defendants submit that the salient point of difference between the experts is Mr Croft's “hands on experience with MetaTrader 4”. It should also be noted that Mr Croft's hourly rates are substantially lower than Mr Gray’s, which is, the Defendants submit, “an important factor that also weighs the balance in favour of Mr Croft”.

13. Although I have no doubt that either of these experts would acquit themselves admirably as a referee, I am persuaded that Mr Croft's experience with the precise trading platform in this matter affords substantial benefits to both Mr Croft and the parties. Mr Gray, for all his many qualities, does not possess that experience.

14. Whilst there may be little difference between different trading platforms, Mr Croft's specific experience with the MetaTrader 4 platform means he is likely to require less time to familiarise himself with the platform’s workings. That saved time would also save the parties costs as well as satisfy one of the aims of expert determination, namely, for the expert to lend his or her specific body of knowledge to the exercise at hand.

15. I also cannot ignore the difference in the proposed experts’ fee structures. Section 56 of the Civil Procedure Act 2005 (NSW) requires the Court to give effect to the overriding purpose of case management, being the just, quick and cheap resolution of the real issues in the proceedings. The disparity between the experts’ respective charge-out rates is not a matter that could or should be ignored by the Court.

16. On balance, therefore, I consider that Mr Croft is the more suitable of these two candidates to be appointed.

Orders

17. Accordingly, I make the following orders:

18. Pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW), Mr Paul Croft be appointed to conduct an inquiry and prepare a report to the Court on the following questions:

(a) In respect of each of the Omnibus Accounts, is it possible to determine, on the balance of probabilities, the account balances as at 31 January 2025?

(i) If the answer to (1) is “No”, why not? (ii) If the answer to (1) is “Yes”, what were the account balances as at 31 January 2025?

2. No order as to costs.

**********