UTSG Pty Ltd v Sydney Metro

Land and Environment Court (NSW)|2019-12-18|Before: Pepper J

es [2001] NSWCA 305; (2001) 52 NSWLR 705 May v Christodoulou [2011] NSWCA 75; (2011) 80 NSWLR 462 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Naomi Marble and Granite Pty Limited v FAI General Insurance Company Limited (No 2) [1999] 1 QdR 518 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM [2018] NSWCA 168 Roads and Maritime Services v United Petroleum [2019] NSWCA 41; (2019) 99 NSWLR 279 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 State of New South Wales v Hunt [2014] NSWCA 47; (2014) NSWLR 226 UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 UTSG Pty Ltd v Sydney Metro (No 2) [2018] NSWLEC 199 UTSG Pty Ltd v Sydney Metro (No 4) [2019] NSWLEC 51 UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 Yu v Cao [2015] NSWCA 276; (2015) 91 NSWLR 190 Texts Cited: Sir Walter Scott, Marmion: A Tale of Flodden Field (Ballantyne and Co, Edinburgh, 1808) Category: Principal judgment Parties: UTSG Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: Ms S Singh and Dr M Baig (Applicant, director-represented) Mr R Lancaster SC with Mr N Eastman (Respondent)

Solicitors: N/A (Applicant) Ashurst (Respondent) File Number(s): 2017/249637

TABLE OF CONTENTS Topic Paragraph No An Unrepresented Corporate Applicant Seeks Compensation for a Compulsory Acquisition [1] Transport for New South Wales Acquires a Leasehold Interest [15] Legislative Basis for Compensation Under the Just Terms Act [60] The Changing Nature of UTSG's Compensation Claim [61] UTSG's Repeated Non-Compliance With Court Orders [68] A Notice to Produce is Served on UTSG [83] The Real Issues for Determination in the Proceedings [147] The Evidence of the Parties [148] Ms Singh's Evidence [155] The Sham Business Sale Agreement to 5G [178] LPAA, TaxSavvy and Associated Persons Are Not Genuine Entities [189] Mr Peter Scott Does Not Exist [212] The Altered "17 Boxes of Documents" Email [217] Inconsistencies in UTSG's Financial Records [223] Ms Singh is Not a Witness of Truth [227] The Expert Valuation and Forensic Accounting Evidence Does Not Support UTSG's Claim for Compensation [231] The Forensic Accounting Evidence [231] The Business Valuation Evidence [260] The Relocation Evidence Relied Upon by UTSG [287] With One Exception UTSG's Claim for Compensation is Rejected [297] Claim for Legal and Valuation Fees [297] Claim for "Wasted Relocation Costs" [301] There Was No Relocation of UTSG to 280 Pitt St [305] UTSG Did Not Pay for the Fitout of 40 Park St [318] The Wasted Relocation Costs Were Not in Connection With UTSG [328] The Wasted Relocation Costs Were Not a Direct and Natural Consequence of the Acquisition.. [329] There is No Evidence as to the Quantum of the Wasted Relocation Costs [335] The Claim for "Future Relocation Costs" of the Business Must Fail [347] The Claim for "Relocation Lost Profit" for "Past Loss" is Not Established [350] There is No Evidence Demonstrating Past Lost Profits [352] The Losses Were Not "In Connection With" UTSG Under s 59(1)(c) [361] The Claim for "Relocation Lost Profit" for "Future Loss" Cannot be Maintained [363] There is No Basis for the Claim for the Costs of Dr Baig's Supreme Court Proceedings [365] UTSG Sought to Further Amend its Claim for Compensation in Closing Submissions [367] UTSG Was Not Denied Procedural Fairness in the Conduct of the Proceedings [386] Rental Arrears Owing by UTSG to TNSW for its Occupation of 40 Park St [391] Conclusions on UTSG's Claim for Compensation [396] Costs [400] Applicable Legal Principles Concerning Costs in Compulsory Acquisition Cases [403] Liability of Ms Singh as a Non-Party for Sydney Metro's Costs [412] Orders [426]

An Unrepresented Corporate Applicant Seeks Compensation for a Compulsory Acquisition

One of the most quoted excerpts (often wrongly attributed to Shakespeare) from the historical romantic poem of lust and betrayal, Marmion: A Tale of Flodden Field, penned by Sir Walter Scott in 1806 (Ballantyne and Co, Edinburgh, 1808) is the following: Oh, what a tangled web we weave, When first we practice to deceive!
There can be no more apt summation of this Class 3 compulsory acquisition litigation commenced and conducted by the applicant, UTSG Pty Ltd ("UTSG").
In particular, there can be no more pithy description of the evidence given by one of the directors of UTSG during the proceedings, namely, Ms Simran Roselyne Singh (sometimes known as Ms Roselyn Singh).
Represented at the time of filing and during the initial stages of the proceeding, on 25 October 2018 UTSG became self-represented and the proceedings were conducted by Ms Singh and Dr Mirza Baig as directors of UTSG (see r 7.1(2)(a) of the Uniform Civil Procedure Rules 2005 ("UCPR")).
Unlike other superior courts of record (for example, the Federal Court of Australia and the Supreme Court of New South Wales), this Court does not have any ability to control unrepresented corporate litigants from commencing and/or conducting proceedings. This proved to be particularly problematic in the present case, as the chronology of events in this judgment lays bare. The result has been a proceeding replete with delay and wasted expenditure, almost all of it caused by UTSG and some of which, it may be anticipated, may never be recovered by the respondent, Transport for NSW ("TNSW"), now Sydney Metro (the terms are used as interchangeable throughout the judgment, as they are in the evidence), the successful party in this litigation.
Sydney Metro is carrying out the Sydney Metro - City and South West Project ("the project"). The acquisition occurred for the purpose of that project under the Transport Administration Act 1988.
On 4 October 2016, UTSG was served with a Proposed Acquisition Notice in respect of its leasehold interest in the premises ("PAN"). On 13 January 2017 the acquisition was effected by a notice published in the NSW Government Gazette.
On 19 December 2016 UTSG submitted a claim for compensation to the NSW Valuer-General ("VG") seeking compensation in the amount of $19,907,948 (for disturbance under s 55(d) of the Land Acquisition (Just Terms Compensation) Act 1991 ("Just Terms Act")). The statutory declaration that accompanied that claim was signed by "Simrane Roselyn Singh".
A revised claim was submitted to the VG on 28 April 2017 seeking compensation in the amount of $10,984,701. The entirety of the claim was for compensation for loss attributable to disturbance.
On 12 May 2017 the VG determined the compensation to which the applicant was entitled in the amount of $2,136,834 for loss attributable to disturbance under s 55(d) of the Just Terms Act.
Seven days later, on 19 May 2017, Sydney Metro sent UTSG a notice of its entitlement to compensation in the amount determined by the VG in accordance with s 42 of the Just Terms Act.
UTSG commenced proceedings pursuant to s 66 of the Just Terms Act on 16 August 2017, appealing against the amount of compensation offered by Sydney Metro in accordance with the VG's determination arising from the compulsory acquisition of UTSG's leasehold interest in part of the premises known as 40 Park St, Sydney ("40 Park St") on 13 January 2017.
For the reasons that follow, it is the Court's determination that UTSG is entitled to nil compensation because as at the date of acquisition: 1. UTSG had been restructured and whatever was left of the business operating out of 40 Park St had been transferred to Dr Baig (prior to him becoming a director of UTSG during the course of the hearing); 2. there was no cogent and reliable evidence of the cost of the claimed relocation of the medical business; 3. there was no evidence of any past business loss in light of the Court's earlier rejection of the report of Mr Gambhir Watts (UTSG Pty Ltd v Sydney Metro (No 4) [2019] NSWLEC 51) and the acceptance by all experts, including Mr David Mullins (engaged by UTSG) (T871:35), that there was no value in the business; 4. there was no claim for business extinguishment, such claim having been expressly disavowed by Ms Singh (T182:10-182:48); and 5. while Sydney Metro accepted that UTSG was entitled to compensation in respect of its legal ($85,596.76) and valuation ($51,920) fees, this was offset against the unpaid rental owing by UTSG to Sydney Metro in the amount of $183,123.64. This left a deficit of $45,606.88 in rental arrears, any claim to which was abandoned by Sydney Metro on 17 December 2019 in these proceedings (T1310:50-1311:01).
I acknowledge the assistance afforded to me by Parker AC during the hearing of this matter. Having said this, in this judgment all analyses and all findings, both legal and factual, are my own.

Transport for New South Wales Acquires a Leasehold Interest

Because of the way in which UTSG put its claim for compensation and the manner by which it conducted the hearing, it is necessary to set out in detail the background to these Class 3 proceedings.
The 40 Park St premises in which the leasehold interest was held comprised a three storey building prior to its acquisition by TNSW. As at February 2013 and at all times until 28 October 2016, the property was owned by Gwynvill Properties Pty Limited ("Gwynvill") (Gwynvill has been paid compensation for the acquisition of its freehold interest).
UTSG was registered as a company on 8 April 2011. At all material times Ms Singh was and is a director of UTSG and the owner of that company.
UTSG Consortium Pty Ltd ("UTSG Consortium") was registered as a company on 21 June 2011. Ms Singh was the sole director and secretary of UTSG Consortium and the majority owner of that company.
UTSG Consortium entered into a lease of part of 40 Park St, being the ground floor and first floor of the building, with Gwynvill on 1 March 2013. The lease had a term of five years commencing on 1 March 2013 and terminating on 28 February 2018, with an option to renew for another five years ("the lease"). As at the date of acquisition, UTSG had been the lessee of the premises for almost four years and it had a remaining term of approximately 14 months (with an option to renew). The lease did not extend to the second floor of the building at 40 Park St.
UTSG Consortium contracted with Numed Healthcare Pty Ltd ("Numed") trading as Medbuild in March 2013 to carry out a fitout of 40 Park St. Medbuild undertook the fitout of the premises during 2013 on behalf of UTSG Consortium.
Medbuild served a statutory demand on UTSG Consortium on 15 October 2013 claiming that UTSG Consortium was indebted to Medbuild in the sum of $233,062 for the fitout of 40 Park St. UTSG Consortium did not respond to the statutory demand.
Accordingly, on 18 December 2013 Medbuild applied to the Supreme Court of New South Wales ("the Supreme Court") to wind up UTSG Consortium. On 1 January 2014 UTSG Consortium transferred the lease to UTSG with the consent of Gwynvill.
On 3 February 2014 the Supreme Court ordered that UTSG Consortium be wound up and liquidators were appointed. UTSG Consortium was deregistered as a company on 2 August 2015.
UTSG says that a medical centre trading under the name "V Health Plus" operated from 40 Park St. However, the objective evidence does not reveal a clear picture of the use of the premises from 1 January 2014, or as at the date of acquisition. It appears that from time to time between January 2014 to January 2017, carried out at 40 Park St were: 1. the medical practices of various doctors (who appear to be general practitioners), including (from time to time) Dr Baig, Dr Thomas Springer, Dr Michael Cavanagh, Dr Vijayendra Desai, Dr R A Peach and Dr James Vandeleur; and 2. additionally, the part time dental practice of Dr Andy Hsiau, located on the first floor of the premises.
The medical and dental practices operated through various companies other than UTSG. There are some documentary records that address the terms on which those practices used the premises at 40 Park St, but the financial aspects of UTSG's arrangements with the service providers are opaque and unreliable.
According to its amended points of claim dated 22 March 2019 ("the amended points of claim"), UTSG contends that it entered into a contract for sale of the business on 1 November 2015 with "5G General Trading LLC" ("5G") of Dubai for US$14,570,000, with a settlement date of 30 April 2016 ("the Business Sale Agreement"). The settlement date was later mutually extended to October 2016.
UTSG alleges that by reason of the receipt of the PAN on 9 October 2016, the Business Sale Agreement with 5G did not proceed. Although the existence and veracity of the Business Sale Agreement was a matter of controversy, the Business Sale Agreement does not appear to form any specific part of the amount claimed by way of compensation by UTSG.
On 5 November 2015 Gwynvill served on UTSG a notice alleging various breaches of the lease relating to the use of the ground floor of the premises as a coffee shop. Consequently, on 17 November 2015 Gwynvill took possession. Possession was returned by Gwynvill to UTSG the following day. As a result of the dispute concerning the lockout, UTSG commenced legal proceedings against Gwynvill on 8 April 2016 in the Supreme Court seeking damages. The matter was set down for a five day hearing commencing on 12 June 2018. On 16 May 2018 the hearing was vacated upon the application of UTSG and the Court ordered costs against UTSG in the amount of $88,421, payable within 28 days after which the proceedings would be stayed.
On 31 March 2016 TNSW sent a letter to UTSG informing it that TNSW intended to acquire the premises for the purposes of the Sydney Metro - City and South West Project, and after negotiation, sent the PAN to UTSG.
On 28 October 2016 TNSW acquired the freehold interest of Gwynvill in 40 Park St by compulsory acquisition.
Notwithstanding the purported sale to 5G, on 16 November 2016 Dr Baig and Ms Singh executed a term sheet with Tasly Healthpac CBD Healthcare Corporation Pty Limited ("Tasly") for the sale of the V Health Plus Medical Centre Business at 40 Park St to Tasly. A contract of sale was prepared dated December 2016, but it was not executed by the parties. According to UTSG the sale did not proceed because of the acquisition the subject of these proceedings.
Mr Brett Goodyer of SV Partners Forensics (NSW) Pty Ltd issued a Preliminary Economic Loss Report on 16 December 2016 on behalf of UTSG, assessing the total expected losses and damages suffered by UTSG as a result of the proposed acquisition to be $19,872,948.
This report accompanied a claim lodged by UTSG dated 19 December 2016 for compensation in accordance with s 39 of the Just Terms Act in the amount of $19,907,948.
On 5 January 2017 Dr Baig commenced proceedings in the Supreme Court against UTSG and Ms Singh seeking, among other things ("the first Supreme Court proceedings"): 1. a declaration that various transfers of shares in respect of UTSG were void or did not take effect and that the share register of UTSG be corrected; and 2. an order that any compensation paid by, or on behalf of, TNSW in relation to the compulsory acquisition of the premises be held in the trust account of Mitry Lawyers Pty Ltd ("Mitry Lawyers") to be dispersed in accordance with any direction of the Court. Furthermore, that the reasonable cost of relocating the business known as "V Health Plus", as determined by Mr Watts, be paid by direction in writing to Mitry Lawyers with the balance to remain in Mitry Lawyers' trust account until further order.
On 11 January 2017 Dr Baig executed two agreements with Tasly: 1. a "Provision of Services to incorporated Medical Practitioner", in the capacity of Dr Baig of UTSG Consortium Pty Ltd ("the practitioner contract") for Dr Baig to provide medical services at Tasly's leased premises at 501 George St, among other obligations. This UTSG Consortium Pty Ltd was a different entity to the UTSG Consortium which originally held the lease at 40 Park St and was deregistered; and 2. a "Performance Guarantee: Incorporated Medical Practitioner" in the capacity of Dr Baig of 62 MacMillan Avenue, Mawson Lakes, SA, 5096, for the performance of the practitioner contract commencing 16 January 2017.
On 12 January 2017 Dr Baig and Ms Singh signed a Deed of Agreement in which the parties agreed, among other things, to: 1. discontinue the first Supreme Court proceedings; 2. each receive an equal share of the compensation to be received from TNSW after deduction of all verified expenses paid by them and repaid to them; and 3. pay the funds received into the trust account of Mitry Lawyers who would transfer the funds as instructed by both parties.
The first Supreme Court proceedings were discontinued by Dr Baig on 13 January 2017, the same day that TNSW compulsorily acquired UTSG's leasehold interest in 40 Park St.
Also on that day, TNSW wrote to UTSG relevantly advising it that UTSG was entitled to remain in occupation at 40 Park St (provided that certain statutory criteria were met), but that TNSW required vacant possession of the premises no later than 12 April 2017, in order to meet the construction program for the project. UTSG was required to pay $31,402 per month (plus GST of $3,140) by way of rent to TNSW during UTSG's continued occupation of the premises after the date of acquisition (this sum equated to the rent that would have otherwise been payable by UTSG to Gwynvill under the lease).
On 20 January 2017 Dr Baig and UTSG Consortium entered into a Practice Sale and Purchase Agreement with Tasly ("the Tasly Agreement"). Under the Tasly Agreement: 1. UTSG Consortium was required to do everything it could to ensure that the patients seen by Dr Baig at 40 Park St were transferred to Tasly; and 2. Dr Baig would be paid $1 million, including an initial $250,000 payment.
On 24 January 2017 Tasly informed Dr Baig that a deposit of $250,000 had been paid into his bank account in accordance with the Tasly Agreement.
Dr Baig did not attend Tasly's offices on 30 January 2017 to commence work in accordance with the Tasly Agreement.
Therefore, on 31 January 2017 Andrew & Holm Lawyers, acting on behalf of Tasly, issued a letter of demand to Dr Baig. In the letter Dr Baig was given the option of either immediately attending the Tasly premises in accordance with the Tasly Agreement, or returning the deposit of $250,000 to Tasly in full by 7 February 2017, in lieu of which Tasly would agree to terminate the Tasly Agreement on a without prejudice basis.
On 10 February 2017 TNSW made an offer for advance payment to UTSG in the amount of $810,000, being 90% of the $900,000 offered by TNSW to UTSG on 19 April 2016, subject to the following conditions: 1. that a deed be entered into between TNSW and all of the directors of UTSG (not limited to Dr Baig and Ms Singh) with respect to the advance payment in a form acceptable to TNSW; and 2. that UTSG accept that the advance payment satisfied the requirements of s 34 of the Just Terms Act.
Tasly commenced legal proceedings in the District Court against Dr Baig on 14 February 2017 to recover the deposit paid to him pursuant to the Tasly Agreement.
On 4 and 13 April 2017, TNSW made offers for advance payment to UTSG in the amount of $810,000, for the purposes of assisting UTSG to relocate to new premises. It subsequently agreed to reduce the rent payable per month after 1 April 2017 to $23,028 (inclusive of GST) because UTSG would not be occupying the first floor of the premises after 1 April 2017.
On 12 April 2017 Mr Goodyer issued a revised report amending the total expected losses suffered by UTSG as a result of the acquisition ("the Goodyer report"). On the basis of the Goodyer report, UTSG revised its claim to $10,829,988. The Goodyear report was provided by UTSG to the VG.
On 12 May 2017 the VG made a determination of compensation under s 47 of the Just Terms Act in the amount of $2,136,834 for the acquisition of UTSG's interest in 40 Park St (which comprised disturbance under s 55(d) of the Just Terms Act).
On 19 May 2017 TNSW provided UTSG with a compensation notice offering compensation as determined by the VG, less outstanding rent as at the anticipated vacant possession date of 12 June 2017, in the sum of $2,012,288.
TNSW paid the amount of $2,012,288 into a trust account established under s 51(3) of the Just Terms Act on 30 May 2017.
In the period between February and June 2017, Dr Baig commenced providing medical services from the ground floor of premises located at 280-282 Pitt St, Sydney ("280 Pitt St"). As at March 2019 Dr Baig was continuing to provide medical services from these premises.
On 16 June 2017 Dr Baig commenced a second set of proceedings in the Supreme Court against UTSG, Ms Singh, other companies associated with Ms Singh, and TNSW ("the second Supreme Court proceedings"). The proceedings sought orders for the making of adjustments to the share register of UTSG relating to the control of UTSG between Dr Baig, Ms Singh and Mr Brendon Hollins (Ms Singh's son), together with a freezing order relating to the compensation payable under the Just Terms Act by TNSW to UTSG.
On 26 June 2017 TNSW provided an undertaking to the Supreme Court to keep the unpaid compensation in the trust account until the resolution of the second Supreme Court proceedings between Dr Baig and Ms Singh. The undertaking was to "hold the compensation amount already paid by Transport for NSW into the existing trust account established under section 51 of the [Just Terms Act] subject to any orders of the Court being made in respect of the dispersal of the compulsory acquisition compensation from the trust account" and was expressed to expire "at the conclusion of the substantive hearing in the proceedings, or until further order of this Court".
UTSG continued to occupy the premises between 13 January to 31 July 2017, when it provided vacant possession. UTSG had not paid Sydney Metro rent for this period.
On 7 August 2017 Brereton J made orders in relation to the manner in which UTSG, Ms Singh and Dr Baig were to give instructions to Stacks Law Firm ("Stacks"), the lawyers acting for UTSG in respect of its claim for compensation in this Court.
On 21 December 2017 the Supreme Court made an order that "the undertaking given by the Third Defendant [TNSW] on 26 June 2017 is varied to the extent that the Third Defendant is permitted to release an amount of $916,472.58 to be paid to the Mills Oakley Trust Account to be paid to creditors agreed between the plaintiff and first and second defendants".
Dr Baig, Ms Singh, UTSG, and other related parties entered into a Deed of Settlement and Release dated 17 January 2018 in relation to the second Supreme Court proceedings, whereby the compensation amount was to be determined by this Court in this Class 3 claim. On 2 February 2018 TNSW paid an amount of $916,472 to UTSG by deposit into the trust account of Mills Oakley (a firm of solicitors).
On 16 April 2018 Dr Baig informed the Supreme Court that the second Supreme Court proceedings had settled and leave was granted to file a notice of discontinuance against TNSW. Part of that settlement, to which UTSG was a party, provided that the medical practice (defined as the practice at 280 Pitt St), including associated patient records, be transferred to Dr Baig.
On 26 April 2018 Dr Baig emailed a notice of discontinuance against TNSW to the Supreme Court in respect of the second Supreme Court proceedings.
On 7 May 2018 TNSW paid the residual portion of the compensation amount determined by the VG held in its trust account, namely, $1,028,599, in accordance with a direction to pay issued by UTSG as follows: $998,699 into Stacks's trust account; $10,566 into Hegarty Legal Pty Ltd's office account; and $19,363 into Mitry Lawyers's office account.

Legislative Basis for Compensation Under the Just Terms Act

The provisions of the Just Terms Act relevant to the determination of the issues in these proceedings are ss 54 to 56 and 59: 54 Entitlement to just compensation (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land. (2) If the compensation that is payable under this Part to a person from whom native title rights and interests in relation to land have been acquired does not amount to compensation on just terms within the meaning of the Commonwealth Native Title Act, the person concerned is entitled to such additional compensation as is necessary to ensure that the compensation is paid on that basis. 55 Relevant matters to be considered in determining amount of compensation In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division): (a) the market value of the land on the date of its acquisition, (b) any special value of the land to the person on the date of its acquisition, (c) any loss attributable to severance, (d) any loss attributable to disturbance, (e) the disadvantage resulting from relocation, (f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired. 56 Market value (1) In this Act: market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid): (a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and (b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and (c) any increase in the value of the land caused by its use in a manner or for a purpose contrary to law. (2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition. (3) If: (a) the land is used for a particular purpose and there is no general market for land used for that purpose, and (b) the owner genuinely proposes to continue after the acquisition to use other land for that purpose, the market value of the land is taken, for the purpose of paying compensation, to be the reasonable cost to the owner of equivalent reinstatement in some other location. That cost is to be reduced by any costs for which compensation is payable for loss attributable to disturbance and by any likely improvement in the owner's financial position because of the relocation. 59 Loss attributable to disturbance (1) In this Act: loss attributable to disturbance of land means any of the following: (a) legal costs reasonably incurred by the persons entitled to compensation in connection with the compulsory acquisition of the land, (b) valuation fees of a qualified valuer reasonably incurred by those persons in connection with the compulsory acquisition of the land (but not fees calculated by reference to the value, as assessed by the valuer, of the land), (c) financial costs reasonably incurred in connection with the relocation of those persons (including legal costs but not including stamp duty or mortgage costs), (d) stamp duty costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the purchase of land for relocation (but not exceeding the amount that would be incurred for the purchase of land of equivalent value to the land compulsorily acquired), (e) financial costs reasonably incurred (or that might reasonably be incurred) by those persons in connection with the discharge of a mortgage and the execution of a new mortgage resulting from the relocation (but not exceeding the amount that would be incurred if the new mortgage secured the repayment of the balance owing in respect of the discharged mortgage), (f) any other financial costs reasonably incurred (or that might reasonably be incurred), relating to the actual use of the land, as a direct and natural consequence of the acquisition. (2) Subject to the regulations, a reference in this section to a qualified valuer is a reference to a person who: (a) has membership of the Australian Valuers Institute (other than associate or student membership), or (b) has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or (c) has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or (d) is of a class prescribed by the regulations.

The Changing Nature of UTSG's Compensation Claim

As at 16 August 2017, when UTSG was legally represented and the proceedings were commenced, the company sought compensation in the amount of $10,967,505.
However, by the time UTSG filed its final version of its amended points of claim (there were various iterations prior to this point) (T8:32-9:09) on 25 March 2019 (by which time it was unrepresented), the compensation claimed had increased significantly: 125. The Applicant claims s 55(a) market value and in the alternative for s 55(d) disturbance in accordance with the Just Terms Act as follows, Section 56 (1) and if s 56(3)(a)(b) Section 56(1) and if s 56(3)(a)(b) is for market value of the Land, the land is used for particular purpose and there is no general market for land used for that purpose and, the owner genuinely proposes to continue after the acquisition to use other land for that purpose. $(an amount to be confirmed - relied up on a Hypothetical Relocation Cost served on 30 November 2018) Section 59(1)(a) and (b) Section 59(1)(a) Legal fees $(an amount to be confirmed) Section 59(1)(b) Valuation fees (as at 1 February 2019) $178,640.00 Section 59(1)(c)/(f) Relocation costs (i) Wasted relocation costs $2,120,893.00 (ii) Future relocation costs for the Business $(an amount to be confirmed) (a) Relocation costs of the Fit-out of Premise $1,903,939.00 (b) Retained plant and equipment fire sale value $53,561.00 Section 59(1)(c)/(f) Relocation Lost Profits (i) Past Loss $9,110,410.00 (includes DM's wasted relocation costs of $2,120,893.00) (ii) future loss assuming at least an 18 month loss $5,971,823.00 In the alternative, section 59(1)(c) Extinguishment Relocation Costs and section 59(1)(f) Extinguishment Lost Profits Extinguishment lost profits $9,110,410.00 (includes DM's wasted relocation costs of $2,120,893.00), plus Past lost $39,647,056.00 Loss in perpetuity Section 59(1)(f) Supreme Court Proceedings - legal costs associated with settled claim by Dr Mirza Baig that was delayed by TNSW, for completion of resolution and SC Matter. $(an amount to be confirmed)

Accordingly, as set out in its pleadings, UTSG's claim for compensation was for (at least - some heads of compensation remain unquantified): 1. $19,160, 626 for relocation; or 2. $50,878,359 for extinguishment; 3. $178,640 for valuation fees; 4. unspecified legal fees; and 5. the costs of the Supreme Court proceedings brought by Dr Baig against UTSG, also unquantified.
Although the amended points of claim referred to a claim for market value (at paragraphs 50, 51(b) and 125), there was no reference to, or quantification of, a claim for market value in the summary table quoted above. Further, no evidence was by filed by UTSG in support of any market value claim. In correspondence from UTSG to Sydney Metro, UTSG confirmed that no such claim was pursued.
The claim for compensation for the extinguishment of its business upon acquisition was abandoned by UTSG on day three of the hearing.
Subsequently, during its closing submissions, the amount of compensation sought by UTSG increased to $45,710,000. The more than doubling of its claim for compensation was unexpected, was difficult to understand, and was neither the subject of new evidence nor an application by UTSG to amend its pleadings. It is discussed separately in detail later this judgment reflecting the manner in which it was raised, namely, as an almost entirely new claim (see at [367]-[380]).
UTSG's constantly evolving position with respect to the amount of compensation claimed and its calculation was a source of considerable confusion both to the Court and to Sydney Metro, during the course of the proceedings. The inability of UTSG to properly, or at all, identify the basis of the quantum of its claim contributed significantly to the duration of the hearing and to the quantity of evidence required to be adduced, resulting in a concomitant increase in the parties' costs.

UTSG's Repeated Non-Compliance With Court Orders

Given Sydney Metro's application that UTSG, and Ms Singh personally, pay the costs of the proceedings, it is convenient at this juncture to set out the abjectly dismal procedural history of this litigation; a chronology overwhelmingly characterised by the constant and chronic contravention by UTSG of Court orders. Its non-compliance resulted in the initial hearing of the matter having to be vacated (UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128).
On 27 October 2017 the Registrar provisionally reserved 15, 16 and 21 to 25 May 2018 to hear the claim.
On 15 December 2017 the Court made orders requiring UTSG to: 1. provide Sydney Metro with any accounting records of UTSG that were provided to UTSG's forensic accountant no later than three business days after they are provided to that accountant; 2. serve its points of claim by 19 February 2018; 3. serve a schedule of, and all lay evidence in relation to, its disturbance losses under s 59(1) of the Just Terms Act by 19 February 2018; and 4. serve any expert evidence in relation to disturbance by 19 February 2018.
The 15 December 2017 orders listed the matter for further directions on 2 March 2018 and directed the parties to approach the Registry to fix a date for a conciliation conference by no later than 25 May 2018 and to list the matter for hearing with an estimate of seven days, not before 20 August 2018.
On 15 February 2018 the matter was listed for a conciliation conference on 16 May 2018 and for a final hearing from 28 August to 5 September 2018.
UTSG failed to serve its points of claim, lay evidence, schedule of disturbance losses, and expert evidence by 19 February 2018 as ordered.
On 2 March 2018 the Court made orders setting down a timetable for the proceedings leading up to the conciliation conference on 16 May 2018, and, if conciliation was not successful, for a directions hearing to take place on 25 May 2018. The orders also extended the time for the filing of UTSG's points of claim, schedule and lay evidence in relation to disturbance losses, to 13 April 2018 and likewise extended the time for the filing of UTSG's expert evidence to 29 March 2018.
On 5 March 2018 Mr Digby Dunn, the then solicitor on the record for UTSG, sent an email to Ashurst (the solicitors for Sydney Metro) attaching some financial records of UTSG.
On 29 March 2018, pursuant to the 2 March 2018 orders, UTSG served an expert report prepared by Mr David Mullins of Axiom Forensics dated 29 March 2018 ("the Mullins report"). No other expert evidence was served.
UTSG failed to serve its schedule of disturbance losses, its lay evidence, or its points of claim by 13 April 2018, contrary to the 2 March 2018 orders.
On 24 April 2018, at Sydney Metro's request, and because UTSG had not complied with the 2 March 2018 orders, the matter was relisted for further directions.
On 27 April 2018 the Court made orders that amended the timetable set out in the 2 March 2018 orders. Among other things, those orders required UTSG to file its points of claim, disturbance schedule, and lay evidence by 10 May 2018.
On 7 May 2018 UTSG served an affidavit of Ms Singh sworn 7 May 2018.
On 10 May 2018 UTSG filed and served a document described as its "draft points of claim" ("draft POC"), contrary to the 27 April 2018 orders. The draft POC were served on Ashurst by email from Mr Dunn stating that, "the Points of Claim are still in draft form, as they are yet to be settled by Senior Counsel".
Notwithstanding that the 2 March 2018 orders required UTSG to file any expert evidence in relation to disturbance by 29 March 2018, paragraph 114 of the draft POC indicated that UTSG would seek to rely on additional expert evidence not yet filed in the proceedings. This material was to include the evidence of Mr Owen Allsopp (a valuation expert) in relation to relocation expenses and an unnamed planning expert in relation to the development application costs associated with the relocation by UTSG to new premises.

A Notice to Produce is Served on UTSG

On 17 May 2018 (the day after the conciliation conference was terminated), Sydney Metro filed and served a notice to produce on UTSG ("NTP").
The NTP sought 44 categories of documents, all of which were directed to ascertaining the financial position of UTSG as at the date of the acquisition, and therefore, the value of the leasehold interest the subject of the acquisition. For example, production was required of: Accounting Records 1 Any Accounting Records of UTSG between the period of 1 January 2014 and 30 April 2018. 2 Any bank statement from any bank accounts held by UTSG for the period 1 October 2013 to 30 April 2018. 3 Asset register details which show the calculation of all depreciation expenses claimed by UTSG for each of the three financial years ended 30 June 2017. 4 Any document identifying the individual health practitioners and the fees payable in relation to each of those practitioners in the categories of "V Health Medical Plus", "Dr Preventative Health Clinics", "Dr IHCS Lifestyle Clinics" and "Dr ICM Health & Wellness Clinics" as contained in the spreadsheet "BPS Work Done by Doctor Report" in Appendix 5 to the report of David Mullins dated 29 March 2018. 5 All documents relating to communications between UTSG (or its representatives) and Taxation Guru Pty Ltd (also known from time to time as Gambhir Watts in relation to the accounts of UTSG during the period 1 October 2013 to 30 April 2018. 6 All documents relating to communications between UTSG (or its representatives) and MS Tax & Accounting Services in relation to the accounts of UTSG during the period 1 October 2013 to 30 April 2018. Tax Records 7 Any Business Activity Statement submitted by or on behalf of UTSG to the Australian Taxation Office in respect of the period between 1 October 2013 and 30 April 2018. 8 Any Tax Return filed with the Australian Taxation Office submitted by or on behalf of UTSG in relation to the period 1 October 2013 to 30 April 2018. 9 All PAYG summaries issued to employees of UTSG in relation to each of the four financial years ended 30 June 2017. 10 Any PAYG summary issued to any employee of UTSG in relation to the period after 30 June 2017. 11 Any document recording communication between the Australian Taxation Office and UTSG or its agents in relation to the period 1 October 2013 to 30 April 2018. … Relocation to new premises 30 All documents relating to the relocation, or potential relocation, of UTSG's business, including the medical services it and its contractors and associates provided at the Premises, from the Premises to any other premises, including: a. any quotes, invoices, receipts or other document relating to the incurring or payment of costs and expenses by or on behalf of UTSG; and b. any notifications to or correspondence with patients or any official bodies or authorities (whether medical or otherwise) regarding the relocation from the Premises, including in relation to the storage and relocation of medical records. For the purposes of this sub- paragraph, it is necessary only to produce a copy of the template notification sent to all patients, rather than a copy of each notification that was sent to every patient. … Establishment of Medical Business at 280-282 Pitt Street 33 Any lease, licence, agreement, development application or approval, or other document relating to the occupation, or proposed occupation, of the premises located at 280-282 Pitt Street, Sydney in relation to the period 1 April 2016 to 30 April 2018. 34 Any quotes, invoices, receipts or other document relating to the incurring or payment of costs and expenses by or on behalf of UTSG in establishing the medical business at 280-282 Pitt Street in relation to the period 1 April 2016 to 30 April 2018. 35 Any document relating to the sale or transfer of the business located at 280-282 Pitt Street to Dr Baig including, but not limited to: a. Sale of business, transfer or other agreement; and b. Documents relating to the negotiation, transfer or implementation of the relating to the sale, transfer or other agreement. [sic] 36 Copies of all financial reports showing monthly revenues and expenses from the medical practice operated by UTSG from 280-282 Pitt Street, Sydney during the period 1 April 2017 to 30 April 2018. 37 All documents relating to the ownership and access to the patient's database referred to in paragraph [76] of the Singh Affidavit between 1 July 2016 and 30 April 2018.
Much of the material sought by Sydney Metro were documents that UTSG ought to have had in its possession given the expert forensic accounting and valuation evidence required by it to successfully prosecute its claim.
At no point did UTSG seek to set aside the NTP.
On 25 May 2018 the Court made orders that amended the timetable set out in the 27 April 2018 orders. These included orders that UTSG serve: 1. any further lay evidence in relation to disturbance losses by 8 June 2018; 2. the expert evidence of Mr Allsopp and any expert planning evidence in relation to relocation costs by 20 June 2018; and 3. points of claim by 20 June 2018.
The NTP was first returnable before the Registrar on 31 May 2018. On that occasion, no documents were produced by UTSG. The Registrar stood the NTP over to 12 June 2018.
UTSG failed to serve any further lay evidence in relation to disturbance losses by 8 June 2018, contrary to the 25 May 2018 orders.
UTSG also failed to produce any documents pursuant to the NTP by the second return date of the NTP, namely, 12 June 2018.
On 12 June 2018 the Court relevantly ordered that the NTP be stood over until 19 June 2018, and that UTSG serve all of its lay evidence by 15 June 2018.
On 14 June 2018 UTSG's solicitors served a document entitled "Index to Notice Produce" and provided a Dropbox link containing a tranche of documents produced in partial compliance with the NTP.
UTSG failed to serve any further lay evidence by 15 June 2018, contrary to the 12 June 2018 orders.
On 19 June 2018 the Registrar made orders standing the NTP over to 22 June 2018, and directing UTSG to serve an affidavit explaining the reasons for its delay in serving its further lay evidence in accordance with the orders of 25 May and 12 June 2018, and failure to comply fully with the NTP.
UTSG failed to serve its points of claim and failed to serve any further expert evidence, including the foreshadowed expert report of Mr Allsopp and the expert planning evidence, by 20 June 2018, contrary to the 25 May 2018 orders.
At a further return of the NTP on 22 June 2018 before Moore J, Sydney Metro submitted to the Court that in relation to the Mullins report and the documents required to be produced under the NTP: That report as far as the respondent currently apprehends it doesn't exhibit or otherwise refer to your contemporaneous financial materials, and in particular does not contain either in electronic or in printed form the general ledger of the business. Now, the respondent's yet obviously to serve its evidence in respect of disturbance loss and it's anticipated at this stage that part of that case will be a forensic report dealing with the veracity or otherwise of the underlying financial amounts which are said to be losses - said to be earnings and expenses of the business which are the subject of the resumption.
On 25 June 2018 the Court ordered UTSG, by 29 June 2018, to: 1. produce documents under the NTP, together with an affidavit verifying the adequacy of its searches; 2. produce the general ledger of the business; 3. produce its practice management system(s); 4. produce bank statements for all accounts associated with the business; 5. serve its points of claim; and 6. serve its completed lay and expert evidence.
These orders were important because while compliance with the NTP was still required, the Court made specific additional orders for the production of certain classes of financial documents.
The 25 June 2018 orders included a guillotine order that UTSG not be permitted to rely on any lay or expert evidence at hearing that was served after 5:00pm on 29 June 2018, other than with leave of the Court.
On 25 June 2018 at 4:10pm UTSG's solicitors provided Sydney Metro with a spreadsheet document entitled "UTSG financials backup 28 May 2018".
On 26 June 2018 UTSG's solicitors notified Sydney Metro that UTSG had no documents to produce in response to one of the orders made by the Court on 25 June 2018.
On 29 June 2018 at 9:37am UTSG's solicitors sent an email to Sydney Metro stating that UTSG had complied fully with the orders in respect of production under the NTP and production of a general ledger.
On 29 June 2018 at 1:01pm UTSG sent an email to Sydney Metro serving the following lay and expert evidence: 1. an affidavit of Ms Singh dated 29 June 2018; 2. an affidavit of Mr Hollins sworn 28 June 2018; 3. an affidavit of Mr Muhammad Fahad (also known as Mr Fahad Siddiqui) dated 28 June 2018; and 4. the expert report of Mr Allsopp dated 28 June 2018 ("the Allsopp report").
Later that day at 2:07pm, UTSG's solicitors sent an email to Sydney Metro regarding the location of UTSG's electronic medical patient files. Later still, at 4:41pm, UTSG's solicitors sent an email to Sydney Metro stating that UTSG had no further documents to produce. At 5:39pm UTSG's solicitors sent an email to Sydney Metro serving the affidavit of Mr Dunn filed 29 June 2018. Shortly thereafter, UTSG's solicitors sent an email to Sydney Metro attaching a spreadsheet entitled "VACCINE Loss of Revenue Projection for 17 Nov 2015".
Finally, on 29 June 2018 UTSG filed and served its points of claim.
As at that date UTSG had failed to produce, contrary not only to the NTP, but also the 25 June 2018 orders: 1. all outstanding documents under the NTP (save for two documents produced on 25 and 29 June 2018 respectively, and the documents exhibited to the affidavits served on 29 June 2018); 2. the general ledger of the business; 3. its practice management statements; and 4. all bank accounts associated with the business.
On 2 July 2018 UTSG's solicitor, Mr Dunn, was cross-examined regarding UTSG's non-compliance with the NTP. Again, Sydney Metro submitted to the Court that there had been non-compliance with the NTP. The Court ordered disclosure of a complete set of the financial records of UTSG.
On 4 July 2018 the Court ordered that by no later than 5:00pm on 9 July 2018 UTSG; 1. produce all remaining documents under the NTP; 2. produce the general ledger of the business; 3. produce UTSG's practice management system(s); 4. produce a complete set of bank account records, including all records relating to bank accounts held in the name of other persons or entities (including medical practitioners operating from the premises whose business activities were claimed to relate to UTSG's business, and accounts not in the possession, custody and control of UTSG upon which it had relied for evidentiary purposes, including Mr Mullins valuation report), and a list of available identifying details of those accounts (including account names and account holders); and 5. a list setting out the steps taken to identify the documents, verified by affidavit by a proper officer of UTSG.
UTSG failed to produce any further documents under the NTP, failed to produce the general ledger of the business, failed to produce UTSG's practice management system, failed to produce a complete set of bank account records, and failed to serve an affidavit in accordance with the 4 July 2018 orders by 9 July 2018.
On 10 July 2018 UTSG filed and served a Notice of Change of Solicitor, appointing Mr Damian Ward of Mills Oakley to act as its solicitor in the place of Mr Dunn of Stacks.
On 24 July 2018 the Court extended the time for UTSG to comply with the 4 July 2018 orders to 4.30pm on 25 July 2018. The matter was also stood over for directions to 26 July 2018.
Again, consistent with a now all too familiar pattern, UTSG failed to produce any of the relevant business records the subject of the 4 July 2018 orders.
At 7:35pm on 25 July 2018, UTSG served an affidavit of Ms Singh sworn 25 July 2018. The affidavit exhibited two volumes of documents which were served on Sydney Metro on 26 July 2018. It did not, however, identify any bank records or bank details pursuant to the 4 July 2018 orders, other than some bank accounts under the direct control of Ms Singh.
On 26 July 2018 UTSG produced a further tranche of documents to the Court, comprising three folders of confidential records from UTSG's practice management system (which contained patient names) and two folders of other documents. This resulted in partial compliance with the NTP. UTSG failed to redact the patient names and failed to serve an affidavit in accordance with the 25 June 2018 orders. Instead, UTSG sought a confidentiality undertaking from Ashurst (the solicitors acting for Sydney Metro) in relation to the documents produced.
On 26 July 2018, when the matter was before Moore J, Sydney Metro foreshadowed the following further expert evidence: …The respondent has engaged Dr Ferrier to prepare a business valuation essentially, and it may be anticipated that he will deal with methodology, the paucity of this information and he can't apply methodology to it. There is also what I might describe as, and I think I described it to your Honour before, using the double term forensic, forensic accountant, and that's the veracity of this information. This is what else must exist. This is where there's a hole and so on, and I think I've identified to your Honour before that there's metadata issues and things that will be investigated by that person
On 2 August 2018 the Court granted general access to Sydney Metro in relation to the five folders of documents produced by UTSG on 26 July 2018, subject to a confidentiality undertaking being given by Sydney Metro's solicitors with respect to the three folders of unredacted confidential records.
On 10 August 2018 Ashurst sent an email to UTSG's solicitors regarding compliance with the NTP and seeking the identity of various doctors.
On 20 August 2018 UTSG produced a further two volumes of documents and a USB containing various correspondence.
On 21 August 2018 UTSG's solicitors again sent an email to Sydney Metro regarding the identity of various doctors referred to in the documents produced.
The previously foreshadowed business valuation report of Dr Ian Ferrier was served by Sydney Metro on UTSG on 22 August 2018 ("the Ferrier report").
In the meantime, the following subpoenas were issued to Dr Baig: 1. on 31 May 2018 Sydney Metro filed a subpoena addressed to Dr Baig ("first Baig subpoena") dated 31 May 2018; 2. on 1 June 2018 a copy of the first Baig subpoena was served on UTSG's solicitors; 3. the first Baig subpoena was returnable on 14 June 2018, at which time Dr Baig did not appear. Ashurst emailed Dr Baig informing him that the first Baig subpoena had been stood over to 19 June 2018; 4. on 18 June 2018 Dr Baig emailed Ashurst saying, "please see attached for Subpoena to Produce of documents/information. Note this is all I have and able to provide to comply with reference to Schedule 1 and Schedule 2. You will note that it has taken me more than a week to find these documents which is in my possession. I will require substantial spend of effort and funding to be able to try to locate and/or access the remainder of requested. With reference to definitions and subpoena to produce 'Ms Singh' I am unclear as to your request or relevance to subpoena." Because he did not appear on 19 June 2018, the subpoena was stood over to 22 June 2018. Dr Baig was informed accordingly; 5. Dr Baig did not produce any documents to the Court on 22 June 2018. The subpoena was again stood over until 2 July 2018. Dr Baig was again informed of the order. Again he did not appear and orders were made standing the subpoena over until 23 July 2018; 6. on 13 July 2018 Sydney Metro filed a subpoena addressed to Dr Baig ("second Baig subpoena") dated 13 July 2018; 7. on 20 July 2018 Dr Baig produced a number of tax returns to the Registry pursuant to the second Baig subpoena. Dr Baig stated that he had no other records in his possession in response to that subpoena; 8. on 14 August 2018 Ashurst emailed Dr Baig regarding his compliance with the first and second Baig subpoenas and informed Dr Baig that both subpoenas had been stood over to 20 August 2018 before the trial judge; and 9. on 18 August 2018 Dr Baig emailed Ashurst stating that he had provided all documents which were in his possession in respect of both subpoenas.
Nothing further has been produced in answer to the first or second Baig subpoenas.
Based on inconsistencies in the material advanced by UTSG as the basis for its claim, Sydney Metro engaged a forensic accountant from KPMG to carry out a review of the documentation provided to determine what, if any, information was reliable and verifiable. Mr Luke Howman-Giles of KPMG prepared an expert forensic accounting report which was served on UTSG on 16 August 2018 ("the Howman-Giles report").
As a consequence of the service of the Howman-Giles report, Mr Mullins took the extraordinary step of withdrawing his report on 20 August 2018.
The withdrawal of the Mullins report was the principal reason for the initial hearing of the proceedings listed in August 2018 being vacated (UTSG at [22] and [33]-[36]): 22 The reasons for UTSG seeking the vacation of the trial are essentially three-fold and were supported initially by two affidavits of Mr Damian Ward, the solicitor for UTSG, sworn on 20 August 2018, with a further affidavit sworn by Mr Ward on 22 August 2018: (a) first, the purportedly late service of the KPMG Report (see the first affidavit by Mr Ward). And the late filing of the Ferrier Report; (b) second, the asserted ill health of the principal director of UTSG, Ms Simran Singh. Ms Singh appears to be, to all intents and purposes, the mind and will of UTSG (see the second affidavit by Mr Ward. In respect of the second Ward affidavit, it should be noted that the Court declined to make an order of confidentiality urged upon it by UTSG in relation to its contents on the basis that there were insufficient grounds warranting the making of such an order); and (c) third, as the Court was informed on 22 August 2018, of the withdrawal by Mr Mullins of his expert evidence on 20 August 2018, following receipt of the KPMG Report (see the third affidavit of Mr Ward, especially at annexure 'B'), thereby leaving UTSG with no expert accounting evidence, a state of affairs highly prejudicial, if not fatal, to its claim. … 33 As referred to above, some time on 20 August 2018, Mr Mullins, acting entirely appropriately given his paramount duty to the Court and consistent with his duties as an expert, withdrew his expert opinion. His reasons for doing so are contained in his letter dated 21 August 2018, annexed to the third Ward affidavit. In summary, it appears that upon receipt of the KPMG Report it became evident that Mr Mullins was not given sufficient documentation and material to proffer an expert opinion and that he did not "consider that he was able to rely upon the financial materials that I have been provided" with. 34 As the above chronology demonstrates, the proceedings have involved a very lengthy interlocutory process, characterised by UTSG's continual default and non-compliance with court orders. 35 I accept that, as Sydney Metro submitted, to the extent that Sydney Metro was late in the service of any of its expert accounting evidence this was due entirely to the non-compliance and default by UTSG. 36 Further, as Mr Mullins himself makes clear in his letter dated 21 August 2018, he has had to withdraw his opinion because of the failure of UTSG to properly instruct him and provide him with the necessary materials for him to properly form an opinion. That this came to light as a result of the service of the KPMG Report is not the fault, as UTSG sought to submit, of Sydney Metro.
The Court went on to conclude that although there was an insufficient basis for the vacation of the trial on the basis of Ms Singh's alleged ill health, the hearing should nevertheless be vacated because (at [54]): 54 … Although the Court finds that the withdrawal of his expert opinion was caused by the failure of UTSG to properly instruct and brief Mr Mullins, the fact remains that the withdrawal by Mr Mullins of his opinion leaves UTSG in a gravely prejudiced state that cannot be remedied prior to the hearing commencing next week.
The Court also took the opportunity of summarising the plethora of defaults of UTSG up until that point (at [26]).
The proceedings were vacated and the matter was relisted for directions on 28 August 2018, whereat the Court ordered that UTSG serve: 1. electronic copies of various emails; 2. any further lay evidence by 25 September 2018; and 3. any expert evidence in response to the Mr Howman-Giles report by 9 October 2018, with joint conferencing to occur by 23 October 2018.
None of the 28 August 2018 orders were complied with.
On 18 September 2018 the Court therefore made orders that UTSG: 1. file and serve its written submissions and an agreed statement of facts by 28 September 2018; 2. produce the emails referred to in the 28 August 2018 orders forthwith; 3. verify by affidavit to be filed and served by 28 September 2018 whether the emails produced in electronic form pursuant to the orders made on 28 August 2018 were a complete set of the emails previously produced by UTSG in pdf or hardcopy form and, if not, the reason why an electronic version of the outstanding emails had not been produced, including the steps taken to locate and identify the emails, details of all searches and inquiries undertaken, and the results of those inquiries; and 4. provide the registration numbers or service provider numbers of various health professionals.
On 15 October 2018 Ms Singh gave evidence in relation to the adequacy of UTSG's production of documents. During her cross-examination she somewhat astonishingly claimed that she was not aware of the 18 September 2018 orders in relation to the production of documents (T91:40-93:11).
Earlier, on 12 October 2018, in relation to the first and second Baig subpoenas, during cross-examination Dr Baig stated that he had "actively" tried to find the documents referred to in the subpoenas (T45:05-47:07). Nonetheless deficiencies remained in the production of documents by Dr Baig.
On 19 October 2018 the Court ordered that: 1. UTSG file and serve any further lay and expert evidence in relation to business extinguishment, loss of profits (including past and future profits and any loss of profits associated with any past or future relocation (actual or hypothetical)), and wasted relocation costs (but not future or hypothetical relocation costs) by 30 November 2018. If UTSG failed to serve any further lay or expert evidence by this date, it would not be permitted to file or serve, or to rely upon, any further evidence at the hearing of the proceedings absent leave of the Court; and 2. if UTSG was to serve any further expert accounting evidence, the parties' accounting experts were to confer and prepare a joint report by 21 December 2018;
On 30 November 2018 UTSG served its lay evidence and expert evidence as annexures to an affidavit by Ms Singh dated 30 November 2018. This evidence included the Goodyer report, the Mullins report, and a report from Mr Watts dated 28 November 2018 ("the Watts report"), ostensibly prepared in response to the Howman-Giles report (the Watts report was subsequently rejected in its entirety by the Court: UTSG Pty Ltd v Sydney Metro (No 4) [2019] NSWLEC 51).
On 14 December 2018 the Court made orders that: 1. the parties' experts were to confer and prepare a joint report by 1 February 2019; 2. UTSG was to produce to the Court and to Sydney Metro the electronically maintained records in their native format (as a Quickbooks file, rather than a pdf or Microsoft Excel file) of Appendix 20.1 to 20.26 to the Watts report, by 17 December 2018; 3. UTSG was to produce to the Court the original signed "Business Sale/Purchase Agreement" dated 1 November 2015 between UTSG and 5G (the Business Sale Agreement), by 11 January 2019; 4. by 11 January 2019 UTSG was to provide Sydney Metro with the current contact details, including but not limited to, full name, telephone number, and business address of: 1. Ms Cara Adams, referred to in cl 10.3 of the Business Sale Agreement; 2. Law Partners Accountants & Attorneys Pty Ltd ("LPAA"); 3. Mr Michale Williams; 4. Ms Jessica Cheung (including the alternate spelling of "Chang"); and 5. Ms Jessica Leung; and 1. by 18 January 2019 UTSG was to produce to the Court all correspondence and documents recording communications between UTSG and its representatives and 5G and its representatives regarding the Business Sale Agreement for the period 1 July 2015 to 31 December 2016.
On 29 January 2019, Dr Ferrier and Mr Mullins (the business valuers) completed their first joint report ("the first joint valuation report").
On 31 January 2019 Mr Howman-Giles and Mr Watts (the forensic accountants) completed their joint report ("the joint forensic accounting report").
On 28 February 2018 the Court made orders including that: 1. the parties' business valuation experts were to complete any further joint conferencing and serve a further joint report by 8 March 2019. The further joint report was to address any issues arising from the joint forensic accounting report; 2. Sydney Metro was to file and serve any further lay evidence upon which it intended to rely by 1 March 2019; and 3. UTSG was to file and serve any lay affidavit evidence in reply to the further lay evidence, if any, filed and served by Sydney Metro by 8 March 2019.
On 7 March 2019, Dr Ferrier and Mr Mullins completed their second joint report ("the second joint valuation report").
On 15 March 2019 the Court made orders that: 1. UTSG was to file and serve any further lay evidence in response to Sydney Metro's lay evidence by 22 March 2019; 2. UTSG was to serve a list of witnesses that it intended to call to give evidence at the hearing by 22 March 2019; 3. UTSG was to file and serve any amended points of claim by 22 March 2019; and 4. Sydney Metro was to file and serve any amended points of defence by 25 March 2019.
As stated above, successive iterations of amended points of claim were provided by UTSG between 22 and 28 March 2019. The version upon which UTSG ultimately relied was that identified by it on the first day of the trial, namely, the amended points of claim dated 22 March and filed on 25 March 2019.
Apart from Mr Mullins and Mr Watts, the only other witnesses that UTSG notified Sydney Metro that it wished to rely upon were those listed at paragraph 126 of the amended points of claim, namely, Ms Singh and Dr Abdul Shakoor, a purported "director" of 5G.
The matter was heard for seven days in April 2019. Because it was not completed within this time (it was adjourned part-way through Ms Singh's evidence) it was fixed for a further five days of hearing commencing on 29 July 2019 (see UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [2]).
However, on 18 July 2019 by way of ex parte email communication from Ms Singh to the Court, UTSG sought to vacate the hearing of the resumption of the part-heard matter based on Ms Singh's ill health.
Reluctantly, given the paucity of the medical evidence adduced in support of the application and the fact that Dr Baig remained a director of UTSG and was therefore capable of providing instructions and representing the company (UTSG (No 5) at [63]), the Court acceded to the vacation request on the basis that it was unsafe to proceed with the hearing while Ms Singh's evidence had not been completed (at [65]-[67]).
The matter resumed on 26 September 2019 for the completion of Ms Singh's evidence, and thereafter, at various intervals for a further nine days (the hearing took 17 days in total, excluding the numerous days occupied with interlocutory applications and directions hearings, almost all of which were necessitated by UTSG's failure to comply with Court orders) to deal with the business valuation expert evidence, the forensic accounting expert evidence, the limited lay evidence and the final submissions of the parties.

The Real Issues for Determination in the Proceedings

Properly analysed, the claim by UTSG did not raise complex issues of either fact or law for determination. Rather, the gravamen of its claim for compensation was the availability and quantification of its past and future relocation costs. For the sake of clarity, however, the real issues for determination in the proceeding can be identified as follows: 1. the true nature and scope of UTSG's business at 40 Park St; 2. whether UTSG in fact relocated its business to 280 Pitt St; 3. if so, what were the "financial costs reasonably incurred in connection with the relocation" pursuant to s 59(1)(c) of the Just Terms Act; 4. whether an alternative basis for its claim for past relocation costs was available under s 59(1)(f) of that Act; 5. if maintainable, what was the quantification of the past relocation costs? 6. whether a claim for future relocation costs could be brought under either s 59(1)(c) or (f) of the Just Terms Act; 7. if maintainable, whether UTSG in fact decided to relocate to another leasehold in the future; 8. assuming that a claim for future relocation costs was available, what was the quantum of the recoverable costs; 9. whether a claim for lost profits could be established under s 59(1)(c) or (f) of the Just Terms Act; 10. if so, what was the appropriate quantification of any lost profits having regard to the evidence, and in particular the expert evidence, before the Court; 11. whether a claim for compensation for either of the Supreme Court proceedings was available under s 59(1)(f) of the Just Terms Act; 12. whether UTSG owed any unpaid rent to Sydney Metro for its occupation of 40 Park St after the date of acquisition, and if so, in what amount; 13. if it did, whether the rental arrears could be offset against the amount of compensation, if any, owed to UTSG by Sydney Metro; 14. what was the total amount of compensation, if any, UTSG was entitled to; and 15. what was the appropriate order as to costs?

The Evidence of the Parties

Unsurprisingly, no agreement could be reached as to what material was required to be put into evidence before the Court. Consequently, the tender bundle comprised 18 volumes (including two volumes of material tendered by UTSG which became Ex A), the court book totalled 12 volumes, and the supplementary court book resulted in another six volumes of material. It is equally unsurprising that the Court was taken to only the smallest of fractions of this material, particularly by UTSG in the prosecution of its claim.
The only lay evidence that was ultimately relied upon by UTSG at the hearing were Ms Singh's May, June, July and November 2018 affidavits and an affidavit sworn by her on 12 April 2019.
The following affidavit evidence was filed and served by UTSG but was not read at the hearing: 1. an affidavit of Dr Baig dated 21 January 2019 (not relied upon by UTSG); 2. two affidavits of Mr Dunn dated 20 and 29 June 2018 (not relied upon by UTSG); 3. an affidavit of Mr Hollins dated 28 June 2018 (not relied upon by UTSG: T111:30-35 and 113:23-24); 4. an affidavit of Mr John Frisken dated 26 March 2019 (not relied upon by UTSG: T113:24-29); and 5. an affidavit of Mr Fahad dated 28 June 2018 (not relied upon by UTSG: T113:14-29).
The following expert evidence was served and relied upon by UTSG: 1. the Allsopp report. This was, however, rejected by the Court on 9 April 2019 (pursuant to an objection by Sydney Metro), on the basis that Mr Allsopp lacked suitable qualifications and expertise to give the opinion set out in his report, did not explain the basis of his opinion, lacked impartiality, and was not available for cross-examination (T81-82:23); 2. the evidence of Mr Watts, which was rejected by the Court on 11 April 2019 (see UTSG (No 4)); and 3. the Mullins report (discussed in detail later in this judgment).
UTSG also appeared to rely on the Goodyer report. Notwithstanding that the Goodyer report was attached to other material that was in evidence before the Court, such as the expert report of Mr Chris Holland prepared for Sydney Metro (Determination of compensation acquisition of a leasehold interest at 40 Park Street, Sydney NSW 2000 VGC JT 00503 ("the VG's determination report")) which formed the basis of the compensation awarded to UTSG by the VG, and one of Ms Singh's affidavits, the report was never separately served on Sydney Metro during the proceedings and Mr Goodyer was not made available for cross-examination. Given the untested nature of the content of his report and the fact that it was, at least in part, based on inaccurate financial information (discussed later in the judgment), no weight can be placed on it.
The following lay evidence was served on behalf of Sydney Metro: 1. two affidavits of Mr Anthony Hill dated 8 February and 1 March 2019 ("Mr Hill's February affidavit" and "Mr Hill's March affidavit", respectively). Mr Hill is a partner at Ashurst; 2. an affidavit of Mr Lachlan Wright dated 1 March 2019. Mr Wright is a solicitor employed by Ashurst. Mr Wright deposed that he contacted Dr Rajan Parhawk, who stated that he had never worked at 40 Park St; 3. an affidavit of Ms Nisreen Rabah dated 4 March 2019. Ms Rabah is employed by Ashurst in Dubai; and 4. two affidavits of Ms Kylie Wilson dated 22 and 28 August 2018. Ms Wilson is a solicitor employed by Ashurst. In her affidavits she deposed to the procedural history of the proceeding, much of which is described above.
Sydney Metro's expert evidence comprised of: 1. the Ferrier report; 2. the Howman-Giles report; and 3. the first and second joint valuation reports, all of which are analysed in depth below.

Ms Singh's Evidence

While it is not necessary for the determination of the real issues in dispute to summarise, or even expressly refer to, all of the evidence relied upon by the parties, especially the lay evidence, it is nevertheless appropriate for the Court to examine in detail Ms Singh's evidence given its centrality to the proceedings and given the highly unfavourable view that the Court has formed concerning the veracity of her testimony.
In Ms Singh's May 2018 affidavit she relevantly deposed that: 1. UTSG was created in 2011 to develop an integrated healthcare practice in Sydney CBD. The trademark and branding "V Health Plus" was created for this purpose; 2. 40 Park St was chosen as a "flagship centre" because it allowed for seven day trading, had the capacity to house "the necessary IT infrastructure for a hub office" and was the subject of a "5+5 year lease and an informal agreement for first right of refusal to buy for about $17 million" (a claim she repeated in her June 2018 affidavit); 3. UGST relocated its business from 92 Pitt St and two other locations to 40 Park St. Commencing on 1 March 2013, the lease was initially between Gwynvill and UTSG Consortium; 4. the lease was transferred from UTSG Consortium to UTSG on 1 January 2014; 5. on 15 October 2015 UTSG formally launched the operations of the V Health Plus integrated healthcare centre at 40 Park St; 6. during the latter part of 2015 she was in negotiations with investors about the establishment of satellite centres in different geographic locations. There was no mention of any potential sale of V Health Plus to 5G; 7. she received notice of the acquisition on 8 April 2016; 8. in late 2016/early 2017 there was a negotiation to sell "part of" UTSG's business to Tasly; 9. sometime around June 2017 she was able to obtain space at 280 Pitt St for the purpose of the relocation of UTSG's business; 10. as of August 2017 she "restructured UTSG and transferred the relocated part of the practice to Dr Mirza Baig. It is my understanding that the practice at 280-282 Pitt Street operates in a significantly reduced capacity with only 2 doctors remaining including Dr Mirza Baig. I have no involvement in that practice"; and 11. it was her intention not to extinguish UTSG's business but to relocate it instead.
In Ms Singh's June 2018 affidavit she stated that: 1. following UTSG's incorporation in April 2011, she found "getting finance for a start-up business difficult" so she obtained a line of credit from the Commonwealth Bank of Australia ("CBA"); 2. UTSG "did not engage staff directly and a number of Master Services Agreements (MSA), or similar contracts, were subsequently entered into in order to provide the necessary services to UTSG, and in the case of the medical and dental MSAs, the income stream"; 3. "UTSG derived its income as a percentage from the companies that provided the medical and dental services, V Health Solutions Pty Ltd and V Health Plus Awesome Smiles Dental Pty Ltd"; 4. by April 2016, after having been locked out of 40 Park St by Gwynvill, UTSG was "operating well" and business performance was "exceeding projections"; 5. UTSG was planning to expand its business. It was also planning the partial sale of its general practice to Tasly for $2 million to occur on 16 January 2017. Significantly, there was no mention of any sale to 5G; 6. on 15 June 2017 the relocation of part of UTSG's business (the general practitioner service) to 280 Pitt St commenced. The premises at 280 Pitt St consisted of a lease of the rear of part of a chemist; 7. by August 2017 "the UTSG business" had reduced to less than 20% of its pre-acquisition operations. UTSG was therefore restructured and she informally "transferred the relocated part of the practice to Dr Baig for no consideration", including relocating its "45,000 active patients' database for essential patient continuity of care to 280-282 Pitt Street". Patient information was given to Dr Baig and he in effect took over the premises and equipment at 280 Pitt St, and conducted his own medical practice business at that location; and 8. that because of TNSW's refusal, until 9 February 2018, to release any of the advance compensation payment to UTSG following its departure from 40 Park St on 31 July 2017, UTSG lost opportunities to "relocate its flagship establishment".
Ms Singh's July 2018 affidavit was prepared pursuant to the orders of the Court made on 4 July 2018, namely, that the response to the NTP issued on 17 May 2018 be verified by a director of UTSG. In the July 2018 affidavit Ms Singh sought to explain the paucity of the documentary material produced in answer to the NTP as follows: 1. that UTSG used a specialist medical software program, "Best Practice Software" ("BPS"), which recorded appointments, patient details and amounts invoiced to Medicare. However, a number of the medical practitioners used a range of individual specialist software programs to support their practices in addition to BPS. There was no integration between those programs and BPS and she did not have possession or control over those individual software programs; 2. that she was able to obtain hard copy printouts of UTSG's records from BPS on 30 September 2017, which she would produce, but that in respect of the most recent medical appointments the printouts only recorded V Health Plus's revenue derived from the Medicate rebate. They did not show the total amount paid to V Health Plus arising from each consultation, that is, the revenue earned by V Health Plus; 3. during the relocation to 280 Pitt St, which involved moving the IT system, Dr Baig commenced proceedings in the Supreme Court, during which he transferred the licence for BPS to Arys Health, a business owned by a company of which he is a director. The historical data that was contained within BPS that related to V Health Plus "has been overridden". Further, Dr Baig had "interfered with the vhealthplus.com.au server and subsequently closed the accounts". Therefore, she did "not have access to the accounts that existed in the period 2013 to 2017"; 4. she did not have access to emails that used the domain vhealthplus.com.au (notwithstanding her continued use of the email address "rs@vhealthplus.com.au"); 5. the patient database, including the patient medical records, current as at December 2016 was transferred to Tasly as part of the agreement that Dr Baig provide services to Tasly. It was her "belief" that the database remained in the possession of Tasly; and 6. specific responses to the 44 categories of documents in the NTP. Her responses to many of the categories was to the effect that there were no documents to produce or no further documents to produce.
As discussed below, Ms Singh's purported explanations contained in her written (and subsequent oral) evidence about the absence of documentary records for UTSG's alleged business and financial affairs are not credible and cannot be accepted.
In Ms Singh's November 2018 affidavit, in addition to annexing the Watts report and the Goodyer report, she raised for the first time the alleged sale of the medical and dental business of UTSG to 5G and annexed the purported Business Sale Agreement dated 1 November 2015. She claimed that she had only recently discovered the Business Sale Agreement, which was why it had not been included in her June 2018 affidavit or "in the bundle of documents tendered in evidence to the Court". This was so notwithstanding that the document had been provided to UTSG's solicitors at the commencement of the proceedings.
Clause 5 of the Business Sale Agreement concerning "Completion" was in the following relevant terms: 5. Completion 5.1 Time and place of Exchange and Settlement of Completion Exchange of Contracts is to occur before the Completion Date of 15th December 2015; and, Settlement of Completion is to occur on 30 April 2016. Exchange and Settlements to occur at the Purchasers Agent office, Level 22 of 44 Market Street, Sydney, New South Wales, office of the LAW PARTNERS ACCOUNTANTS & ATTORNEYS PTY. LTD.
Clause 10.3 provided that: 10.3 Local address of parties For the purposes of this clause, the address of a person is the address set out below or another address of which that person may from time to time give notice to each other person: Vendor: Ms. Simran Singh, V Health Plus 40 Park Street, Sydney CBD New South Wales Australia Purchaser: Ms. Cara Adams, Law Partners Accountants and Attorneys Pty Ltd, Level 22, 44 Market Street Sydney, CBD, New South Wales AUSTRALIA
On behalf of UTSG the Business Sale Agreement was allegedly executed by Ms Singh as "Managing Director". Her signature was witnessed by Dr Baig. On behalf of 5G the Agreement was signed by "Abdul Shakoor" as "Managing Director". According to the Business Sale Agreement, 5G was located in Dubai, UAE. The sale price was $14,570,000 USD, to be completed by 30 April 2016.
Sydney Metro submitted that the Business Sale Agreement was a sham, created by UTSG for the purpose of manufacturing evidence in support of its claim for compensation. As explained further below (at [178]-[188]), this submission must be accepted.
Finally, in her April 2019 affidavit Ms Singh deposed that: 1. Dr Baig had been reappointed as a director of UTSG on 11 April 2019 (that is, after the commencement of the hearing); 2. the lease for 40 Park St was for 10 years, entered into on 1 March 2013 and terminating on 2023. UTSG exercised a term of "5 plus 5 years" at the commencement of the lease "with an informal agreement of having the first right of refusal"; 3. because of the 10 year lease term UTSG undertook "substantial structural improvements and entire [sic] of the ground floors and first floor refurbishment" at 40 Park St. It also installed a floor on the second level. UTSG owned the fitout; 4. she did not read the contents of her May 2018 and June 2018 affidavits before signing them "due to pressing time of requiring to meet the court orders"; and 5. she only discovered the "chronic set of non-compliance by the Applicant without any prior knowledge" when she attended Court on 12 October 2018.
I agree with Sydney Metro that Ms Singh's evidence, both oral and written, was so replete with inconsistencies and untruths that unless independently verified by objective evidence, in contested matters of fact determinative of an issue in dispute in the proceedings, it cannot be accepted by the Court.
Put simply, Ms Singh is a serial liar.
In arriving at this conclusion, and in making the findings that I have regarding Ms Singh's credit, I am mindful that two conditions must be established: first, it is necessary for the Court to identify the reason or reasons why it has concluded that the truth has been withheld; and second, Ms Singh must have been given the opportunity of responding to the criticism (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [67], State of New South Wales v Hunt [2014] NSWCA 47; (2014) NSWLR 226 at [32]-[40] per Leeming JA and Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 at [56]-[59] per Duggan J).
In respect of the first condition, what is required is "a proper analysis of the competing evidence, so as to 'engage with, or grapple or wrestle with the cases presented by each party'" (Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116] quoted in Hunt at [37]). There must, moreover, be clear and cogent proof of the findings made (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 cited in Hunt at [37]).
In respect of the second condition, there is a substantial difference between the rejection of a person's evidence and a finding that she, he, or they deliberately lied (Hunt at [40]). The distinction between an imperfect recollection and a fabrication was put in the following way in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (at 268), "something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence".
As the transcript makes tolerably clear, properly analysing the competing evidence was rendered difficult, if not at times impossible, by the haphazard and often contradictory manner by which the proceedings were conducted by UTSG. Witnesses were not called, reference to the extensive documentary material before the Court was not made, the cross-examination of Sydney Metro's witnesses was largely irrelevant, and UTSG's oral and written submissions, save for some exceptions, did not address the real issues for determination in the proceedings and were subject to change at little or no notice. But as the transcript also makes plain, the adverse allegations critical to and determinative of the real issues for determination by the Court were put to UTSG's witnesses, including, at length, to Ms Singh.
In finding that Ms Singh is not a witness of truth, I am acutely mindful of the gravity of the nature and substance of the allegations made against her, allegations that include the fabrication of email communications, the fabrication of a contract of sale, the fabrication of entities to give the appearance of independent advice, and the deliberate provision of materially misleading financial information to the VG, to UTSG's expert forensic accountant, and to the Court (s 140(2)(c) of the Evidence Act 1995).
As was stated in the seminal decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, which I have endeavoured to apply in making my findings (at 361-362): …when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
I am also acutely aware that the very serious nature of the allegations made against Ms Singh, which I have upheld, may have implications that travel beyond the scope of this judgment.
Having said this, finding that Ms Singh has given untrue evidence in material respects, does not mean that the entirety of Ms Singh's evidence must be rejected; merely the contested parts of it. As was recently observed in CCL Secure Pty Ltd v Berry [2019] FCAFC 81, "it has been a long time since the maxim…false in one thing, false in everything...was part of the common law" (at [94]. See also Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [35] per Heydon JA).
There were instances where Ms Singh gave credible evidence. I have, for example, no reason to doubt her demonstrable grief surrounding the death of her father, or that on at least one occasion during the proceedings she genuinely suffered from ill health. Nevertheless, it remains the case that in respect of the evidence necessary to establish UTSG's claim for compensation as set out in its amended points of claim, and as further amended by it during closing submissions, Ms Singh's evidence could not, by reason of its mendacity, be accepted on critical issues in dispute absent independent objective corroboration.
The following matters (far from exhaustive) represent some of the more egregious examples of the deception that Ms Singh, and therefore UTSG (insofar as she conducted the proceedings on its behalf as a director), sought to perpetrate during the course of the proceedings.

The Sham Business Sale Agreement to 5G

The evidence established that the purported sale of part of the business of UTSG to 5G was not a genuine transaction. First, given the significance of this evidence (it is direct evidence of the value of UTSG as at 1 November 2015), it strains credulity to breaking point that there was no reference to the Business Sale Agreement, or any proposed sale to a company in the UAE, in Ms Singh's May, June or July 2018 affidavits, or in any other lay evidence. Rather, it was not until Ms Singh's November 2018 affidavit was filed that the purported sale of part of UTSG's business to 5G was first mentioned.
Second, it was Ms Rabah's unchallenged evidence that she attempted to attend the 5G premises in UAE and found no such business operating from the location stated on the 5G letterhead.
Third, the evidence of Mr Hill, undisturbed in cross-examination, regarding the purported Business Sale Agreement between UTSG and 5G was that: 1. he inspected the documents produced prior to 30 November 2018 by Taxation Guru pursuant to the NTP and subpoenas issued in these proceedings. Taxation Guru is the business operated by Mr Watts. Mr Hill did not locate any reference to the Business Sale Agreement or a proposal for UTSG to sell any part of the business conducted by it at 40 Park St to 5G or any other company located in the UAE; 2. in relation to that part of the business at 40 Park St that was proposed to be sold to Tasly in late 2016 and early 2017, Tasly produced documents to the Court pursuant to a subpoena in relation to the proposed sale. Mr Hill reviewed the documents provided by Tasly and did not locate any reference to a prior or uncompleted sale of the business at 40 Park St to 5G or any other company; 3. searches were carried out on the historical organisation extract for "UTSG Pty Ltd" from the Australian Securities and Investment Commission ("ASIC") on 13 December 2018 ("UTSG ASIC extract"), in order to verify statements made by Ms Singh in her affidavit evidence about the ownership structure of UTSG as a corporate entity. The UTSG ASIC extract recorded the directors of UTSG between the date of the Business Sale Agreement (1 November 2015) and April 2016 as: 1. "Mirza Baig" of 40 Park St, Sydney (born 24 July 1976, Sydney), between 16 October 2015 and 10 September 2016; 2. "Roselyn Singh" of 40 Park St, Sydney (born 29 January 1976, Sydney), between 1 December 2015 and 4 June 2016; and 3. "Snighah Simiran" of 40 Park St, Sydney (born 11 January 1977, Sydney), between 11 October 2015 and 4 June 2016; 1. the UTSG ASIC extract recorded the secretaries of UTSG between the date of the Business Sale Agreement and April 2016 as: 1. "Roselyn Singh" of 40 Park St, Sydney (born 29 January 1976, Sydney), between 1 December 2015 and 12 March 2016; and 2. "Scott Peter" of 5/28 Kent Street, Sydney (born 19 July 1970, Manchester, United Kingdom), between 12 March and 4 June 2016; and 1. Mr Hill could not locate in the UTSG ASIC extract a record of the secretary for UTSG for the period 22 August 2013 to 1 December 2015, and moreover, that during the period 10 May 2011 to 10 September 2013, Mr Daniel Pal (Ms Singh's late father) was a director of UTSG. There are no other time periods in the UTSG ASIC extract where Mr Pal was identified as a director of UTSG, including during the time that the 5G Business Sale Agreement was apparently entered into.
Fourth, in its written opening submissions filed on 4 April 2019, UTSG stated that it learned about 5G through its then solicitor, Mr Rick Mitry of Mitry Lawyers: 6. At the same time, the Applicant carried out its due diligence and learnt about the 5G LLC company through Mr Rick Mitry of Mitry Lawyers, who is from nearby middle-east regional with diverse networking. 7. The Mitry Lawyers, specifically Mr Rick Mitry was fully across the 5G LLC Business Sale agreement and is the law firm that was initially engaged to lodge the preliminary compensation claim on about 19 December 2016.
During her oral evidence Ms Singh confirmed that the contents of UTSG's opening submissions were "absolutely and entirely true" (T305:09-29). However, the statements made by UTSG and Ms Singh were contradicted by Mr Mitry's oral evidence who disavowed any knowledge of 5G (T148:48-149:18): Q. Did you introduce 5G LLC to Ms Singh or do anybody else on behalf of UTSG? A. No, I did not. I don't know anyone or anything about 5G SC. Q. 5G LLC? A. Sorry, 5G LLC. Q. In paragraph 7, the submission document says, "Mitry Lawyers, specifically Mr Rick Mitry was fully across the 5G LLC business sale agreement and is the law firm that was initially engaged to launch preliminary compensation claim." What do you say about the proposition that you specifically were fully across the 5G LLC business sale agreement? A. Well, until these proceedings were brought to my attention last week, I think it was, I had never heard of the 5G LLC. Q. When did you first see the business sale agreement between 5G General Trading LLC and UTSG that I've shown you in the witness box today? A. Just when you've shown it to me today. Q. When did you first hear about a company called 5G General Trading LLC or 5G LLC that was either based in or had an office in United Arab Emirates? A. This morning.
The inconsistency was put to Ms Singh who said that Mr Mitry was a liar and that there were documents that could establish this (T308:06-41). However, these documents were not able to be produced by Ms Singh (the emails tendered by UTSG in this regard did not assist: see Exs B and C) (T363:30-366:10): Q. On Friday at transcript page 316, I was asking whether over the weekend you would be able to access what you referred to as a number of correspondences of Rick Mitry in relation to UTSG's entry into the business sale agreement with 5G LLC. Do you remember that? A. Yes. Q. At page 318, line 13 or so, after I'd asked you a question that suggested to you that you had brought forward no document at all that involves Rick Mitry to support any of your assertions about his involvement, you said that I gave you 10 minutes to prepare for the cross‑examination. If I had given you overnight, you would have produced all these documents because we have all these documents, is what you said. Do you remember that? A. I believe so. Q. Do you have any document to show me, or to produce to the Court, which is a letter of advice or email of advice from Rick Mitry about UTSG's entry into the BSA? A. Mr Lancaster, you will recall that I said that all the dealings of 5G and Rick Mitry was between and through my father; however, I did review some of the documents, and I did have a look at the office of ‑ the OLSC document that I was referring to. I have a copy of that, and that spells out what my complaint, and that would be sufficient to tell you ‑ I believe that Dr Baig would have a copy of that document, if that can be provided. Q. Well, you know, Ms Singh, I'm not talking about that document, are you? A. You are talking about documents and documents that is ‑ not relating to me. I have previously stated that I had no personal dealings or otherwise with Rick Mitry. It was ‑ Rick Mitry was also engaged through my father, or Dr Baig, and as such, I do not have email correspondence between myself and Rick Mitry; however, I did say that there was some communications I was aware of ‑ between Rick Mitry and my father, and I made efforts to look into my dad's emails over the weekend, but those are emails‑‑ Q. And you don't have any document today to produce to‑‑ A. I am not prepared to tender those documents; however, I will ‑ I would like to tender the document that was put to Rick Mitry, with the file number, and that contains the OLSC complaint made ‑ I think that is more‑‑ Q. Please, Ms Singh, I'm not asking you about that. At page 316 of the transcript of what you put forward as your sworn evidence on Friday, at line 18 I asked you: "Q. Do you say there's a letter of advice or email of advice from Mr Rick Mitry about UTSG's entering into the BSA? Is that your evidence? A. Yes. There are a number of correspondence between ‑ of Rick Mitry. Q. Are you able to access those over the weekend? A. At my best endeavours, I may." Do you remember that? A. I applied my best endeavours, and I am not able to produce the sensitive documents between my father and Mr Rick Mitry. Q. That's because no such document exists? A. That's not true. Q. UTSG has never received a letter of advice or email of advice from Rick Mitry about UTSG's entry into the BSA with 5G? A. That's not true. Q. Your evidence denying the non‑existence of those documents is untruthful, isn't it? A. Mr Lancaster, you are insulting me by insulting that question ‑ asking me that question, so I will ‑ I would not answer. HER HONOUR: You have to answer the question. WITNESS: I'll answer your question. I will ask Dr Baig if he can provide me a copy of that OLSC document. LANCASTER Q. I'm not asking about that, Ms Singh, and you know very well I'm not asking you about that? A. It's something that I found in the weekend as my best endeavours, and you are refraining from me ‑ you are not allowing me to present a document, which you know will have the facts. Q. Do you say that you have a document that is a letter of advice, or an email of advice, from Rick Mitry about UTSG's entry into the BSA? A. I cannot answer that. Q. Well, you must answer that. Do you say you have a document like that or not? A. I don't know. Q. Why don't you know? A. Because I don't know. Q. You said on Friday you'd use your best endeavouring to try and find documents like that that you asserted exist, didn't you? A. Yes. And those documents are between Rick Mitry and the late Daniel Pal. It's not‑‑ Q. There's no such document at all, is there? A. You're putting words in my mouth, Mr Lancaster. I do not agree. Q. I'm trying to get you to acknowledge the truth for once, Ms Singh. There are no such documents, are there? A. The truth is your questions are insulting and the truth is‑‑ HER HONOUR: Ms Singh, it doesn't matter what you think about Mr Lancaster's questions. You do need to answer them. If there's something unfair about them, as I said on Friday, I will intervene, or Dr Baig will intervene, but there's nothing, in my view, unfair about the current line of questioning that Mr Lancaster is pursuing. Please do listen to the question and answer the question. WITNESS: Please ask the question. LANCASTER Q. You know very well there is no letter of advice or email of advice from Rick Mitry to UTSG, or anybody representing UTSG, about entering into the BSA with 5G? A. That's not true. Q. Your evidence that there are such correspondences is false evidence? A. That's not true. Q. If they existed, they would be able to be produced by you either in 2018 or this year? A. Is that a question or a comment? Q. It is. A. Is that a question? Q. One reason that we know that they do not exist is because you haven't produced them last year or this year in your case? A. That's not true.
I agree with the submission of Sydney Metro that no documents establishing that Mr Mitry was a "liar" were able to be produced because they did not exist. On the contrary, I found Mr Mitry to be a credible witness, whose testimony I accept. In short, he did not facilitate, nor was he aware of, any alleged sale to 5G.
Fifth, as for the suggestion made by UTSG that Mills Oakley retained documents (pursuant to a lien over UTSG's files after the termination of their services by UTSG) relating to the alleged 5G transaction, such documents were subpoenaed by Sydney Metro and nothing was produced (T380:29-381:24).
Sixth, as discussed in further detail immediately below, there is no cogent evidence that either "LAW PARTNERS ACCOUNTANTS & ATTORNEYS PTY LTD" (that is, LPAA) or "Ms Cara Adams" of LPAA referred to in the Business Sale Agreement genuinely exist.
Seventh, as is also explained below, there is no cogent evidence to suggest that other entities and persons supposedly associated with LPAA, such as TaxSavvy Solutions & Co ("TaxSavvy"), Law Partners, or Ms Jessica Leung, Ms Jessica Cheung, Ms Jessica Chang and/or Mr Michale Williams, in fact exist.
Indeed, in the absence of anything other than the Business Sale Agreement and Ms Singh's testimony, I do not accept that the agreement to sell part of UTSG's business to 5G is legitimate. It must be noted that although Dr Shakoor was identified as a witness upon whom UTSG would be relying during the hearing, he did not give evidence either in written or oral form.

LPAA, TaxSavvy and Associated Persons Are Not Genuine Entities

LPAA was relied upon by UTSG in several different capacities including by providing invoices for accounting services rendered to UTSG, by providing "17 boxes of documents" comprising business records of UTSG, by auditing the financial records upon which Mr Mullins relied to produce his report, as the firm representing the purchaser in the Business Sale Agreement, and as the firm that Ms Singh claims 5G "independently engaged" and which "in turn engaged TaxSavvy Solutions & Co to carry out an independent review and due diligence of the V Health Plus".
In addition, annexed to the Goodyer report was LPAA's Special Purpose Financial Report prepared for UTSG. The Special Purpose Financial Report was stated to be "compiled in accordance with" UTSG's "Financial Audited Report dated 7 March 2017 by LPAA & Co and TaxSavvy Accountants" and it incorporated a certified copy of the "2015 Financials Compilation Report by Gambir Watts & Co as at 13 May 2016". The footer stated, "LPA Accountants: Prepared by Jessica Leung CPA. Approved by Cara Adams, CPA".
As he deposed in his affidavits, Mr Hill caused an extensive investigation into LPAA to be carried out. These investigations revealed that: 1. according to ASIC searches, LPAA was registered on 8 July 2015 and deregistered on 2 December 2018; 2. according to ASIC searches, between the time of its registration to 29 August 2016, LPAA's registered office and principal place of business was 40A Park St, Sydney, NSW, 2000, and from 29 August 2016 until its deregistration, its registered office was 44 Market St, Sydney, NSW, 2000. However, only one building is physically located at both 40 and 40A Park St. Furthermore, on 27 August 2013 Building Certificates Australia Pty Ltd granted an occupation certificate to "Dr Roselyn Singh" in respect of a development consent for premises located at 40-40A Park St, Sydney. In addition, in acquiring various properties for the purpose of constructing the Pitt St Metro station, no property was identified as 40A Park St that was separate to 40 Park St. No claim was lodged by any third party for compensation in respect of any acquisition of 40A Park St; 3. documents prepared by Mr Watts for the Australian Taxation Office ("ATO") identified the business address for UTSG as "office suite 24, 40a Park Street, Sydney, NSW, 2000"; 4. Mr Hill could find no evidence of occupation of 44 Market St by either LPAA or UTSG; 5. persons whose names relevantly appeared on documents created by or associated with LPAA, such as "Cara Adams", "Jessica Leung", "Jessica Cheung", "Jessica Chang" and "Michale Williams", could not be contacted; 6. documents annexed to the Goodyer report indicate that the address of LPAA was 31 Market St, Sydney. Again, Mr Hill could find no evidence of LPAA occupying this address; and 7. similarly, Mr Hill found no evidence that LPAA had ever actually occupied 40 Park St.
Mr Hill also investigated the address for a different but similarly named firm, "Law Partners" (a company belonging to a group of companies that Ms Singh indicated in documentation were operating from 40 Park St), whose registered office and principal place of business was recorded as 40 Park St. Mr Hill identified five businesses with "Law Partners" in their name in Sydney CBD, four of which were located at 2 Park St. Mr Hill found that there was no evidence that the relevant businesses at 2 Park St were related to either LPAA or the Law Partners purportedly registered at 40 Park St.
Mr Hill's investigations did, however, find a connection between UTSG and LPAA: 1. ASIC records establish that LPAA owned shares in UTSG; 2. LPAA owned shares in V Health Plus International Pty Limited; 3. three invoices were issued by LPAA for services provided to UTSG (produced in response to a subpoena issued to MS Tax) all dated 31 January 2017: one for $93,623 for 224 hours of accounting work, one for $61,864 for 148 hours of accounting work, and a final bill for $131,670 for 342 hours of accounting work; and 4. the Special Purpose Financial Report was purportedly prepared by LPAA/Tax Savvy for UTSG for submission to the VG to determine the compensation for UTSG's interest in 40 Park St.
Through Mr Hill's affidavits UTSG was put on notice of the very serious allegation by Sydney Metro that LPAA was a fictional entity having no independent existence or operation, however, evidence to the contrary was not sought to be adduced by the company.
The non-existence of LPAA is particularly significant because the spreadsheet of information that was provided by UTSG to Mr Fahad of MS Tax, which was in turn provided to Mr Mullins, and upon which he based the assumptions in the Mullins report, contained columns "P" and "Q" which state that the relevant line items were audited by "LPAA". This is elaborated upon in greater detail below.
Evidence to similar effect was given by Mr Hill about the existence of "Michale Williams", "Law Partners", "Jessica Leung", "Jessica Chang" and "Jessica Cheung" (T484:36-485:28, 488 and 500:18-501:39).
In cross-examination, Ms Singh's response to these allegations was to deliberately obfuscate, and in several instances, lie (T479:20-483:35. The reference to "Kara Adams" should be "Cara Adams"): Q. My first question is about the person you say is called Kara Adams, who had an office at 44 Market Street‑‑ A. Yes. Q. ‑‑between late 2015 and April 2017, you know that Mr Hill made some serious investigations to try to find any record of such person having premises at 44 Market Street and could find no sign of it? A. Well, only Kara Adams can answer that. Q. You can't explain why no sign can be found, no indication that Kara Adams actually exists can be discovered? A. I do not know if Kara Adams leased the premise there or she was operating under a company or otherwise. When I went up to level ‑ there's a reception area in 44 Market Street where ‑ and they call the person out when the visitor arrives. So, that's all ‑ that's how I met with Kara Adams. You don't go to the offices. There is an area within, I think it's level 22 or level 26 on 44 Market Street and they would call whoever the person is and I met Kara Adams on a few occasions on that level. I just don't recall it was level 22 or it was level 26, but I'm pretty certain it's one of those levels. Q. I will take you to court book volume 3. LANCASTER: It's tab CB 129, your Honour. HER HONOUR: Thank you. LANCASTER: It might be in volume 2, sorry. Q. So, Ms Singh, you have CB 129 open at page 1462? A. Yes. Q. It's an ASIC current historical extract for a company called Apac Center, A‑P‑A‑C C‑E‑N‑T‑E‑R of Excellence Pty Ltd. Do you see that? A. Yes. Q. It's extracted as at May 2018? A. Yes. Q. Is this one of your companies? A. It is not one of my companies, but it was the intended company that was going to take over from UTSG once the settlement of the 5G contract had completed. Q. Are you currently a director of Apac Center of Excellence? A. I was not aware of I was a director of Apac. Q. Really? A. I'm sorry, I was not aware of, that I was a director of‑‑ Q. I'm talking about right now. Right now are you a director of Apac Center of Excellence? A. I don't know. Q. You don't know? A. Is the company still registered? I don't know. I don't know. That's a fact. Q. How can that be the case that you don't know whether or not you're a director of a registered company? A. Mr Lancaster, I do not create any of these companies. Q. Didn't you? A. I do not know who created this company. I am aware of Apac Center of Excellence company which was to be the company ‑ and I think there are ‑ to my understanding there were two Apac Center of Excellence company of the same name, and one was to take over the ‑ the ‑ it was the company that was created for completion of 5G contract. That's what‑‑ Q. So, you know the purpose of the company, but you don't know whether or not you're a director of it; is that the position? A. That's correct. I don't know. There has been no activity, no anything on this entity, so, I don't know‑‑ Q. Do you say there's somebody out there signing you up as director of companies? A. I would like to see the ASIC record, if I have signed any of this documents‑‑ Q. Do you say there is somebody out there signing you up without your knowledge as the director of companies? A. Possibly. Q. Who would that be? A. I don't know. Q. Your account's doing it? A. Whoever created this account, this‑‑ Q. Is Dr Baig doing it? Who is doing it? A. I don't know. You got to ask Dr Baig that question. Q. Your evidence is utterly implausible, Ms Singh, about ASIC records and your corporate roles, isn't it? A. It may be on the face value of, it looks like I am doing this and that, but the fact is that I do not know and I do not create companies. I do not update ASIC records. As you accused me the other day, I went and quickly updated the director of UTSG when I called the accountant to update the ASIC record for Dr Baig. So, no, I'm sorry, I can't answer that question. On the face of it, yes, it looks like I'm a director, but I was not aware I am a director. Q. That's not truthful evidence, is it? A. That is the truthful evidence under oath. Q. You see at the foot of page 1462, there's a listing of the directors at the date of this extract which is 22 May 2018; do you see that? A. See. Q. The only director in May last year was you, wasn't it, at the top of page 1463? A. Yes, I can see it. Q. With the 40 Park Street address? A. Yes. Q. Then, the secretary of the company, appointed in September 2016, and current as at the date of 22 May 2018, according to the ASIC record, was Kara Adams. Do you see that? A. Yes. Q. This is the woman you say you only know through LPAA; is that right? A. That is correct. Q. She was the secretary of the company of which you are the sole director? A. In, according to the ASIC record, yes. Q. You see, there's a company that's the shareholder called Law Partners Pty Ltd, do you see that? A. Yes, I see that. Q. Is that your company? A. No, that is not my company at all. Q. You understand that's a company with a different ACN and a different name to Law Partners the accountants and the attorneys that I'm asking you about? A. I don't have a company called Law Partners ‑ Law Partners Pty Ltd ‑ sorry ‑ it says Law Partners Pty Ltd. I don't have a company by that name at all. Q. It gives its address at level 1 40 Park Street, Sydney, which was your business address, you tell us? A. The business address, but I am not aware of ‑ I have no company as such, Law Partners Pty Ltd which I am aware of. Q. Now, can you explain how this company has come to be the only current shareholder of, as at May 2018, of the company of which you are the sole director Apac Center of Excellence, can you explain that? A. I can't answer that. I can't answer that. Q. Is it just an amazing coincidence that it's ‑ the address of Law Partners Pty Ltd is 40 Park Street, Sydney? A. It is what it is on the face value of the document, but I have no negotiation with Law Partners Pty Ltd. I didn't even know that they exist. Q. Can you go further to page 1499 in this bundle? Have you got that page? A. I am getting there. Yes. Q. See that's an ASIC extract from Law Partners Pty Ltd? A. Yes. Q. Extracted at 30 May 2018? A. Yes. Q. You see at the top of page 1500, Simrane Singh is the sole director of the company as at that date, according to ASIC. Do you see that? A. It says Simrane Singh. It's got date of birth different. Vancouver, Canada. I was never born in Vancouver, Canberra. Q. You accept that's you, though, don't you? A. No, absolutely not. It's not me. Date of birth is not me. The ‑ no. I do not accept that's me. Q. The address given for that Simrane with an E ‑ S‑I‑M‑R‑A‑N‑E Singh is 40 Park Street, Sydney, your business address or UTSG's business address, so you say, at May 2018? A. 40 Park Street, Sydney, is the address of UTSG. My address is 48 Hay Street, Collaroy. No, that's not my company. Q. You see the shareholding of Law Partners Pty Ltd further down page 1500 is Simrane, S‑I‑M‑R‑A‑N‑E Singh of 40 Park Street, Sydney? A. I can see that, yes. Q. Law Partners Pty Ltd was a company you started and wholly own and control, isn't it? A. No. I don't. I don't even ‑ I was not aware of any such company. Q. In the same volume, if you go to CB 128. A. The page number? Q. Page number 1460. Have you got that? A. Yes, I have. Q. Do you see there's a document headed, "UTSG Corporate Structure"? A. Yes, I do. Q. And do you see in the top left‑hand quadrant of the page, looking at it, there's a reference to Law Partners Pty Ltd? A. That is correct. Q. So this UTSG Corporate Structure page is a document you attached to your affidavit sworn 29 June 2018 as tab 1 of exhibit SRS2 to that affidavit? A. That is correct. And this corporate structure was in the context of providing ‑ I think responding to the notice to produce, which was prepared by Ms Claire(?). I think she's a barrister, Claire Palmer. So the information was collected by her, and as she found on the ASIC record, that's what was provided. Q. So you're trying to give an explanation for why Law Partner Pty Ltd appears on the document you put forward as the UTSG corporate structure. Is that what you're trying to do? A. Mr Lancaster, I'm saying that this is an affidavit that was actually ‑ this is an attachment to an affidavit that was prepared on 29 June 2018, and this particular structure was constructed by Ms Claire Palmer, and as I have repeatedly said, that I did not read the entire details of the attachments and content of my affidavit of 29 June 2018. This I have found as well in the attachment ‑ one of the attachments. So what I am saying is this is what has been compiled in accordance to probably the ASIC records that exist, but it's not a confirmation that I agree entirely to this.
The following exchange was equally replete with untruths uttered by Ms Singh (T495:11-498:40. The reference to "Ganehir Watts" should be to "Gambhir Watts"): Q. Back in 15 October last year, when I asked you questions, you remember that I asked you about Kara Adams and Jessica Chung and whether or not you had any contact details for them? Do you remember that? A. I don't recall. Q. You don't remember? A. No. Not that far, I'm sorry. Q. You know it's been a long‑standing issue in the case whether these people and entities exist or not, don't you? A. Mr Lancaster, I have always known that ‑ I understand what I understand things to be. I cannot read your mind in terms of what information you're seeking for ‑ if someone made a clarification that their identity was an issue, then perhaps we could have taken that cause of action to provide the identity of this issue. I was simply asked to provide contacts of these persons. The current contacts are with 5G. I do not have the contacts. I have explained earlier that my last contact with any of these persons was in April 2017, and I have not been in contact with most of them, or the majority of the personnel at ‑ working with UTSG since that time. Q. Ms Singh, you don't need to guess at what's in my mind at all, because even back in October last year I suggested to you that Jessica Chung was a person who had invented in documents that you had produced. Do you remember that? A. I do recall that, but Jessica Chang(as said) is a person, and I did explain to you that Jessica Chang was the person who actually spoke to Brett Goodyear who did the forensic accounting in December of 2016. Q. Yes. You've said that before ‑ numerous times, but you haven't brought forward a single document to prove it, have you? A. I have said that I have spoken to Jessica Chang, but I have not ‑ or Leung ‑ but I don't know actually her surname properly, but I have spoken to Jessica from TaxSavvy or LPAA, but that's all I can‑‑ Q. When did you speak to Jessica Chang? A. I spoke to Jessica Chang when she ‑ I believe it was ‑ Brett Goodyear was seeking to conduct his investigations, and he wanted her to explain the accounting that they had prepared for that period because UTSG did not have the financials ready at that point in time. Q. When did you speak to her? A. I would have spoken to her ‑ I don't exactly recall, but it would have been between December ‑ it would have been either December ‑ between 2016 and the second report of Mr Brett Goodyear in March or April of 2016. Q. Can I show you a transcript from 15 October of last year. It's court book 213A according to Mr Eastman. Have you got page 120 of the transcript of 15 October? A. Yes. Q. Do you see at line 23 I've said: "Q. Have you ever met Kara Adams in person? A. No." A. I must have misunderstood your question. Q. Because you recognise it's directly inconsistent with what you say is your sworn evidence today that you had met her in person? A. No. It is ‑ I have met Ms Kara Adams. I have met Ms Kara Adams on a number of occasions and not just alone. I have met with Dr Baig and a few other persons Ms Kara Adams. So if that is what I had said, I don't know in what context it was, but I have met Kara Adams, I have not met Jessica Cheung. Q. The context is that you were not telling the truth on your version now in October last year when you gave evidence to the Court? A. I am telling the truth. Q. The truth is you've never met Kara Adams, because she doesn't exist, that's the real truth, isn't it? A. The real truth is that there is a person called Kara Adams and I have met her on several times, not on personally, but with a number of individuals. Q. You see at line 29 I asked you last October, "Have you ever met Jessica Chung in person?" You said, "No." I said, "Have you ever spoken to her on the phone?" You said, "No."? A. I have never met Jessica Chung. I don't know‑‑ Q. A few minutes ago you said you'd spoken to her on the phone? A. Let me finish, Mr‑‑ Q. No, you can answer my question, Ms Singh? A. I have never met Jessica Chung. I believe her name is Jessica Leung, not Chung. I have spoken to her once in trying to coordinate her conversation with Mr Brett Goodyear to explain the financials that they were preparing because UTSG did not have any financials at that point in time‑‑ HER HONOUR Q. That's fine. You've answered the question? A. So, yes, I have spoken to Jessica Leung on one or maybe two occasions‑‑ LANCASTER Q. Ms Singh, a few minutes ago you said that you had spoken to Jessica Chung on the phone, didn't you? A. Jessica Leung‑‑ Q. A few minutes ago‑‑ A. ‑‑Jessica Chung‑‑ Q. You said you had spoken to her on the phone a few minutes ago, didn't you? A. Yes, I had spoken to someone by the name of ‑ her name is Jessica Leung, L ‑ it starts off with L, not with Chung. Q. This amuses you, telling a series of lies to the Land & Environment Court? A. It is ‑ I am an oath, Mr ‑ not Chung ‑ Mr Eastman, it's Mr Lancaster. I'm on oath and the series of names that has come up, I'm getting myself confused. I know I spoke to Jessica Leung, not Jessica Chung. There is a number of names been thrown. I know Kara Adams. I've confirmed that. Now, I have spoken to Jessica Leung, who actually prepared the accounts for Brett Goodyear, Mr Brett Goodyear and Mr Brett Goodyear is ‑ has spoken to her, I guess asking all the questions, but I don't know Jessica Chung. Q. Can you go forward in that transcript to page 123, please? You see at line 7, after I had asked you a question about Law Partners Accountants & Attorneys, you said last October, "I've clarified earlier that Law Partners was referred to us by Mr Ganehir Watts and Jessica Leung is the person we dealt with. I've never met them. I've never seen them. I do understand that Jessica has spoken to Brett Goodyear." That's another version of your lies, isn't it? A. Mr Lancaster, you are taking things out of contest. I said that I had spoken to Jessica Leung. I am not aware of Jessica Chung. It may be the same person and so on, but I have taken this, after that cross‑examination, I did ask Mr Ganehir Watts and Mr Ganehir Watts has said that he was not aware of ‑ he has ‑ it was Jessica Leung. It was not Jessica Chung. So, I have spoken steps to clarify that and I have spoken to Jessica Leung to facilitate her conversations directly with Mr Brett Goodyear. Q. Earlier today when I asked you about Law Partners Accountants & Attorneys you said that Mr Rick Mitry introduced that to you, didn't you? A. Mr Rick Mitry introduced us, made introduction to Kara Adams. Q. You said last October, "Law Partners was referred to us by Mr Ganehir Watts", didn't you? A. I may have misunderstood that question, so I ‑ I can't answer for that, but‑‑ Q. The real position is, Ms Singh, you can't keep track of the numerous lies that you've told this Court. You can't keep them consistent, one with the other, can you? A. Mr Lancaster, every time I am here, I have provided to the best of my knowledge and on oath, information and responded to questions in the most truthful and honest manner that I can possibly do. Q. Ms Singh, that's a laughable suggestion, I suggest to you? A. That is your impression and I reject it. Q. Now, if you go back to Mr Hill's affidavit at page 6540 ‑ have you got that? A. Yes. Q. Do you see at paragraph 82, he deals with ‑ it's the first of a series of paragraphs, 82 to 91, recording his searches for Kara Adams. Do you see that? A. Yes. Q. Do you accept that there is no person by the name of Kara Adams who is either a lawyer, a CPA or employed or contracted by LPAA or TaxSavvy? A. I don't accept that. Q. You've had this affidavit since February 2019 and you haven't brought forward any material to the contrary of what Mr Hill says, have you? A. Mr Hills has been in contact with 5G LLC‑‑ Q. Don't worry about what Mr Hill was done. He's sworn what he has done. I'm asking you what you haven't done? A. I did not have a need to provide any evidence of ‑ in response to this because there's no need for me. Q. It's because you can't provide evidence in response? A. That's your opinion. Q. No, I'm suggesting to you‑‑ A. No, I don't agree, no. Q. ‑‑you've had months to be able to bring evidence forward and you haven't brought anything forward? A. No, I have provided all the evidence I need to in this material for the matter of compensation. This case is not about ‑ about me and discrediting my identity and my character. So, I don't feel it is a necessary thing for me to respond to and I wouldn't waste my time on any of these things.
As to the fact that the ASIC searches revealed that LPAA owned shares in UTSG, Ms Singh proffered the explanation that the ASIC records were incorrect (T485:41-489:26): Q. This is an ASIC record of a change to company details of UTSG Pty Ltd, the applicant company. Do you see that? A. Yes. Q. And the original, it records, was signed by Dr Baig in his capacity as director on 19 December 2015. Do you see that on page 8709? A. Yes, I can see. Yes. Q. And the change to the register of members is recorded over on page 8080. Have you got that? A. Yes. Q. And can you see the bottom‑third of the page records that Law Partners Accountants and Attorneys Pty Ltd became a shareholder of UTSG. A. Yes. Q. And you accept that that occurred? A. No. I do not accept that at all. Q. You say this ASIC entry is wrong, do you? A. Yes. And if you may ask ‑ seek clarification, we did raise it with ASIC. ASIC said we do not rely on ASIC record. You need to rely on your company register, which is separate to an ASIC record, so‑‑ Q. Well‑‑ A. ‑‑this was ‑ these issues have been dealt with in the past and corrected, but, yes, I'm aware of that and we have corrected it. Q. You have brought forward no documentary evidence which shows that from ASIC's perspective these issues, as you call them, have been resolved, have you? A. We have resolved it by providing you the updated UTSG company change details, and you will see that the company change details, which you have on your own records, are what it should be. She's are records that are ‑ that were corrected when it was discovered. So the current ASIC record will show me as the director since about ‑ a few ‑ this is last year, the sole director, and then Dr Baig appointed in the last few days as a director. So those are the current directors, and I do not update the ASIC record. It's all done by the ‑ there is document with Dr Baig right there which confirms that I do not make changes to the ASIC record. It's the accountant who makes the changes to the ASIC record‑‑ Q. Ms Singh‑‑ A. So to answer your question, I don't have any documents to prove that we have updated the ASIC record. Yes, we have. Q. Ms Singh, do you maintain your sworn evidence that you affirmed this morning in the witness box you have nothing to do with LPAA? A. I have nothing to do with LPAA other than their connection through 5G LLC. Q. And you maintain that evidence in the face of an ASIC record that shows that LPAA became a member, a shareholder, of UTSG in November 2015. Is that your evidence? A. In ‑ that's what you have shown me in the ASIC record, which is not correct. Q. And your evidence that you have nothing to do with LPAA is false evidence, isn't it? A. That's not true. Q. If you could go over the page to the next tab, page 8083, which is tab CB 262. A. Yes. Q. It's an ASIC extract for V Health Plus International Pty Ltd extracted as at 23 April 2018. Do you have that? A. Yes. Q. V Health Plus International is your company, is it not? A. It is a company that is jointly owned between myself and Dr Baig. Q. And on the first page, page 8083, the registered office of the company is 40 Park Street, Sydney, and has been since December 2014? A. It was 40 Park Street, and I believe ‑ yes, it was the address. Q. As at April 2018, if you go over the page to 8084, the two directors were Dr Baig and yourself? A. Yes. Q. You accept the second entry in the directors column is you, even though the date of birth records that you were born in Singapore? A. Yes, Singapore, Singapore, it says. Q. But you accept that that's you? A. I accept that is me, yes. The date of birth is my date of birth. Q. Then in the previous directors‑‑ A. Yes. Q. ‑‑we've got another series of variations of your name since 2014 up to 2016, don't we? A. Yes, I can see that. Then, again, I did not create this account ‑ this company, so, yes, I can see on the face of the ASIC records, it is. Q. Well, you did create this company, didn't you? A. No, I didn't. Q. When the company was first registered on 15 December 2014, you were a director as the record at the bottom of 8084 to 8085 shows? A. I was a director, but I was not creating the companies. I would not have a clue of how to register a company. Q. Go back to 8084, you see that there are various entries and I want to invite you to agree that they are all aliases or names that you use? A. Absolutely reject that. Q. Simrane Singh, that's a reference to you, as the first of the previous directors named? A. That is ‑ Simrane is not Simran. Q. But you accept that's a reference to you? A. It is not my date of birth. Q. I know that, but you accept it's an erroneous reference to you, don't you? A. It maybe, maybe not. I can't answer that question. Q. The next entry, Singh Roselyne, born 29 January 1976 in Sydney South, that's a reference to you, isn't it? A. It may be. I cannot answer that question. It's not my date of birth. Q. Michale Williams of 40 Park Street, Sydney, that's intended to be a reference to you, isn't it? A. No. Q. It's a very similar name to Michael Williams, isn't it? A. It maybe, but that's not me. It, again, has got a different date of birth and different details to any of the ones you have referred to earlier. Q. Have you ever met Michale Williams? A. I have met Michale Williams ‑ no. Q. She is another invention of yours, isn't she? A. No. Q. Then you accept‑‑ A. Hold on a second. Just let just think. Michale Williams. No, I have not met Michale Williams. Q. Then over on 8085, there's the then current secretary, that is, in May 2018 ‑ in April 2018 and previous secretaries are listed? A. Yes. Q. Do you accept all of those entries are references to you, although some have got different details to others? A. The only entries I accept with my date of birth. The other entries, I do not accept. Q. They are some other Roselyne Singh, are they? A. Look, I can't answer that. I did not create this. I don't know how to answer those questions. No. Q. So, if you go to the shareholding at 8087 to 8088, you see the current shareholding, that is at April 2018 was the KISS Foundation and V Plus Corporations Pty Ltd. They're both companies that you control, aren't they? A. The KISS Foundation is controlled by Dr Baig and I. Q. What about V Plus Corporations Pty Ltd? A. V Plus Corporations is controlled by myself and my son, Brendon Hollins. Q. Then, you see in the ceased/former shareholders, the second entry is Law Partners Accountants & Attorneys? A. I can see that. Q. With an address of 40A Park Street? A. Yes. Q. At one point, Law Partners Accountants & Attorneys Pty Ltd held 100 of the 200 issued shares in V Health Plus International, didn't it? A. I believe there was at a point in time, there was some, during the sale agreement period, there were ‑ because V Health Fund ‑ V Health International holds the trademark of V Health Plus, so there may have been some ‑ I don't have a memory going ‑ I can't recall, but there were some discussions in terms of the companies that were going to be sharing that ‑ that was as part of the BSA, business sale agreement. Q. Whatever else this entry shows, can I suggest to you that it does show that your evidence that you had nothing to do with LPAA is not correct because that company held 100 shares in V Health Plus International of which you have always been a director? A. I have no idea how this has come about. I do know Kara Adams from Law Partners Accountants & Attorneys. Other than that, I don't know how. With ‑ with that, I also know that Peter Scott was one of the persons who was managing the ASIC information and working with Kara Adams at that point in time as well. So, who was, at one point in time the director of UTSG. So, if there changes made, I'm not aware of it and I am certainly not aware of any changes in the company resolution that reflects those.
As can be seen from the extracts above, when confronted with objective documentary evidence that contradicted her fabricated narrative, Ms Singh would often claim that the contents of the document, even ASIC records, were wrong.
In relation to the invoices raised by LPAA for accounting services rendered by it to UTSG, in particular invoices for auditing services, Ms Singh, while maintaining that she had nothing to do with LPAA, claimed that that she was aware of the invoices and that they were never paid, contradicting evidence that she had given in October 2018 (T502:11-505:01): Q. Now, the first of those ‑ I'm sorry, they're all dated 31 January 2017, aren't they? A. Yes. Q. They're all on some sort of letterhead, or print, in the top left of the first page that refers to LPAA Partners, Advisors, Accountants, Auditors. Do you see that? A. That's right. Q. And they're said to be statement of account for V Health Plus Foundation Pty Ltd trading at UTSG Pty Ltd. Do you see that? A. Yes. Q. And addressed to the attention of Monique Jones‑‑ A. Yes. Q. ‑‑at 40 Park Street? A. That is correct. Q. Now, these invoices purport to record work and invoice charges for tax audit and review work, don't they? A. Yes. Q. And if you see on the second page of each of the invoices, the asserted agreed professional costs refers to Kara Adams charging out at $650 an hour and Jessica Cheung charging out at $650 an hour. A. That is correct, and I also see page ‑ I also see number 12, consultation follow‑ups with Spinks Eagle Lawyers, Mitry Lawyers and Compass Lawyers. Is that the one you're looking at? So there's one invoice ‑ 15535. Number 12 says, "Consultation and follow‑up with Spinks Lawyers. That's a one? HER HONOUR: Mr Lancaster didn't ask you about that, Ms Singh. Again, please just listen to Mr Lancaster's question and answer only that question. I am conscious of the time. I do wish to finish your evidence today. Yes, Mr Lancaster. LANCASTER: Thank you, your Honour. Q. So you've seen these invoices before, do you say? A. I have seen these invoices, but these are no (as said) invoices of UTSG. Never paid by UTSG, and I don't think we ever paid it. Dr Baig would be able to confirm that. Q. I'm sorry, what did you say? They're invoices to UTSG, but UTSG had not paid them? A. No. UTSG has never paid LPA Partners or TaxSavvy or anyone in regard to that. It has never paid a single invoice of Law Partners or any of those. That is to the best of my recollection. Q. When did you see these invoices then? A. There are a number of invoices. I think it is between the period ‑ when 5G ‑ all of those were happening, and I think it was ‑ but there are a number of invoices I have seen, but I have not personally authorised any invoices or aware that LPAA Partners or TaxSavvy have been paid by UTSG. Q. My first question at the beginning of this whole topic about LPAA was to remind you of what you said and what you've sworn to be true that you have nothing to do with LPAA. Do you remember that? A. That is correct. But this is an invoice. It does not mean that it has association. It says clearly the Breast Foundation trading as UTSG, and attention to Monique Jones. Q. So you knew about these invoices. They're three separate invoices which allege to be dozens of hours of work for UTSG financial records. You say you knew about them on the one hand, but you can swear to be true to her Honour that you have nothing to do with LPAA? A. That is true. Q. Well, how is that possibly consistent? A. Because, Mr Lancaster, I do not deal with accounts, number 1. And I do not process invoices. I do not ‑ any of these invoices would have been ‑ I'm reading through these invoices. There is a mention of‑‑ Q. Excuse me, I'm not asking you to move through the invoices. A. I know you don't want to, but in the context of the question you are asking me, Mr Lancaster, I think it is ‑ you shouldn't be asking me questions out of context. If you're asking me questions‑‑ Q. The question I asked you, Ms Singh‑‑ HER HONOUR: No. No. Hang on a second. Please don't talk over the top of each other. Ms Singh, the question was a fairly ‑ I'll say, again, if you don't understand the question, please say so. I'll get Mr Lancaster to ask the question again. Please answer it as briefly as you can. LANCASTER Q. Do you accept that there is an obvious inconsistency between your evidence that you don't know anything about, had nothing to do with LPAA on the one hand, and on the other hand, your knowledge, so you say, of these LPAA invoices date January 2017 for work done in 2016 and 2017 on UTSG's accounts? A. My answer is ‑ what is the question you are asking me to respond to? Q. You know that I'm asking you about the inconsistency within your evidence, don't you? A. That is your observation. I disagree. Q. Do you accept that your accounts of LPAA are inconsistent? A. I don't have an account with LPAA. Q. Are you being intentionally‑‑ A. I'm not an accountant. I don't work in the account area, so how am I supposed to answer your questions? This is beyond my visibility. I do not. Q. In October last year, you've still got the transcript of your examination last year? A. Yes . Q. On page 119, and to give you context, let's go back to page 118. A. Yes, 118. Q. At about line 34 I was asking you about these invoices issued by LPAA Partners allegedly. Do you see that? A. Yes. There was an invoice to ‑ I don't know if this was the same invoice. There was something around the ‑ the $63,000 invoice that we were speaking about. It wasn't ‑ for V Health Foundation. Q. And then over at page‑‑ A. And I said that we did not pay. Q. Excuse me, let me ask my question. Over at page 119 I asked: "Q. To your recollection, what did UTSG pay from the invoice? A. I think UTSG paid about $63,000." A. Yes. Q. So that was your sworn evidence last October, and your sworn evidence today is UTSG didn't pay anything‑‑ A. I am saying I did not ‑ this is V Health Plus Foundation invoices. I don't know what invoice was showed(as said) to me then. Q. It's the same invoice as the invoice on page 15534, Ms Singh. A. I have ‑ I don't know. I don't think UTSG has paid anything. Q. So why did you say last October UTSG had paid $63,000? A. I probably was confused what was being asked. Q. Was that, again, a case that what really confused you was trying to keep all your lies consistent with the other? A. That's not true, and your question is insulting.
I do not accept Ms Singh's explanation that any inconsistency in her evidence was a result of confusion. I do, however, accept the submission of Sydney Metro that if LPAA was a legitimate entity that had performed accounting work for UTSG, that is, had rendered invoices for their services but had received no payment, that a dispute over the non-payment of fees would have materialised, or at the very least, that some evidence or explanation as to why the fees had been waived would have been forthcoming. I therefore do not accept that any such accounting work was in fact performed by LPAA.
Ms Singh later denied that LPAA or TaxSavvy had provided any accounting services to UTSG, notwithstanding the existence of the invoices. Rather, she asserted that the work performed was on behalf of 5G. According to Ms Singh, it was only MS Tax (Mr Watts's accounting firm) that had prepared financial documents for the purpose of UTSG's compensation claim. However, this contention cannot be reconciled with the fact that Ms Singh had provided spreadsheets to Mr Mullins which were marked as "audited by LPAA" (and which were relied upon by him), or the fact that the Special Purpose Financial Report prepared for UTSG (that was appended to the Goodyer report specifically prepared for the purpose of UTSG's compulsory acquisition compensation claim and submitted to the VG) was "compiled in accordance with UTSG Pty Ltd Financial Audited Report dated 7 March 2017, by LPAA & Co and TaxSavvy Accountants." When this conflict was put to her, she responded as follows (T505:18-508:40): Q. Each of those three invoices under the supposed letterhead of LPAA are invoices that either you manufactured, or caused to be manufactured, to support the accounts in this claim for compensation? A. I absolutely reject it, and I do not believe that these invoices make up the invoices for the compensation. Q. And you'll see at the foot of the invoice on page 15537 ‑ have you got 15537? A. Yes, I have. Q. It is a contact for Jessica Cheung with the email Jessica@taxsavy.com.au. Do you see that? A. Yes. Q. So when you were preparing this false invoice, you misspelt that email address, didn't you? A. No. It's interesting you bring that up because‑‑ Q. Do you accept it or not? A. I see what you're saying, but it is very interesting that you bring that up, because I have ‑ Mr Tony Hill also has done a search on who this TaxSavvy.com belongs to. It belongs to Jessica Cheung, and don't you have to provide your identity when you're creating a domain? Q. I'll also show you a document that's behind TB ‑ in volume 10 of the tender bundle, behind TB 362. Do you have page 15592 there? A. I do. Q. It's an email from Mr David Mullins to you. A. Yes. Q. And copied to various other people, including your son and Mr Fahad. Do you see that? A. I would appreciate you call him Brendon Hollins. Q. In the text of the email, Mr Mullins says, "Hi, Simran", and about three lines down, he says, "As you'll see there are substantial various between the two", and he's working to ‑ he's referring to two versions of the financial statements‑‑ A. Yes. Q. ‑‑you understood that? A. Yes, I recall that. I recall that. Q. He attached some documents called 40 Park Street, financial statement summary? A. Yes. Q. If you go behind TB 3633, there's a copy of the attachment. So, have a look at that, please? A. Yes. Q. At page 15601, have a look at that for the financial year 2016? A. 601, yes. Q. You see that's a spreadsheet with the entry in line 1, "FY 2016, gross billings, revenue report, audited by LPAA Auditors", do you see that? A. Yes. Yes, that is a report you showed me previously as well. Q. These figures haven't been audited by LPAA, have they? A. It was audited by LPA ‑ LPAA under the instructions of 5G. I had nothing to do with LPAA or TaxSavvy. It's information provided in terms of keeping the transparency of information and that's what we do. Q. On page 15601 at line 35, one of the alleged expenses for financial year 2016 is a total amount of $489,000 which is said to have been validated to invoices and then in column Q, there's a reference to LPAA invoices. Do you see that? A. I see that and those are audited, so these are financials prepared by LPAA, not on behalf of UTSG, but on behalf of 5G. The only financials that has been prepared by UTSG is the financials that is prepared by MS Tax. Q. What's happened is, in these financial records with which Mr Mullins was dealing, a very substantial amount has been recorded as an expense of the company, UTSG, by reference to these alleged LPAA invoices that do not, in truth, reflect any work done on the all. What do you say about that? A. You would have to ask the accountants that question. I don't ‑ I can't answer that question. Q. Annexed J tender bundle volume 2 at TB 10 ‑ your Honour, could I prevail upon your Honour to pass that copy to the witness? I just don't have an up marked copy. HER HONOUR: That's fine. LANCASTER Q. So, it's TB 10 which is a copy of the Valuer‑General's valuation report and see at page 10945, Ms Singh, that Mr Goodyear's report is annexed to the Valuer‑General's report? A. I see that. Q. Do you see in page 10963, appendix F to Mr Goodyear's report, is deals with the 2015 and 2016 financial statements? A. That is correct. Q. That's a series of pages that are headed, "TaxSavvy", T‑A‑X"‑‑ A. Yes. Q. ‑‑no space, but capital S‑A‑V‑V‑Y Solutions & Co? A. I have seen that, yes. Q. That's said to be a special purpose financial report prepared for UTSG Pty Ltd, do you see that? A. It says so, yes. Q. You've spent time in the witness box today denying that TaxSavvy had anything to do with UTSG? A. And that is absolute fact. Q. On your evidence, it can't be the case that TaxSavvy Solutions & Co prepared special purpose financial reports for UTSG? A. TaxSavvy Solutions, LPAA never provided any accounting financial transactions for UTSG. The only accounting provided, or prepared by ‑ for UTSG for the purpose of this compensation is MS Tax. Q. At the foot of page 10963, there's a reference to LPA Accountants prepared by Jessica Leung, CPA, approved by Kara Adams, CPA, do you see that? A. It says that, yes, very ‑ yeah. Q. You accept that didn't happen either? A. I can't answer that for you, Mr Lancaster, because I don't know. Q. Ms Singh, what happens is ‑ what happened is that you provided the material for this appendix F to Mr Goodyear showing that it contained fabricated information for the purpose of Mr Goodyear making a submission on your behalf to the Valuer‑General, which was then relied on by the Valuer‑General. That's what happened, isn't it? A. Mr Lancaster, that is absolute nonsense. No. Q. How did Mr Goodyear get appendix F, this TaxSavvy Solutions special purpose financial report, if you didn't get it to him? A. I did not coordinate with Mr Goodyear. It was Rick Mitry ‑ Richard Mitry and Brendon Hollins. Q. You have attempted to and succeeded in perpetrating a fraud on the Valuer‑General by providing false‑‑ A. I reject that entirely‑‑ Q. ‑‑false accounts‑‑ A. I reject that entirely‑‑ HER HONOUR Q. No, please, Ms Singh, do not yell‑‑ A. That is allegation‑‑ Q. Ms Singh, please stop. We will have no yelling in this courtroom whatsoever. You do need Mr Lancaster finish his question. Again, he is obliged to put this question to you. He must put this question to you. You can answer it, but he must put it. Please do not yell. HER HONOUR: Yes. LANCASTER Q. TaxSavvy Solutions & Co is an entity that does not exist that you applied to financial records of UTSG to give them a greater plausibility; that's right, isn't it? A. Absolutely nonsense from you. Q. Then, you provided these TaxSavvy Solutions special purpose financial report to Mr Goodyear for the purpose of him making a claim for compensation to the Valuer‑General on UTSG's behalf, didn't you? A. I totally reject your assertion. Q. You did that, knowing that the financial records under the heading TaxSavvy Solutions & Co were not correct? A. You are absolutely wrong. Q. You succeeded in your fraud because the Valuer‑General relied on that information? A. Absolutely wrong. You have no idea who provided the information. You are making serious allegations against my character and that's the only case you have, Mr ‑ whatever your name is.
In my opinion, Ms Singh's assertions, contentions, and claims cannot be believed. Rather, the overwhelming inference to be drawn from the evidence is that LPAA, and the various ostensibly associated entities and persons referred to above, are inventions. No independent accounting work was performed by LPAA for UTSG (or for anyone else for that matter). Rather, LPAA was conveniently created to be used as a vehicle for the relevant purpose of manufacturing false information concerning the financial position of UTSG that was provided by UTSG (which includes Ms Singh as a director) to Mr Goodyer and Mr Mullins for the purpose of, as was put fairly to Ms Singh, perpetrating a fraud on the VG and, as the evidence below reveals, in due course deliberately misleading the Court.
During its closing address UTSG submitted that LPAA existed because it possessed a company name and an ABN. Dr Baig claimed that LPAA was located at 31 Market St, Rockdale (T1360:40-44; 1357:16 and 1357:44. Any reference to "Margret St" appears to be an error). No evidence was put before the Court in support of this assertion. It is inconsistent with the evidence of Mr Hill, ASIC records, and the fact that the company is now deregistered. The fact is that LPAA did not carry out business from any physical location and the named individuals said to be involved in the firm do not exist.
Dr Baig additionally submitted in UTSG's final oral address that Jessica Leung was located at 31 Market St, Sydney (T1357:43-45). Again, this was a new assertion with no evidence to support it. It is rejected.
Just as LPAA was a ruse perpetrated by Ms Singh, so too was the existence of TaxSavvy.
Similar to LPAA, Mr Hill diligently investigated TaxSavvy, the accounting firm that was stated in the Watts report to have been engaged by LPAA "to carry out an independent review and due diligence of the V Health Plus" (a trading name of UTSG). There were also several references to financial documents prepared for UTSG by TaxSavvy, including "audited reports".
Despite his extensive search no entity was identified with that (or a similar) name which had any association with or knowledge of UTSG.
Similar to LPAA, the sham nature of TaxSavvy is particularly problematic because: 1. Ms Singh provided Mr Goodyer with financial information, including the 2015 and 2016 financial statements, purportedly prepared by TaxSavvy which was appended to, and which it may be presumed was relied upon by him in the preparation of his report, a report that was ultimately provided to the VG by UTSG. While the probable fraud perpetuated on the VG is strictly not an issue that the Court is required to determine in these proceedings, suffice it to say that such conduct does not reflect favourably on the credit of either Ms Singh or UTSG; 2. it appears from the Watts report that he also relied upon financial material prepared by TaxSavvy in respect of UTSG's financial position; and 3. Mr Mullins also relied upon financial material purportedly prepared by TaxSavvy.
As the transcript quoted above at length indicates, these serious allegations were put to Ms Singh, however, as with LPAA, her denials confirmed to the Court that just as LPAA was employed as a device to create false records for the purpose of UTSG's compensation claim, so too was TaxSavvy.

Mr Peter Scott Does Not Exist

Ms Singh went so far as to invent directors of UTSG. For example, Mr Peter Scott was mentioned in a variety of documents as a director of UTSG, an employee and director of various V Health Plus entities (for example, V Health Plus Foundation), as well as a an LPAA employee (T400:04-401:06 and 412:41-48). Mr Scott charged UTSG for services rendered in respect of the relocation of UTSG occasioned by the acquisition (his name appears on monthly time sheets).
Nevertheless, despite Mr Scott allegedly being a director of UTSG and having a close relationship with entities associated with the company, Ms Singh was unsure whether his name was "Peter Scott" or "Scott Peter" (T400:30-401:06): Q. You don't have Mr Peter Watts ‑ I'm sorry ‑ Mr Peter Scott's address? A. Scott Peter ‑ I think his name was Scott Peter or Peter Scott. He was one of the directors of UTSG and I believe very firmly if I look, if ‑ there is somewhere, there are four signatures that includes myself, Dr Baig, Peter Scott and ‑ or Scott Peter and there is another person Snighah, something like that and they are ‑ those are two persons from 5G. So, if you are asking me, I ‑ 2015, I don't know, to answer your question, no, I don't know, if I signed it or did Dr Baig sign it or did Peter sign it or did ‑ I can't remember his name. Q. When did you last see or talk to Peter Scott or Scott Peter? A. Just as we were closing. Q. So, when was that? A. That was in April 2017. Q. Have you been in touch with him since? A. There's no way that I can. Q. When you referred to his name being either Peter Scott or Scott Peter, you were feigning uncertainty, because you know that the documents that you've created use each variation of his name, Peter Scott and Scott Peter; that's right, isn't it? A. That's absolutely incorrect. Q. Peter Scott or Scott Peter is another fictional emanation of you, Ms Singh, isn't he? A. That's your position, not my position.
That Mr Scott was both a director of UTSG (his name appears in this capacity on documents, together with his signature) and "from 5G" to whom part of UTSG's business was to be sold is highly improbable.
I therefore accept the submission of Sydney Metro that "Peter Scott" is not a real person. Rather he is, as Sydney Metro described, "a fictional creation of Ms Singh to advance her interests when necessary and to allow for her to create corporate entities which she controls, albeit with fictional directors to give that entity some apparent independence."
The specific significance of the creation of Mr Scott is explained immediately below.

The Altered "17 Boxes of Documents" Email

Ms Singh fabricated email evidence. That is, there was evidence before the Court of two materially different versions of the same email chain: one was produced on subpoena by UTSG's accountant, Taxation Guru, (Mr Watts's accountancy firm); the other was attached to Ms Singh's June 2018 affidavit.
Ms Singh's version of the email has been altered. It purports to record the alleged delivery of "17 boxes" of audited accounting records to Mr Watts on 7 March 2016. A comparison between the two sets of emails reveals the following: 1. that many of the references to "V Health Plus International" were deleted and instead replaced with "UTSG Pty Ltd"; 2. that the email address "ras@vhealthplus.com.au" was deleted and replaced with "roselyn@vhealthplus.com.au"; 3. that the deletions caused the email chain which had been concerned with the lodgement of returns for V Health Plus Foundation and V Health Plus International to state that, "all" returns for UTSG from 2013 to 2015 had been lodged and that bank details for the company had been updated for ATO purposes. Moreover, the 2013, 2014 and 2015 BAS had been completed for UTSG; 4. critically, that the words "17 boxes containing all UTSG invoices and Bank Statements and other practice documents from 2012 to 2016 were delivered personally by LPAA office with Peter Scott to your office as instructed… These are our only hardcopy record we have and I am a bit nervous however trust in your care for safe storage - would you please keep in safe keep for UTSG in case we require any for future reference" had been added; 5. critically, that the words "17 boxes of the audited accounting records for safe storage was accepted by Mr Gambir Watts at 12.30pm today… Please call if you need to discuss. Regards Jessica Leung" had been added; and 6. that on 10 March 2016 in an email from Mr Watts, the words "All records are entered on MYOB for accounting purposes" and "of tonnes of invoices/bank statements" were added.
Given the paucity of material produced in answer to the NTP, it is readily apparent that the email was self-servingly altered to provide an explanation as to why only limited documents were produced by UTSG in answer to it.
When confronted with the email evidence Ms Singh could offer no credible explanation for the discrepancies between the two versions of the email chain and denied ever having referred to the existence of the "17 boxes" (T509:47-516:05): Q. That's an email chain ‑ that email is dated March 7, 2016 at 1.29pm. Have you got that? A. Yes. Q. It's from, according to the page, Jessica Leung at LPAA, isn't it? A. It is signed by Jessica Leung and it's from LPAA contact at lawpartnerssydney.com.au. Q. It's to roselyne@vhealthplus.com.au? A. Yes, it is. Q. Which is an email address that you used? A. I am not ‑ I didn't know there was a V ‑ roselyne@vhealthplus.com.au. Q. Well, last October you said to me and to the Court that that was an email address that you did use? A. I use rs@vhealthplus.com.au. Q. Well, I'll show you again. Look at the October transcript. It's supplementary court book volume 1 at 213A, your Honour. A. What is the page? Q. Please look at the top of page 128. You'll see at line 7 I ask you in the email chain that you've produced, because I asked you about this very email. At about the middle of the page: Q. There's an email from Roselyne@vhealthplus.com.au. That's you, is it? A. Mm. Q. To Mr Watts; is that right? A. Yes." Do you see that? A. I must have got confused. It's Roselyne. I don't know, but I have not used any email address as Roselyne with an "e" or Roselyn without an "e" from vhealthplus.com.au. I didn't even know that email exists. Q. Well, Ms Singh, what's happened is the reason that you're relying on this email chain last October and in your June affidavit from 2018 is that you were relying on the proposition that's apparent in the content of this email of 7 March 2016 that there were 17 boxes of audited accounting records that had been sent for safe storage to Mr Watts. Do you see that? A. Yes. I was of the understanding at that time, but Mr Watts has confirmed that it is not ‑ he has never received the 17 boxes, so I was confused. Q. What I'm suggesting to you is that there's no confusion at all. What occurred is that the lie you wanted to tell last year was that there were 17 boxes of audited accounting materials, and you were putting this email forward for that purpose, but lie you want to tell this year is that you don't know anything about LPAA? A. Mr Lancaster, there is no 17 box. I don't know what that reference is about, and I did follow up with Mr Watts a while ago, and he said he doesn't know and he has got no whereabouts of the 17 boxes. So either I have been confused and I may have answered a question in that confusion, but I certainly ‑ Mr Watts has confirmed to me that there was no such ‑ 17 boxes received by him ‑ by me. Q. You know that Sydney Metro and UTSG were in dispute for months in 2018 as Sydney Metro tried to get relevant documents about UTSG's alleged business? A. I was aware of the application that was lodged in August 2017. I was aware that Dr Baig raised a series of questions with Mr Digby Dunn about our finance ‑ our financials are not audited. I am aware of that, and that may have been some time shortly after August of 2017. I'm also aware that in February there was a series of court orders which required UTSG to produce certain documents, and one of the document was the expert witness report by 29 March in 2018. I was aware that the dependency of that report was financials, which was produced ‑ which was at that time about ‑ soon after the lodgement of that application to LEC, we engaged Fahad Siddiqui to prepare the financials and provide that in due course to Mr Mullins to be able to use that report for the production of the business valuation. Now, from that point onwards, in May ‑ from 1 May, and I have made that declaration through ‑ if not one affidavit, a number of times ‑ that from 1 May to 1 July I was not in office, and I understand there was ‑ I became aware on about 4 or 5 June that there was a substantial notice of 42 categories of notice to produce, which was the very first time I became aware of. 4 June or 5 June ‑ and I was not able to attend that because my father passed away on 6 June. So I was aware that there were 42 category of information that needed to be produced, and subsequently Mr Digby Dunn, because of my not ‑ availability, of my circumstance, he engaged Ms Claire Palmer to coordinate and attend to a series of documentation. In terms of providing the content of that information, that was predominantly coordinated through Brendon Hollins. If it was not Brendon Hollins, it was then John Frisken, because there's a series of information that could be only provided by them, and there was a series of information that was provided by Dr Baig, and I was certainly not available at that point in time due to the palliative care nature of my father in ‑ between March ‑ sorry, May and July. I don't understand why Sydney Metro would have waited on nearly one year to actually ask us to produce all these documents and exhaust UTSG at a particular time when Sydney Metro was aware of my personal circumstance. So I became aware of ‑ to answer your question, yes, I became aware of on about 4th or 5 June, that there was 42 category of sets of documents that Sydney Metro had required, and I think in the affidavit of Mr Digby Dunn, with all due respect he says that I was not able to contact my client because of the circumstance of death in the family, and a death in the family is my father passed away. So I don't ‑ I was not aware of the 42 categories of ‑ in the time that it was issued. Q. One of your responses on behalf of UTSG to Sydney Metro's attempts to get UTSG documents and financial records in 2018 was to advance the proposition to Sydney Metro and to this Court that there were 17 boxes of audited accounting records that had gone missing. Do you agree with that? A. I am not aware of the entire 42 categories. I mean, we did fall out with Mr Ganehir Watts, and he said he's not aware of the 17 category of the documents ‑ of boxes of documents that had been referred to. Q. You remember in a general sense, don't you, that UTSG was saying to Sydney Metro and the Court that there were very numerous number of documents that had just gone missing from the company's records, and that explained why there hadn't been production of documents in various categories. A. UTSG in the capacity of Dr Baig, it could be UTSG capacity of‑‑ Q. Did you understand my question? A. Yes. I am answering your question. Q. You're not answering my question. HER HONOUR: You're not. With great respect, Ms Singh, you're not. WITNESS: UTSG responded to the category of information you sought after, or around ‑ in May 2018, if I can recall, which I became aware of around 4 or 5 June 2018. LANCASTER Q. Ms Singh, I'll ask my question again. You remember in 2018 that one of the responses that you, on behalf of UTSG, made to Sydney Metro's requests for various categories of documents was that you didn't have documents because a very large number of UTSG accounts and documents had gone missing. Do you remember that? A. I don't believe the documents were missing. I believe that the documents were not accessible. Q. And you brought forward this email in your June 2018 affidavit to seek to establish to the Court that there were 17 boxes of material that had been provided to Mr Watts for safe storage but which had disappeared and had become inaccessible. That's what happened, isn't it? A. That was my understanding at that time. Subsequent follow ups with Mr Watts has confirmed that he did not receive the 17 boxes, and that was as part of our diligence to carry out ‑ to find where all the information is going because we were getting a lot of contradictory information from various people who were involved. It was not a matter of information that was missing. It was a matter of information that we were not able to access. Q. This email chain, and, in particular, the email on page 748 was brought forward as an annexure in your affidavit as part of your explanation to the Court of why there were not materials available to produce; that's correct, isn't it? A. Mr Lancaster, as I said, I did not ‑ I don't know when this was produced and how it was produced, but I know that there was no ‑ 17 boxes which was referred to. It was perhaps a confusion by all of us. Mr Watts has clarified that he has never received any such ‑ 17 boxes of records. Q. Thank you for that. Let me ask you about this email at the foot of page 748. If you say Jessica Leung was a real person, what was she doing emailing to you saying, "Hello Roselyne, as requested 17 boxes of the audited accounting records for safe storage was accepted by Mr Watts at 12.30." How do you explain that? A. You'll have to ask Jessica Leung. Q. Well, she doesn't exist, so I can't? A. I'm sorry, she is a person. I know she is a person. Q. Let me show you the real email chain, Ms Singh. A. Yes. … Q. In the email produced by the Taxation Guru, the email dated 7 March 2016 at 1.29pm says, "Hello, Roselyne, as requested", signed off, "Karen." Do you see that? A. Yes. Q. In the email in the chain that you produced, that is provided as an annexure to your affidavit, on page 748, the email from Monday, March 7, 2016 at 1.29pm says, "Hello, Roselyne, as requested 17 boxes have been accepted by Mr Watts", et cetera signed off Jessica Leung. Do you see that? A. Yes. The one on 748 is from Roselyne at V Health Plus and the one at ‑ is ‑ is to RAS at V Health Plus. Q. What I'm suggesting to you is that you, yourself, altered or cause to be altered the email chain which, in its true form is that produced by the Taxation Guru and you altered it so that it refers to the 17 boxes to be delivered to Mr Watts and provided it to Court as evidence? A. Mr Lancaster, I do not create. I do not manufacture. I do not make up quote and I am on oath. I absolutely reject any of that assertion. So, I'm getting really sick of this intimidation of‑‑ HER HONOUR Q. Ms Singh, you have answered the question which is no‑‑ A. No. Q. ‑‑the email emphatically and strongly, but it's no. Thank you. LANCASTER Q. Now, I can provide you with this document which is a document you would have seen before because it's attached to our opening submissions in the case. Just have a look at that? A. Mr Lancaster, I'm sorry, I haven't seen this. Q. Ms Singh, you must have seen it before. It's an attachment to our written submissions? A. It may have been. I have not seen it. Q. What that document is is a mark‑up of all the differences between the email chain that you produced from page 742 to 748 in the email chain, the Taxation Guru produced in answer to a subpoena from pages 19296 to 19306. You understand that? A. I can see it, but it's not anything I have produced. Q. What I'm suggesting to you is that you altered the contents of the email chain at 742 to 748 and produced it to the Court as a real record when, in truth, the real record is as produced by Taxation Guru at pages 19296 to 19306? A. Mr Lancaster, I don't do any such ‑ I don't enter into such behaviour of altering things. First of all, I would have no clue how to alter information in anything and the suggestion is simply absurd. So, to your answer ‑ the answer to your question is, no, I have not altered any invoices and I don't even know. Q. The reason that you altered the email chain, I suggest to you, was that you wanted to lay the groundwork for a false explanation that there were 17 boxes of UTSG materials that had gone missing or were inaccessible? A. Mr Lancaster, we do not rely on any of the material that Mr Ganehir Watts has referred to. Why would I alter any material that is not relied on for our financials that is not related to this claim? Q. Do you remember last year UTSG was directed to provide the electronic copies or copy of this email chain with metadata to Sydney Metro, but failed to provide any electronic copy? A. I don't ‑ I don't recall. I don't know. Q. You don't remember that from last year? A. No, I don't.
Mr Watts was not available to be questioned about the conflicting emails (his expert report having been rejected: UTSG (No 4)) and Ms Jessica Leung was not called by UTSG as a witness.
In my opinion, the only available and reasonably plausible inference to be drawn is that Ms Singh, or someone at her direction, deliberately altered the email chain attached to her June 2018 affidavit in order to manufacture an inference that there were 17 boxes of financial records from the company that had gone missing. Put another way, Ms Singh falsified evidence that was put before the Court in the proceedings. I neither believe that 17 boxes of UTSG's audited accounting records were delivered to Mr Watts nor that they ever existed.

Inconsistencies in UTSG's Financial Records

Much of the evidence dealing with the deeply problematic nature and content of UTSG's financial records (or lack thereof) is dealt with later in this judgment when analysing the expert forensic accounting and valuation evidence of the parties. However, there are many instances of inconsistencies between the material advanced in the affidavits of Ms Singh said to constitute records of UTSG's business, and other financial information. Examples include evidence of significant cash withdrawals from a line of credit followed by deposits of cash (sometimes in the identical amount) at other bank branches, the purpose of which was arguably to artificially inflate the income of the business.
There is also evidence of email exchanges with Dr Hsiau (a dentist), in which Ms Singh asked him to make deposits into certain accounts immediately before the "Transport valuers" investigated the performance of the business and inspected UTSG's records. It may be inferred that the request was to again artificially inflate the stated income of UTSG. When asked in oral evidence whether the email exchange between Ms Singh and Dr Hsiau meant that eight months of business transactions for UTSG were unreliable, Mr Mullins responded affirmatively (T867:01-13): EASTMAN: And the question will be at the end of that, that's another reason why eight months in these circumstances is unreliable, and the reason for that is on the assumption that the material that you've seen and identified in the email exchanges between Dr Hsiau and Ms Singh, that's all correct where there is an injection of funds that appear to be to show a transport valuer that there is money moving. That's another good reason why you can't rely on eight months of transactions for this business in those circumstances? WITNESS MULLINS: I think the better answer is that that's a reason why you wouldn't rely on the reported financial information at all. So it's not so much a period of eight months. If the injections occurred in a particular month, then that would certainly skew the average if you're only looking at it over eight months, but I would be more concerned about relying on information generally.
Ms Singh was given the opportunity of responding to the various allegations made in respect of the inaccuracies, inconsistencies and lacunae in the financial material that UTSG had relied upon in support of its claim (see also T451:34-454:26, 455:6-456:19 and 456:32-460:46). For example, her response was sought in relation to the fact that: 1. UTSG disclosed to the ATO in its Business Profile Questionnaire dated 4 March 2016 that its principal business activity was that of a property management company employing no people on wages or salary, and not a provider of medical services. Ms Singh's wholly disingenuous response was that, notwithstanding her declaration that the information that she gave in the questionnaire was true and correct (although she also suggested that emails were signed using her name by practice managers: T387:36-388:17), she only signed a blank form and that the contents of the questionnaire were completed by Mr Watts (T385:17-387:14). Ms Singh also somewhat inconsistently claimed that Mr Watts completed the form because "I would not be able to explain the business tax profile questionnaire" (T386:11-12). When pressed as to why the form did not state that UTSG ran a "medical, dental and health service business" she was nonetheless able to give a fulsome explanation as to why the ATO required a Business Profile Questionnaire (T392:25-31). None of Ms Singh's evidence regarding the 4 March 2016 Business Profile Questionnaire can be accepted. Furthermore, no weight can be given to the Business Profile Questionnaire dated 6 March 2019 signed by Ms Singh purportedly covering the period from "1 July 2015 to June 2017" wherein UTSG's business activity is described as an integrated healthcare service delivered by V Health Plus (and other associated entities). The latter document was prepared after the date of acquisition, after proceedings were commenced, and its plainly self-serving contents are inconsistent with the Business Profile Questionnaire dated 4 March 2016; 2. for the year ending 30 June 2015, the UTSG tax return prepared by Taxation Guru reported total assets of the company of approximately $3.2 million and total liabilities of approximately $4.3 million, thereby resulting in an income of approximately $512,429. The description of the main business activity of the business (described as V Health Plus at 40 Park St) was as a non-residential property operator and management service (T397:33-46). The amounts in the tax return cannot be reconciled with the financial information provided in the Mullins report and the Goodyer report (see the Special Purpose Financial Report, signed by Ms Singh), where sales of approximately $5.356 million were stated. When this inconsistency was put to Ms Singh, her response was that she had not prepared any of the financial documents and she repeatedly stated that she 'did not know' (T414:10-415:23). She did note, however, that the two documents (the tax return and the Special Purpose Financial Reports) were prepared for different purposes, and therefore, they could not be meaningfully compared (T416:33-417:24 and 622:40-624:16 in re-examination). To illustrate (T418:34-419:21): Q. Your evidence about the contents of the special purpose financial reports and the basis of accounting, that's all speculation by you, because you don't know, right? A. I don't know. I'm just reading in a lay person's language, as I'm looking at it, okay, well, there is an income. There is a different income reported. So, what I'm assuming, the tax return is reported on one basis and the financial report is prepared on another basis, but I don't have an explanation for that. Q. Is that your guess that it's prepared on two different bases or is that your understanding? A. It is just from the report I'm looking at, there is a debtor's list that means payment that has not been received is not recorded in the income tax return. Q. Ms Singh, sitting there in the witness box, you are sure that Mr Howman‑Giles criticises the company accounts for it being absolutely unclear the basis upon which the accounts said to be accounts of the company are prepared? A. I can't answer that question until that paper is in admission in the Court. Q. You've read his report, haven't you? A. I have read his report, but I'm going to make no comment on it until we have a ruling that there is ‑ that report is not objected. Q. I suggest that's what occurred is, when faced with this more than $5 million difference between income in the same period, you remembered the criticism that Mr Howman‑Giles had made and you raised that as a speculative reason to explain the difference when you, yourself, have no idea; that's what happened, isn't it? A. I don't agree with you. I'm just going on the basis‑‑ Q. On what basis informs the special purpose financial report prepared? A. I believe I ‑ the tax return is prepared on ‑ I can see on one basis and the financial report ‑ the purpose of each of those is different. The purpose of what I ‑ I see here now is that it gives a statement of the affairs of the company as at a particular end of date which is the special purpose report. The ATO report, the income tax return is reporting on the expenses, the cost of goods sold and expenditure. So, they are two different reports, they're comparing me with. 1. while Ms Singh was aware that the Special Purpose Financial Report was provided to the VG, she claimed that she did not "provide it", rather the company did, and that it was Mr Hollins (a director of UTSG) who coordinated UTSG's claim for compensation, which was completed by Mitry Lawyers (T419:32- 420:42). In the absence of Mr Hollins having been called as a witness, her evidence is not to be believed; 2. the amended points of claim alleged that the cost to relocate UTSG's business to 280 Pitt St was $2.12 million due to the need to dismantle IT infrastructure and fitout at 40 Park St, notwithstanding that UTSG could not provide any invoices or bank statements evidencing this expenditure (T320:18-324:7, 324:41-325:13, 326:29-332:5, and 335:30-337:1). This included a claim by Ms Singh that 42 servers had been relocated from 40 Park St to 280 Pitt St. During the site visit to 280 Pitt St, no servers or room containing any servers was viewed or even referred to (T357:10-358:48). Ms Singh suggested that that Mr Frisken was responsible for the IT relocation, but UTSG did not call him as a witness (T358:33-44); 3. UTSG's claim to operate an integrated medical centre at 40 Park St in 2016 was contradicted by emails indicating that whatever business was operating at that location at that time, the business was owned by V Health Plus International Pty Ltd and that no income or expenses were generated as reported to the ATO for the first six months of 2016 (T396:9-37 and 451:22-454:26); 4. UTSG claimed that it paid for and owned the fitout at 40 Park St when documentary evidence indicated that it was UTSG Consortium who owned the fitout (T476:31-45 and 477:20-26); 5. that it was asserted that UTSG Consortium was "simply a leasehold company" and that it did not engage anyone to carry out the fitout of 40 Park St, and moreover, that MedBuild never existed. This was despite correspondence evidencing a contract and invoices between MedBuild and UTSG Consortium for fitout of 40 Park St and a claim by NuMed Health Care as trustee for NuMed Health Unit Trust trading as MedBuild against UTSG Consortium for unpaid invoices (T467:29-471:07 and 472:08-477:26); and 6. it was claimed that UTSG's assets were removed from 40 Park St and held in storage in Yennora upon acquisition and that this cost was part of the wasted relocation costs UTSG was seeking compensation for, despite not referring to this cost in its amended points of claim, any of Ms Singh's affidavits, or in any documentary evidence (T423:19-427:21). The only mention of UTSG's assets being held in storage was found in the Business Profile Questionnaire dated 6 March 2019, to which reference has already been made and upon which no weight is placed. No costings accompanied the statement.
These inconsistencies remain unexplained by Ms Singh (a director of UTSG). The conclusion to be drawn from the evidence is that Ms Singh was aware of the information provided to the ATO in the 4 March 2016 Business Profile Questionnaire, aware of the information contained in the tax return for the financial year ending 30 June 2015, and aware of the contradictory information contained in the Special Purpose Financial Report that was relied upon by Mr Goodyer, the VG, and Mr Mullins.

Ms Singh is Not a Witness of Truth

Despite being on notice of the allegations referred to above since, at the very least, the date upon which Sydney Metro served its comprehensive written outline of opening submissions on 28 March 2019, UTSG and Ms Singh did not seek to adduce evidence to meet them. For example, none of Dr Shakoor, Mr Scott, Ms Adams, Ms Leung, Ms Cheung, Mr Fahad (also known as Mr Siddiqui), Mr Frisken, Mr Goodyer, nor anyone from LPAA or TaxSavvy, were called as witnesses by UTSG by way of rebuttal.
The observation concerning the absence of these potential witnesses is not made in order to draw adverse inferences pursuant to Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, rather it is to emphasise that the only way in which UTSG's evidence about its business structure and financial affairs can be accepted is, as Sydney Metro submitted, especially given deficiencies in its primary documentation (that was never forthcoming in answer to the NTP), either by making positive inferences based on the available evidence or by accepting the assertions that Ms Singh has made in her evidence.
In the present case, for the reasons discussed above, the documentary evidence is inadequate to establish UTSG's claim for compensation and no inferences can be made in UTSG's favour having regard to Ms Singh's testimony. As the evidence discloses, Ms Singh lied about the Business Sale Agreement, lied about the independent existence of 5G, LPAA, and TaxSavvy, lied about the delivery of "17 boxes" of UTSG's financial records to Mr Watts, and lied about the existence of various persons such as Ms Adams, Ms Leung, and Mr Scott. These falsehoods have been perpetrated in both her oral and documentary evidence upon which she, and by way of logical corollary UTSG, have placed reliance.
Further falsehoods peddled by Ms Singh during the proceedings included her assertion that: 1. Arys Health, operating at 280 Pitt St during 2017 and 2018 was jointly owned by Ms Singh and Dr Baig but controlled by UTSG. But UTSG did not become a shareholder in Arys Health until January 2019, that is, after the acquisition date. Furthermore, ASIC records demonstrate that Dr Baig was the sole director of Arys Health and that neither Ms Singh nor UTSG held shares in it prior to January 2019 (T338:3-342:37, 344:16-45, and 352:25-354:1); 2. UTSG informally exercised its option to renew the lease at 40 Park St for a further five years prior to the date of acquisition notwithstanding a term of the lease that stated that the first day that the option could be exercised was 28 February 2017, that is, after the date of the resumption (T367:44-370:26). There was no evidence of any informal agreement to exercise the option as asserted by Ms Singh. Ms Singh's claim that she lacked any legal knowledge about the operation of the option (T369:20-48) cannot be believed given her detailed knowledge of UTSG's business affairs; 3. there was a verbal agreement between the lessor and UTSG for the right of first refusal to purchase 40 Park St. There was no evidence to support this contention. Rather, there was evidence from the lessor to the contrary (T371:16-373:3, 374:18-29, and 376:29-377:35); 4. the first knowledge that she had of the proposed acquisition was in April or May of 2016 and that it came as a "big shock". To the contrary, there was evidence of correspondence with the lessor for the purpose of allowing access to the premise by a valuer from TNSW in February 2016 (T359:25-362:47); 5. contrary to her claim in her April 2019 affidavit that she did not discover UTSG's "chronic" non-compliance with Court orders until 12 October 2018, she in fact discovered UTSG's non-compliance with Court orders on 28 August 2018. There is also correspondence indicating that she had received emails prior to this date regarding various orders made by the Court (T382:24-383:33 and 384:14-20). Her answer that she did not read the emails due to her ill health (T383:27-33 and 384:14-20) cannot be believed given evidence indicating that she responded to the correspondence; 6. she only used the names stated on her passport and driver's licence, notwithstanding that she has approximately 29 variations of her own name, date and place of birth on ASIC registration material. In the second Supreme Court proceedings Dr Baig also deposed to the fact that she used aliases (T432:41-433:35, 434:6-435:39, 461:7-9, and 487:20-488:40); 7. she did not, as she frequently claimed when it suited her, possess the requisite skills, knowledge or expertise about basic accounting matters and financial records (see, for example, at T331:15-36, 395:40-43, 398:18-36, 399:19-25, 399:35-37, 406:18-25, 407:25-35, 409:1-38, 413:43-415:29, 418:29-40, 420:14-42 and 451:39-41). At other times during her evidence, again when it suited her, she was able to give a detailed explanation of UTSG's corporate structure, the purpose of the Business Profile Questionnaire, the recording of UTSG's income and expenses, the operation of its billing system, and the preparation of its tax returns (T385:05-33, 392:24-31, 398:38-399:17, 416:48-417:24, 451:43-452:25 and 490:3-491:4). While I accept that Ms Singh did not possess special qualifications or expertise as an accountant, she nevertheless demonstrated a relevantly detailed grasp of the financial position of UTSG (as would be expected from a director of a company with the concomitant legal duties that office demands under the Corporations Act 2001). Ms Singh repeatedly claimed to have had extensive business experience (T526:38-44; 529:04-06 and 529:34-48) and she exhibited a basic level of familiarity with financial accounting principles for small to medium businesses (T415:50-417:24). To the extent that she asserted otherwise during cross-examination, this response was usually given by her as a mechanism of evasion; and 8. she did not read all her affidavits before swearing the contents of them to be true. A claim made by her in order to resile from inconsistent evidence. For example (T336:29-338:01): Q. Ms Singh, do you agree that in the materials you have put forward to the Court in all your affidavits and all the annexures, there is not a single document in the nature of a bank statement or bank payment receipt showing any payment at all by UTSG in respect of any of the invoices or amounts referred to on pages 3401, 3402 in respect of alleged relocation costs to 280 Pitt Street; that's right, isn't it? A. Mr Lancaster, I did not prepare by affidavit, and I do not know the attachments, so I don't know how to answer that question. Q. You swore all of the contents of your affidavits to be true, didn't you? A. I swore the affidavits, and I have made a clarification this morning in my affidavit, and I have supported that affidavit with an email from Digby Dunn which says ‑ and I have supported that ‑ that I have not entirely read the ‑ in detail ‑ it was just a court order that needed to be satisfied. I received an email from Digby Dunn, which I have attached to my affidavit on 28 June. I believe it is 5.54pm, and for me to attend a legal place somewhere in Elizabeth Street or something to go and sign that affidavit by 10 o'clock. That is all I'm aware of. I don't know the details of it. I don't know what the tabs contain because, one, I don't have access to those and I was hoping to have those ‑ access to all the affidavits and the documents attached to it through the course of last week ‑ or this week. I still don't have it and I, quite honestly, do not know how to answer that question. If it's not there, then it's not there. If it's ‑ but I can't ‑ I can't confirm it. Q. Is the position that you were prepared to swear as true the contents of four affidavits and actually numerous documents without having any real idea about the contents of the annexures to your affidavit; is that what you say? A. Mr Lancaster, with all due respect, I have ‑ and you read my affidavit of this morning. I was on the personal leave, carer's leave for my father for 1 May to end of June. These are all all documents completed during that period and I don't need to repeat and stress the Court in mentioning that my father passed away on the 6th and you would have understood if you have experienced anything like that, then you would understand the state of mind I am in in trying to manage all my responsibilities, because I had a mother who was alive as well. HER HONOUR Q. Mr Singh, did you not understand Mr Lancaster's question? Was there something about it that you didn't understand? A. I understand. Q. So, you understood his question? A. I understood his question. Q. I will ask Mr Lancaster to ask the question again. The direct question, in my view, can be answered directly and it's an important question. HER HONOUR: Mr Lancaster, please ask the question again. LANCASTER Q. Ms Singh, you were prepared to swear to be true four affidavits that have been filed and relied on by you in these proceedings, having no real idea about the contents of the annexures to that affidavit; is that the position? A. No, I ‑ I referred to affidavits of 7 May 2018 and I refer to the affidavit of 29 June 2018. The rest of it ‑ of the affidavits, yes, I am aware of. Does that answer your question? So, I'm referring to two specific affidavits which, during that period, I was not ‑ I can't ‑ I mean, I signed it because I needed to comply with the Court dates, but I did not read it and I did not believe any reason for my solicitor to have made up anything and if he felt that it was important for those information to be included in my affidavit, then he would have done so. So, I respect his judgment on that. Today, I don't know what it behind the tabs of the affidavit. Q. You accept ‑ is this your evidence ‑ that in respect of your May 2018 and June 2018 affidavits, you were prepared to swear the contents of that affidavit to be true and correct, even though you didn't know the contents of the annexures to those two affidavits; that what your evidence is? A. 7 May and 29 June, yes. Q. I beg your pardon? A. 7 May 2018 affidavit and 29 June affidavits, yes, that is correct.

The Expert Valuation and Forensic Accounting Evidence Does Not Support UTSG's Claim for Compensation

The Forensic Accounting Evidence

At the risk of repetition, there was a fundamental issue in the case as to the reliability of the material said to constitute the accounts, records or financial statements of UTSG's business. Sydney Metro submitted that because of the paucity of reliable financial information, UTSG had not discharged its onus of establishing, and hence the Court could not determine, that the business had suffered any loss that was compensable under the Just Terms Act (citing G Capital Corporation Pty Ltd; Gertos Holdings Pty Ltd; Marsden Developments Ltd v Roads and Maritime Services [2019] NSWLEC 12 at [83]). For reasons that are developed below, I agree.
As a consequence of the assertions made in the Mullins report, Sydney Metro issued the NTP to UTSG calling for documents that were directly relevant to an understanding of UTSG's actual revenue, beyond that which had been asserted in the spreadsheet appended to the Mullins report (Appendix 15). The request included documents that were required to exist by dint of legislation, such as documents needed for taxation purposes, bank records, and agreements with medical service providers. The documents were necessary to establish the nature of UTSG's earnings, evidence of which was otherwise almost entirely absent from the material contained in the Mullins report (see UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 at [28]).
It was because of the inconsistencies in the material advanced by UTSG as the basis of its claim that Sydney Metro engaged Mr Howman-Giles from KPMG to carry out a review of the available financial records to determine what, if any, information was reliable and verifiable (the Howman-Giles report). Although his instruction letter was dated 10 August 2018 and his report was dated 16 August 2018 (that is, a mere six days later), Mr Howman-Giles told the Court that he in fact commenced work on his report on 5 July 2018, which was when he was initially approached by Ashurst (T1031-1036:28).
As explained earlier in this judgment, as a consequence of the service of the Howman-Giles report, Mr Mullins took the extraordinary step of withdrawing his expert evidence immediately prior to the hearing originally listed in August 2018.
After the proceedings were vacated, UTSG obtained directions to put on further expert accounting evidence. Accordingly, annexed to Ms Singh's November 2018 affidavit was the Watts report.
The Watts report took issue with the Howman-Giles report but failed to provide any further financial information, failed to explain the absence of adequate record and account keeping by UTSG, and failed to give any meaningful assessment of, or provide a cogent foundation for, the assertion repeatedly made by UTSG that the Mullins report was based upon reliable and verifiable financial information. As stated above, the Watts report was rejected in its entirety. As a consequence, the joint report dated 31 January 2019 prepared by Mr Watts and Mr Howman-Giles was also not admitted into evidence.
By way of summary, the Howman-Giles report provided a careful and comprehensive analysis of the financial records relied upon by Mr Mullins in the Mullins report, and compared it to material that either should, or ordinarily would, form the basis of an assessment of the financial performance of a business. He then made adjustments to determine what was the best evidence - that is, the records that were able to be objectively verified and which were most reliable - as to the maintainable earnings of UTSG after deducting related-party transactions. The resultant figure was a negative value; the business was a loss-making venture with no maintainable earnings.
UTSG submitted that the Howman-Giles report was deficient because, first, Mr Howman-Giles lacked the relevant expertise and experience in the health industry. This was categorically rejected by him (T1017:46-1018:02): Q. Mr Howman‑Giles, do you have a thorough knowledge of the medical and healthcare services e industry? A. I have experience across the health industry, particularly in terms of financial aspects of the health industry. In terms of the day‑to‑day operations of a ‑ the various ‑ the health industry is very broad, and so in terms of a thorough ‑ I certainly wouldn't put myself out as an expert in medical health operations.
Having regard to his qualifications and his past experience, the criticism was unfounded.
Second, because Mr Howman-Giles had failed to examine a complete set of the financial records of the company (with the inference being that he was deliberately given an incomplete and selective set of UTSG financial records: see, for example, T1026:17-1028:23 and 1348:16-1353:18). However, as Sydney Metro correctly contended, this so-called deficiency lay squarely at the feet of UTSG for failing to produce this information. As Mr Hill stated in oral evidence (T1137:33-1138:01 and 1143:48-1144:08), all of the material concerning the financial performance and position of UTSG that could be obtained after an lengthy process of compulsory production from UTSG, and third parties, was provided to Mr Howman-Giles for his analysis, including the subpoenaed material produced by MS Tax (T1022:05-23) and documents depicting the UTSG group structure (T1073:35-50). The information also included all of the material relied upon by Mr Mullins in the preparation of his report. Despite this repeated criticism of Mr Howman-Giles, UTSG was not able to identify a single relevant document that was not in the material before Mr Howman-Giles that would have, had it been provided, altered the opinions that he expressed in his report.
Mr Howman-Giles's findings as to the reliability of the underlying financial information examined by Mr Mullins were as follows: 3.4.30 In summary, the financial information including the Monthly Financial Statements (Mullins), Financial Statements (Mullins) and tax returns relied on by Mr Mullins is not reliable for the purposes of representing the historic financial performance of UTSG as: • The monthly Financial Statements (Mullins), Financial Statements (Mullins) and tax returns provide one set of earnings figures that are inconsistent with several different versions of monthly and annual financial statements. • The Monthly Financial Statements (Mullins), Financial Statements (Mullins) and tax returns provide incomplete information and contain errors. • There is no explanation as to the reasons that one set of financial statements should be considered more reliable than others. I have not identified in the Briefed Materials accounting records such as a general ledger or trial balance that support any versions of the financial statements. • The significant debtor and creditor balances provided in various versions of the financial statements indicate that the business has not collected payments equivalent to its income recorded or paid its recorded expenses. • The figures in the Monthly Financial Statements (Mullins) are not supported by cash flows in the bank statements of UTSG or related entities that are available in the Briefed Materials. • There is email correspondence and other information that indicates that the financial statements are prepared on a consolidated basis of UTSG and related parties when UTSG was not a parent entity of a corporate group in FY15, FY16 or FY17. 3.5 Conclusions 3.5.1 I have formed the following opinions that the financial information relied upon by Mr Mullins in the Mullins Report: • Is not verifiable as the figures cannot be checked to basic accounting books and records, cash flows in bank statements or complete transaction level practice management reports (para. 3.3.18); and • Is not reliable as the figures are not consistent with other financial statements or cash flows, are incomplete, contain errors and included financials of other entities (para. 3.4.30). 3.5.2 I have considered a significant volume of information provided in the Briefed Materials and note that there is a general lack of base level accounting information such as general ledgers and journals to support the preparation of financial statements and there is conflicting information between the various annual financial reports, monthly financial reports and practice management reports.
UTSG's monthly financial statements were the main source records relied upon by Mr Mullins in representing the historic earnings of UTSG. In particular, a spreadsheet provided by UTSG to its accountant, Mr Fahad of MS Tax, was provided to Mr Mullins. It was this spreadsheet upon which Mr Mullins based his assumptions and formed his opinions. The spreadsheet contained columns "P" and "Q" which were stated to have been audited by "LPAA". This was significant because the spreadsheet was the basis for the calculations upon which Mr Mullins relied.
Contrary to the submissions of UTSG, Mr Howman-Giles was aware of, and expressly referred to the MS Tax spreadsheet, including columns "P" and "Q", in his report.
Mr Howman-Giles reviewed the statements for the financial years 2016 and 2017 and identified that: • There are different revenue categories accounted for in FY16 to FY17 (para. 7.1.10) with only an inconsistent explanation identified in the Briefed Materials that explains certain revenue items were allocated to ICMS Health and Wellness (para. 7.4.2). • There are two additional versions for FY16 (Monthly Financial Statements - Version 2 and Version 3) that contain "Audit Notes" and refer to "…Audited by LP Accountants and Auditors". The additional versions contain different figures to the Monthly Financial Statements (Mullins). I have not identified information in the Briefed Materials that would explain why the version relied on by Mr Mullins (without the audit notes) should be considered more reliable than the other versions for FY16. • There is a different version for FY17 (Monthly Financial Statements - Version 2) that contains different revenue, expense and profit figures to the Monthly Financial Statements (Mullins). I have not identified information in the Briefed Materials that would explain why the version relied on by Mr Mullins (without the Source/Reference) should be considered more reliable than the other versions FY17.
In his opinion, therefore, this material was not reliable for the purpose for which it was used by Mr Mullins.
According to Mr Howman-Giles, UTSG's financial statements for the financial years ending 2015 to 2017 (the financial statements for the 2018 year were unsigned and dated 4 March 2018) relied upon by Mr Mullins showed operating losses for all years except 2016.
Specifically, the findings of Mr Howman-Giles in relation to the financial returns for those years were as follows: 8.8.2 I make observations on the completeness of the Financial Statements (Mullins) including that: • The Financial Statements provide a date of 4 March 2018 and are unsigned (para. 8.2.3). • The Directors' Reports in the Financial Statements provide that UTSG was "dormant during the financial year(s)" (i.e. that the company did not trade), (para. 8.2.3) which is inconsistent with the information in the Financial Statements (Mullins). • The balance sheet does not provide any balances for cash or cash equivalents, trade receivables, trade payables, short term debt obligations, long term debt obligations (other than to related to parties) or shareholders equity (para.8.2.9) and without some or all of these figures the balance sheet is incomplete. • There are no details of the secured loans from related parties with interest costs incurred only in FY17 (para. 8.2.7 and para. 8.2.10). 8.8.3 I am provided with several versions or sets of financial statements as follows. • 11 sets of financial statements for FY15 (including FY15 figures that are provided in FY16 financial statements). Of the 11 sets of financial statements there are seven different sets of figures. • Six sets of financial statements for FY16. Of of the six sets of financial statements there are four different sets of figures. • I am only provided with the FY17 Financial Statements (Mullins) for FY17. 8.8.4 The findings from the review of the different FY15 financial statements follows. • Revenues range from $0.51 million to $5.69 million; expenses range from $1.13 million to $4.70 million; and profits (or losses) range from losses of $2.25 million to profits of $2.69 million. • The SPFR (Internal Audit) for the year ended 30 June 2015 is signed by Directors of UTSG (Roselyn Singh, Mirza Baig, Peter Scott and Snighan Simiran) and I note that: (a) The profit and loss statement in the SPFR contains different earnings figures (a profit of $0.66 million) to the Financial Statements (Mullins), (a loss of $0.64 million). (b) The balance sheet in the SPFR contains different account balances to the Financial Statements (Mullins) including a debtors balance of $5.35 million and a creditors balance of $11.94 million. These balances are significant on revenues of approximately $5.34 million. There are no debtor or creditor balances in the Financial Statements (Mullins). 8.8.5 The findings from the review of the different FY16 financial statements follows. • Revenues range from $5.90 million to $9.52 million; expenses were consistent at $5.36 million; and profits (or losses) range from losses of $0.56 million to profits of $4.16 million. • Different sets of financial statements contain various debtor balances of up to $3.26 million (the SPFR extract by TaxSavvy) and accrued expenses balance of up to $9.83 million. These are significant on annual revenues of $5.92 million. Put simply, the financial statements indicate the business has not collected payments for more than half of its income and has unpaid expenses equivalent to 20 months of revenues. The Financial Statements (Mullins) do not provide debtor or accrued expense balances. 8.8.6 The Financial Statements (Mullins) for FY16 and FY17 are consistent with the Monthly Financial Statements (Mullins) which are the principle source records for Mr Mullins' assessment of historic financial performance of UTSG (para. 8.6.2). 8.8.7 Significant debtor and creditor balances indicate there are likely significant differences between accounting profits and cash flows. By recording income on an accruals basis without recording a corresponding receivable (for income yet to be received), the financial statements are not presenting an unbiased view of the financial performance and position of UTSG. 8.8.8 There is an inconsistent application of accounting methods (cash and accrual) used to account for revenues (accruals), expenses (accruals for cost of goods sold and cash for operating expenses), assets and liabilities. I consider that financial statements prepared on inconsistent bases of accounting are not likely to provide a complete and neutral depiction of the financial performance and position of a company. 8.8.9 Annual financial statements prepared in the absence of basic accounting information such as a general ledger, trial balance or consideration of the cash flows provided by bank statements do not provide a verifiable record of the financial performance and position of a company (para. 6.3.4).
Having regard to the conflict between the financial statements relied upon by Mr Mullins and other existing financial information, the inconsistent accounting methods used, the incompleteness of the information in the balance sheet and the lack of underlying accounting information, Mr Howman-Giles did not consider the financial information used by Mr Mullins to be verifiable or reliable for the purpose of assessing the historic earnings of UTSG.
The summary by Mr Howman-Giles of his review of UTSG's tax returns and related email correspondence was equally damning: • The figures in the tax returns appear incomplete given the significant movement in balance sheet accounts and the figures not being consistent with general accounting principles that closing net assets - opening net assets = change in equity (para. 9.1.9). • For FY16 and FY17, the revenue, expense and profit figures in the tax returns are consistent with the figures in the Financial Statements (Mullins). • There are significant differences between the asset balances in the tax returns and the asset balances in the Financial Statements (Mullins) for FY15 (a difference of $1.23 million) and FY16 (a difference of $9.64 million). • There are significant differences between the liability balances in the tax returns and the liability balances in the Financial Statements for FY15 (a difference of $1.23 million), FY16 (a difference of $8.62 million) and FY17 (a difference of $0.43 million). • Email correspondence between Mr Fahad and Ms Singh indicates that the Tax Returns for FY16 and FY17 contain figures related to "group entities" rather than UTSG figures only and the tax returns were prepared using a "consolidated approach" (para. 9.5.2 and para. 9.5.3). UTSG on my analysis is not a parent entity of a corporate group of companies (para. 12.4.7). 9.6.4 Further, to the extent that the revenue, expense and profit figures in the tax returns reflect some form of consolidation of "group entities" then this would also apply to the Financial Statements (Mullins) and Monthly Financial Statements (Mullins) on the basis that the earnings figures in the tax returns reconcile to the Financial Statements (Mullins) and the Monthly Financial Statements (Mullins). 9.6.5 For UTSG financial information such as tax returns to be reliable for the purposes of representing the historic financial performance of UTSG, I consider they need to be a faithful representation of the financial performance of UTSG rather than the financial performance of an undisclosed group of companies.
Mr Howman-Giles paid particular attention to the cash deposits and withdrawals for June 2016. This was because they were anomalously large: 10.5 June 2016 Transactions 10.5.1 The analysis of the cash deposits and withdrawals for June 2016 identified a significant increase in transactions. 10.5.2 I have identified information that provides further details of the nature of the deposits in June 206. This includes the following transactions: • 118 ANZ Credit transactions on Ms Singh's credit card referring to "V Health Plus Sydney". • A cash advance from Ms Singh's credit card that corresponds to a cash and cheque deposit at a CBA branch. • Cash deposits referring to Dr Hsiau. • Transactions referring to "TfNSW" that I do not consider reflect income of the business. … 10.5.5 I don't have information to explain these transactions. … 10.5.6 I have not identified the 118 individual transactions in the transaction analysis of the bank statements. … 10.5.9 I consider it unusual that Ms Singh, a 50 percent shareholder of UTSG at June 2016 would have payments to V Health Plus of $126,781 in less than one month on a credit card. 10.5.10 I also note from the credit card statement that on 27 June 2016 there was a transaction described as 'ANZ BANK SYDNEY' for $57,000. This transaction appears to be a cash advance as the following transaction is a 'CASH ADVANCE FEE' and has a transaction figure consistent with a 2.0 percent charge. … 10.5.11 On the same day, 27 June 2016 there is a deposit to the V Health Plus Foundation account (Account Number 10375943) for $57,397.95 with the description "Cash & Chq Dep Branch Prk&C'reagh Syd". I have no other information in respect of this deposit. 10.5.12 On the basis of the information in the ANZ credit card statements and with no explanation of these transactions in the Briefed Materials, I consider that both the $126,781 of credit card transactions and $57,397.95 deposit are not income of UTSG derived from the provision of any goods or services to third parties. Dental deposits 10.5.13 In an email titled "URGENT - SMS or EMAIL" dated 10 May 2016, from Ms Singh to Dr Hsiau and an individual called "Bakita Cho", Ms Singh says: "we have a review of our books tomorrow which is suddenly imported by transport valuers, we would just require to show some income for the dental in the period ending 30 [March] that will make the basis of what we may be able to claim - I have exhausted to level that I cannot be seen as injecting funds. We will raise the IT integration challenges as [the] issue causing dental appointment book conflicts. Dr Baig has transferred in total of $30500 - can you or [someone] transfer minimum of $5000 today please. this is critical as the compensation will depend on what we can demonstrate otherwise [it] may be a much lost opportunity for us. As mentioned we would reimburse once the review is finalised. Between Dr Baig and I we have managed to inject $70K to Dental Income this week. …let us know when completed so the accountant can write a journal amendment for tomorrow." 10.5.14 I do not have a breakdown of the "$30500" or the "$70K" outlined in the above email correspondence, details of the relevant bank account(s) or transaction dates, to be able to confirm these cash deposits to the available bank statements. 10.5.15 Dr Hsiau's response to the above email correspondence includes the following: "I will draft fund from my credit card…I will do it right away for $5000."
Where appropriate to do so, Mr Howman-Giles nevertheless took the transactions into account in his analysis.
In the absence of being able to rely on the material used by Mr Mullins for the purpose of representing the historic financial performance of UTSG, and in the absence of having access to accounting records such as the general ledger, trial balance or bank reconciliations to enable him to verify the information in the monthly financial statements, the annual financial statements or the tax returns, Mr Howman-Giles examined UTSG's cash flows (more specifically, its estimated past cash flows, or "earnings before interest, tax, depreciation and amortisation" ("EBITDA")) as provided by bank statements, to ascertain deposits and withdrawals of UTSG and related parties.
His findings based on these records were equally dire: 10.7.1 The review of cash flows identified the following: • UTSG (and related parties) did not retain cash balances month to month. Any funds deposited were either spent or transferred out of the accounts by the end of the month. • Total deposits in the bank statements for the eight months to 31 October 2016 is $4.66 million. This compares to a total of $7.38 million in revenues in Mr Mullins' analysis. • Total deposits in the bank statements (adjusted for related party, cash and TfNSW transactions) for the eight months to 31 October 2016 is $1.53 million. 10.7.2 The analysis identified a significant increase (approximately nine times previous months) in deposits and withdrawals in June 2016. A review of the transactions in June 2016 identified: • 118 transactions that total $126,781 on Ms Singh's ANZ credit card (para. 10.5.4); • A $57,000 cash advance which corresponds to a cash and cheque deposit into the V Health Foundation Account for $57,397.95 on the same day (27 June 2016), (para. 10.5.11); and • A deposit relating to the dental practice of $10,000 that was purportedly "…inputted to show Transport" by Dr Hsiau (para. 10.5.19). 10.7.3 These transactions in June 2016 and email correspondence between Ms Singh and Dr Hsiau provides information that shows not all of deposits in the UTSG and related party bank accounts in June 2016 relate to income generated through the provision of medical or health services at 40 Park Street, Sydney. 10.7.4 A comparison of the deposits in the bank accounts of UTSG and related parties (adjusted for related party, cash and TfNSW transactions) to UTSG gross profits as provided in Mr Mullins' analysis identified that the gross profits in Mr Mullins' calculation are more than three times the level of adjusted deposits in the Reference Period. 10.7.5 My calculation of adjusted cash deposits may be overstated to the extent there are unidentified related party transactions and understated to the extent UTSG income has been deposited into bank accounts not provided. 10.7.6 In summary, the revenue and gross profit figures in the Monthly Financial Statements relied on by Mr Mullins are not supported by deposits in the bank statements of UTSG and related entities.
As for practice management reports (see section 11 of the Howman-Giles report), including Medicare records, work done by doctor summary reports, confidential records, appointment level reports, and practitioner service agreements, these did not identify information that verified the revenue figures in the monthly financial reports relied upon by Mr Mullins (section 11.10.13).
In light of the principal business activity of UTSG described by the company in its 4 March 2016 ATO Business Profile Questionnaire, and that of related parties, Mr Howman-Giles concluded that: 1. UTSG was, contrary to the opinion proffered by Mr Mullins, a "commercial property development, maintenance and management services" company rather than a provider of integrated health or medical services (section 12.2.5). In this context, he noted (sections 12.2.6 and 12.2.7) that Mr Mullins did not provide a definition of "UTSG" as an accounting entity in the Mullins report other than "UTSG Pty Ltd". That is to say, unlike Mr Mullins, Mr Howman-Giles examined the actual activity of UTSG and related companies; 2. to the extent that the monthly financial statements relied upon by Mr Mullins contained revenue derived from entities other than UTSG, Mr Mullins's calculation of revenue was overstated; 3. similarly, Mr Mullins's calculation of expenses was overstated; and 4. Mr Mullins's calculation of historic earnings derived by entities other than UTSG was inconsistent with his instruction to assess the loss suffered by UTSG and his claim that he had focussed on UTSG's likely future profits.
In addition, Mr Howman-Giles could not identify sufficient information to establish (section 12.5.6): • The extent of revenue and expenses, if any, included in the Monthly Financial Statements (Mullins) that relate to separate legal companies or individuals (including medical practitioners). • What rights UTSG held to the income and assets held by other entities or individuals as on my analysis of UTSG's corporate structure it did not have control or a majority interest in any entity across the entire Reference Period.
Mr Howman-Giles also provided an alternative EBITDA for the eight months between March to October 2016, namely, the UTSG cash transactions provided by the bank statements of the company and related entities (section 3.6 of his report). His alternative calculation (in section 3.6.10) resulted in a loss of $0.29 million and an average monthly loss of $36,726. This was in comparison to Mr Mullins's positive past cash flow of $2.85 million (based on the monthly financial statements). Mr Howman-Giles conceded that his calculation may have been both overstated to the extent that there were unidentified related party transactions and understated to the extent that UTSG income had been deposited into bank accounts for which statements had not been provided.
He particularly noted that the EBITDA figures for June 2016 were not consistent with other months in the review period, insofar as it was 10 times more ($258,716) than the next best month, namely, September 2016 ($25,703). Having regard to email correspondence from Ms Singh and other information relating to the June 2016 transactions, such as her ANZ credit card transactions for V Health Plus and cash deposits, Mr Howman-Giles opined that "the estimate for June 2016 should not be considered to be reflecting the operations of UTSG in the ordinary course of business."
Mr Howman-Giles's oral testimony, elicited largely in cross-examination, was to the same effect, namely, that: 1. the financial records relied upon by Mr Mullins, including UTSG's monthly and annual financial statements and tax returns, were not reliable and verifiable because they (T1067.09-1067:44): 1. had not been prepared using consistent accounting methods; 2. did not utilise the fundamental principle of double-entry bookkeeping; 3. were not supported by practice management reports, Medicare reports, or cash flow information derived from bank statements of UTSG; 4. were not consistent; 5. contained errors and incomplete information; 6. showed creditor and debtor balances which indicated that UTSG had not received payments equivalent to its recorded income; and 7. email correspondence and other information suggested that they were prepared in respect of a consolidated corporate group which included UTSG and related parties, in circumstances where UTSG was not the parent entity of the group in the 2015, 2016 and 2017 financial years; 1. there were 11 different versions of the 2015 financial records. As a consequence, they were not reliable or verifiable. He therefore examined the bank statements of UTSG and related entities to determine UTSG's historical financial position (T944:08-48); 2. in his brief materials (which included the material before Mr Mullins and Mr Fahad) there was no general ledger. The BPS system did not have a general ledger (T929:28-930:34). Even if he had a full set of BPS financial information, this would not have altered his opinion that the financial information relied upon by Mr Mullins was unreliable and unverifiable. This was because of the existence of numerous conflicting versions of ostensibly the same financial statements and the numerous errors that he had identified in the brief materials (T1076:46-1077:10); 3. there were insufficient invoices in the brief materials for him to be able to validate whether each bank deposit corresponded to a particular UTSG invoice (T962:24-38); 4. he erred in favour of UTSG in determining whether a transaction was a related party transaction (T990:36-991:03). Had he limited his analysis of bank statements and bank accounts to only those accounts in UTSG's name, there would have been "minimal or no earnings of UTSG" (T1080:23-44). The earnings reported by Mr Mullins were overstated because Mr Mullins had relied on financial statements that included revenue, expenditure and earnings from entities that did not appear to be related to UTSG (T1010:30-42 and 1067:35-44); 5. there were unknown deposits in March, April and May 2016 totalling $87,794. The unknown deposits in June 2016 totalled $517,624, which represented a significant increase in transactions. Properly analysed, there were three explanations for the increase: a cash advance made on Ms Singh's ANZ credit card which corresponded to cash and cheque deposits made at a CBA branch several days later and 118 credit card transactions on the same card referring to "V Health Plus Sydney"; cash deposits from Dr Hsiau; and a payment from TNSW in the amount of $339,000 (T965:30-966:04). It was his opinion that $344,905 of the total unknown deposits for June 2016 was not income derived by UTSG. That is, it was not generated as a result of the provision of goods and services by UTSG, but constituted related party transactions (T985:05-19); and 6. based on the information contained in the 4 March 2016 Business Profile Questionnaire, and contrary to statements made in the Mullins report, the principal business activity of UTSG was that of commercial property development and maintenance.

The Business Valuation Evidence

Notwithstanding the withdrawal by Mr Mullins of his report: 1. Ms Singh annexed a copy of the Mullins report to her November 2018 affidavit; and 2. Mr Mullins participated in joint reporting with Dr Ferrier and prepared two joint valuation reports.
The Mullins report was predicated upon an assumption that the financial material that he was provided with and upon which he based his conclusions and proffered his opinions, was reliable and could be verified by other evidence. When presented with evidence to the contrary, to his great credit, Mr Mullins readily accepted that there was no basis for him to provide the business valuation that he did.
The Mullins report was also predicated upon assumed alternative factual scenarios which ultimately were not maintainable on the evidence before the Court and which were resiled from by him. In particular, Mr Mullins changed his opinion on UTSG's claim for compensation for "relocation lost profit".
The Ferrier report took the conclusions from the Howman-Giles report, made adjustments to the financial information to excise related transactions, and concluded that the maintainable earnings of UTSG were in fact $nil.
In his report Dr Ferrier provided a summary of potential scenarios available to assess compensation. He outlined four potential scenarios, namely, A through to D, and adopted scenario B on the basis that Ms Singh had essentially transferred the business to Dr Baig (according to her affidavit of 7 May 2018):
By August 2017 the UTSG business had reduced to less than 20% of its pre-acquisition operations. As a result, I restructured UTSG and transferred the relocated part of the practice to Dr Mirza Baig. It is my understanding that the practice at 280-282 Pitt Street operates in a significantly reduced capacity with only 2 doctors remaining, including Dr Mirza Baig. I have no involvement in that practice.
Scenario B considered that the determination of compensation for disturbance for past and future loss suffered by UTSG involved a four-step process: 1. first, determine the market value of the business as at the date of its transfer to Dr Baig; 2. second, determine any lost profits of UTSG in the period before it ceased trading, but while initially affected by the acquisition. This was the difference between expected and actual profits; 3. third, determine the costs associated with relocating the business to 280 Pitt St before its transfer to Dr Baig; and 4. fourth, deduct any consideration received from Dr Baig.
Scenarios C and D were premised on the assumption that the business would either relocate or had been relocated. Dr Ferrier opined that, "the Mullins report assesses compensation under nine different scenarios. Eight of those scenarios fall within the scenario I have described above as Scenario C, and the other is the scenario I have described above as Scenario D. Mr Mullins does not include any scenario which involves the extinguishment or cessation of the UTSG business, and he therefore does not attempt to assess the market value of the UTSG business".
In the first joint valuation report, the two valuers agreed that there were matters which "remain uncertain" and "which are critical to the determination of any compensation to which the Applicant may be reasonably entitled". These were: 1. the corporate structure of the UTSG 'group' as at the date of compulsory acquisition, including the identity of any company in which UTSG held an interest; 2. the nature of the activities undertaken by UTSG, including whether UTSG in fact conducted a medical and health-related services business (as opposed to a commercial property development, maintenance and management business); 3. the nature of any activities undertaken by any entities that were related to UTSG; 4. the commercial relationships between UTSG and entities that were related to UTSG; 5. the sequence of relevant events occurring between the commencement of the negotiations for the purported sale of UTSG's business to 5G and the transfer of UTSG's business to Dr Baig in August 2017; 6. the "performance and business projections" referred to in cl 4.3 of the Business Sale Agreement; 7. the status of the Business Sale Agreement; and 8. whether there was accurate, verifiable and reliable historical financial information for UTSG.
Mr Mullins and Dr Ferrier further agreed that "the appropriate method for assessing claimed compensation under s 59(1)(f) [of the Just Terms Act] for past and future loss of profits is reflected in Dr Ferrier's scenario B", and that the four components of the process described above were correct.
The business valuation experts disagreed on: 1. the future maintainable earnings as at 31 August 2017 but for the compulsory acquisition; 2. the expected profit compared to the actual profit of UTSG from 1 November 2017 to 31 August 2017; 3. tax credits; 4. the costs claimed to have been incurred by UTSG; and 5. the discount rate/capitalisation rate (the experts disagreed on the specific business risk premium).
Mr Mullins confirmed orally that he agreed with Dr Ferrier that only scenario B was the correct scenario and that he had "moved on" from the assessment undertaken by him in the Mullins report (T862:16-26). Scenario B had produced the number set out in the claim for "past loss" of $9,110,410, which included $2,120,893 of "wasted relocation costs" (see Table 25 at paragraph 5.96 of the Mullins report and the now heavily qualified paragraph 5.4 of that report). In the result, there was no expert evidence to support UTSG's claim for "relocation lost profits".
The underlying material used by Mr Mullins as the basis for his calculations (and therefore the evidence said to support UTSG's claim for compensation) was the material he referred to in the appendices to his report. However, the $9 million "relocation lost profits" claim (citing footnote 70, Appendix 5) was, for example, based upon unreliable financial information provided by UTSG. Appendix 5 of the Mullins report does not therefore establish any loss by UTSG and is, in my opinion, inadequate to permit the Court to accept as correct Mr Mullins's conclusions. For a more detailed explanation of the difficulties inherent in Appendix 5 to the Mullins report see below (at [354]).
Furthermore, in the absence of reliable evidence of UTSG's historic financial performance (see the Howman-Giles report), neither the past nor future loss of the company can be determined. As is established below, such evidence does not exist.
Dr Ferrier's damning conclusion was that: 14.11 In my opinion: (a) Had the compulsory acquisition not occurred, UTSG would have had no valuable business goodwill as at 31 August 2017, both because there is no evidence that UTSG was capable of deriving a profit from its business activities and because there is no evidence that UTSG owned any medical services business which it was capable of selling; (b) There is no reliable evidence to ascertain the actual profits of UTSG during the period after October 2016, and there is therefore no evidence that the loss suffered by UTSG during the period after October 2016 was any greater than the loss it would have suffered had the compulsory acquisition not occurred; and (c) It is reasonable to conclude that the fair market value of the business assets transferred to Dr Baig (assuming that UTSG had a legal or equitable interest in those assets) was at least equal to the costs of the fitout at 280 Pitt Street Sydney (assuming that the costs of that fitout were incurred by UTSG). 14.12 It is therefore my opinion that there is insufficient reliable evidence to establish that UTSG is entitled to any compensation under section 59(1)(f) of the Just Terms Act in relation to past and future losses.
A similar refrain appeared in the first joint valuation report where it was noted that: 1.5 This Joint Report is structured to identify the matters on which the Experts agree and the matters on which they disagree. This report also expresses Mr Mullins' calculation of compensation. This report does not include a calculation of compensation by Dr Ferrier because Dr Ferrier considers that there is insufficient reliable information on which to base any reasonable expression of opinion. Dr Ferrier may be in a position to express an opinion after the joint expert report of Messrs Howman-Giles and Watts becomes available.
And moreover, that: 3.4 In Dr Ferrier's opinion, Mr Mullins' assumption that the "the [sic] underlying financial information is accurate, verifiable and reliable" is not an assumption which can reasonably be made at this time, for the reasons set out by Mr Howman-Giles in his report dated 16 August 2018, including: i) The financial and business records are incomplete; ii) The financial information is apparently prepared on inconsistent bases (accrual accounting for revenues and cash accounting for expenses); iii) There are inconsistencies in relation to revenue and cost of goods sold categories; iv) The financial records are inconsistent with the terms of Practitioner Service Agreements; v) There are a number of inconsistent versions of the financial records and it is therefore not possible for all of those records to be accurate; vi) It is not possible to verify the accuracy of the financial records, and Mr Howman-Giles' attempt to do so indicates that those records are likely to be inaccurate and unreliable. 3.5 Dr Ferrier also notes that, in Mr Mullins' letter dated 21 August 2018, Mr Mullins identified a range of materials which he would require in order for him to form an opinion. In substance, those materials would enable Mr Mullins (or another expert) to independently verify each item of reported revenues and expenses. Alternatively, Mr Mullins suggested that the UTSG financial information could be subject to an independent audit by a large audit firm or by a larger mid-tier audit firm. None of those materials have been provided and no audit has been conducted. 3.6 In Dr Ferrier's opinion no reasonable prospective purchaser of the UTSG business would assume that the financial records provided to Mr Mullins constitute a reasonably reliable basis for assessing the value of the UTSG business.
Both Dr Ferrier and Mr Mullins agreed as at the date of the first joint valuation report that: 2.1 The Experts agree that there are a number of key factual matters that, as at the date of this report, remain uncertain. These matters, which are critical to the determination of any compensation to which the Applicant may be reasonably entitled, are: i) The corporate structure of the UTSG "group" at the date of compulsory acquisition, including the identity of any company in which UTSG held an interest at the date of compulsory acquisition; ii) The nature of the activities undertaken by UTSG, including whether UTSG in fact conducted a medical and health-related services business (as opposed to being a 'commercial property development, maintenance and management' company as stated by Mr Howman-Giles); iii) The nature of any activities undertaken by any entities that are related to UTSG; iv) Any commercial relationships between UTSG and entities that are related to UTSG; v) The sequence of relevant events which occurred between the commencement of negotiations for the sale of the UTSG business to 5G General Trading LLC and the transfer of the UTSG business to Dr Baig in August 2017; vi) The "performance and business projections" referred to in clause 4.3 of the contract for sale of the business to 5G General Trading LLC dated 1 November 2015; vii) The status of the contract for the sale of the business to '5G General Trading LLC'; and viii) Accurate, verifiable and reliable historical financial information for UTSG.
Critically, Mr Mullins noted that he "does not express an opinion on the accuracy of the financial information that he was provided and instructed to rely upon" (at paragraph 3.1 of the first joint valuation report).
This was because, as Mr Mullins set out in the first joint valuation report: 6.7 Subsequent to preparing DM1, Mr Mullins received an affidavit sworn by Mr Muhammad Fahad ('Fahad Siddiqui') dated 28 June 2018. In this affidavit, Mr Siddiqui outlined the process that he undertook in preparing UTSG's financial statements. This process involved: i) Obtaining revenue figures from reports generated by UTSG's medical practice software ('Work Done by Doctor Reports); ii) Calculating UTSG's share of that revenue (based on revenue splits for each Doctor/service); and iii) Deducting expenses based on UTSG and Ms Singh's bank account. 6.8 Mr Mullins has not been provided with the material relied upon/prepared by Mr Siddiqui nor was he instructed to review or comment upon it. 6.9 Further, and on 18 August 2018, Mr Mullins was provided with an expert report of Mr Howman-Giles of KPMG. The Howman-Giles report raised a series of questions regarding the veracity of the financial statements that were prepared for UTSG and provided to Mr Mullins. Following receipt of the Howman-Giles report, Mr Mullins withdrew the opinion expressed in his report of 29 March 2018 and, in so doing, (in light of the matters raised in the Howman-Giles report) expressed the view that he was not able to offer an opinion on the loss claimed to have been suffered and/or the value of UTSG. 6.10 Mr Mullins has not been instructed to review or respond to the Howman-Giles report. Rather, Mr Mullins understands that another expert (Mr Watts) was engaged to respond to the matters raised in the Howman-Giles report. 6.11 Mr Mullins understands that Mr Watts and Mr Howman-Giles are undertaking (or due to be undertaking) an expert conclave and are due to lodge their joint expert report by 1 February 2019. 6.12 Mr Mullins notes, therefore, that given that he expresses no opinion on the reliability of the financial information that he has been provided, the calculations that he sets out within this report assume that the financial information that he has been provided is accurate. To the extent that Mr Watts and Mr Howman-Giles reach an agreed position in their joint report, Mr Mullins may need to update his calculations. Similarly, to the extent that the Court was to prefer the evidence of one of Mr Watts or Mr Howman-Giles over the other, then it stands to reason that Mr Mullins would also need to update his calculations. To the extent that Mr Howman-Giles assessment was preferred by the Court in full, then Mr Mullins agrees with Dr Ferrier's opinion regarding the loss claimed to have been suffered as set out by Dr Ferrier in RF1. 6.13 Mr Mullins notes that included in RF1 (Annexure E) are extracts of a number of emails regarding the dental business that had operated from UTSG's premises. Whilst the context within which these emails were written is not clear, it appears that the dental business was non-performing and was scheduled to be (or was) closed. It appears from this email correspondence that this occurred independently of (and was unrelated to) the compulsory acquisition.
The evidence did not improve for UTSG in the second joint valuation report, which was concerned with the extent to which the contents of the joint report by Mr Howman-Giles and Mr Watts dated 31 January 2019 affected the opinions expressed in the first joint valuation report.
As the second joint valuation joint report succinctly put it: 3.2 Dr Ferrier confirms that: i) in the absence of accurate, verifiable and reliable information, he remains unable to form a reasonable opinion on the maintainable earnings of UTSG; ii) on the basis of the information provided by Mr Howman-Giles as to the cash flows of UTSG, the business was not cash flow positive as at the date of compulsory acquisition and therefore had no value beyond the fair market value of its tangible assets (which were not compulsorily acquired). 3.3 Mr Mullins confirms that: i) he continues to rely upon the opinion of Mr Watts that the financial information provided to Mr Mullins is accurate, verifiable and reliable; and ii) if the Court accepts the opinion of Mr Howman-Giles as to the cash flows of UTSG, the business was not cash flow positive as at the date of compulsory acquisition and therefore had no value beyond the fair market value of its tangible assets (which were not compulsorily acquired)…
Whereas the Watts report was rejected by the Court, the opinions proffered in the Howman-Giles report may be accepted (the content of the report was not seriously challenged by UTSG in cross-examination). It therefore remained the fact that the financial information provided by UTSG, including the information given to Mr Mullins upon which he relied and based his calculations, was neither verifiable nor reliable, and therefore, as Dr Ferrier concluded (and which I accept), as at the date of the acquisition UTSG was neither cash flow positive nor had any market value. Put another way, there was nothing to compensate.
Notwithstanding that the joint report of Mr Howman-Giles and Mr Watts was not received into evidence following the rejection of the Watts report, the following matters in that report were considered relevant by Mr Mullins and Dr Ferrier in their second joint valuation report: 2.1 The following relevant matters have been agreed in the Howman-Giles and Watts Joint Report: i) The financial statements relied upon by Mr Mullins cannot be verified to appointment or transaction level practice management reports (HGWJR, paragraph 4.1.14) ii) The Quickbooks general ledger information is not consistent with the financial statements relied upon by Mr Mullins (HGWJR, paragraph 4.1.16) iii) Sales transactions recorded in the Quickbooks General Ledger and Sales Report are not verifiable to cash transactions in the bank statements of UTSG or related entities (HGWJR, paragraph 4.1.19) iv) UTSG has significant receivables balances that are not reflected in the financial statements relied upon by Mr Mullins (HGWJR, paragraph 4.1.21) v) A more reliable method for estimating past cash flows (or EBITDA) of UTSG from operating its business at 40 Park Street, Sydney is on the basis of UTSG cash transactions provided by bank statements of UTSG and related parties (HGWJR, paragraph 4.1.28). [footnote omitted] vi) The financial information relied on by Mr Mullins is not supported by cash flows in UTSG and related entity bank statements in the Briefed Materials (HGWJR, paragraph 4.1.30). vii) It is relevant to consider the consistency between the information relied upon by Mr Mullins and other UTSG financial information (HGWJR, paragraph 5.1.2) 2.2 Messrs Howman-Giles and Watts did not agree as to whether the financial information relied upon by Mr Mullins was accurate, verifiable and reliable and, therefore whether that information is appropriate as a basis for assessing the future profitability of UTSG. 2.3 Mr Mullins and Dr Ferrier note that in HGWJR Mr Watts appears to address the question of whether the financial analysis undertaken by Mr Mullins is verifiable and reliable, rather than the question of whether the underlying information is verifiable and reliable (see HGWJR paragraphs 5.1.2, 5.1.3, 5.1.4 and 6.2.9). Mr Mullins and Dr Ferrier agree that this is of no consequence for the purposes of this Second Joint Report JER2.
It was noted in the second joint valuation report that because Mr Howman-Giles and Mr Watts did not reach agreement in their joint report as to whether the financial information relied upon by Mr Mullins was "accurate, verifiable and reliable, no substantial amendments" were required to the first joint valuation report.
Nevertheless, and to reiterate, Dr Ferrier confirmed that, in his view, the business was not cash flow positive and had no market value, and Mr Mullins confirmed that if the Court accepted the opinion of Mr Howman-Giles as to the cash flows of UTSG (which it does) then his opinion mirrored that of Dr Ferrier (see above at [280]).
Mr Mullins's oral evidence was identical, that is, that in the Mullins report he accepted the accuracy and reliability of the material given to him, including the financial spreadsheets appended to his report (Appendices 5 to 15) (T870:33-871:37): EASTMAN: You've read all the information in this case to which I've referred before, the Watts' report and the Howman‑Giles' report? WITNESS MULLINS: I've ‑ yes, I have, yes. EASTMAN: When you put a business specific risk on this and created your discount rate back in March 2018, you didn't have that information? WITNESS MULLINS: No, I didn't. EASTMAN: And as a matter of generality, there is a decision that you have to make about the interaction between reliability of the records, like how long you've got? WITNESS MULLINS: Yes. EASTMAN: The volatility built in within those and what that business specific risk will be on those forecast cash flows, there's an interaction between those things? WITNESS MULLINS: Yes. EASTMAN: And in this case from what you've read that there is now in your own opinion, not just relying on anyone else, from the material that you've read, not a sufficient basis for you to apply a proper discount rate to give a business specific risk in this case? WITNESS MULLINS: Certainly I wouldn't I wouldn't make an adjustment to the discount rate that I've assessed to try to correct for the certainly the apparent problems with the records. I would be more inclined to simply not express an opinion at all. EASTMAN: And that's effectively the position that you adopted on 21 August? WITNESS MULLINS: Yes. EASTMAN: In 2018. And I'm asking you now on the basis of what you've read you'd have to maintain that position shouldn't you? WITNESS MULLINS: Yes. EASTMAN: That there is nothing to value based on the unreliability in your own assessment as you sit there in the witness box and the material that you've read? WITNESS MULLINS: Certainly I've not been provided with any information that from which I could form a view that that wasn't the case. EASTMAN: So it's your opinion that there is no ability to assess compensation on this case in accordance with scenario B on the material that you've seen? WITNESS MULLINS: Certainly not based on the information I've been provided. EASTMAN: Yes thank you. Those are my questions for Mr Mullins.
In its closing submissions, UTSG submitted that Mr Mullins's evidence ought to be preferred over that of Dr Ferrier because "Mr Mullins performed independent analysis of UTSG financials prepared by Mr Fahad". But this submission is inconsistent with Mr Mullins's own evidence about the work that he carried out and the assumptions that he made about the reliability of the financial information presented to him. Neither his cross-examination nor the submissions made by UTSG about Dr Ferrier's reports (including the joint valuation reports) justify qualifying or placing anything other than full weight on the opinions that Dr Ferrier expressed.

The Relocation Evidence Relied Upon by UTSG

Given that a significant proportion of the compensation claimed by UTSG related to the "wasted" and "future" relocation costs of the business, it is necessary to further examine the evidence relied upon by UTSG in support of its claims in this regard.
In addition to the expert evidence outlined above, the evidence in relation to the alleged relocation relied upon by UTSG arose from: 1. the lay evidence of Ms Singh; 2. the Allsopp report (notwithstanding that Mr Allsopp was not called by UTSG at the hearing); and 3. the Mullins report.
As was characteristic of Ms Singh's evidence, the lay evidence on relocation was inconsistent, confusing and relevantly untrue. An analysis of the evidence leads inexorably to the conclusion that, even if the principal business activity of UTSG at 40 Park St was (contrary to that stated in its 4 March 2016 Business Profile Questionnaire) that of an integrated medical practice, there was no relocation of that business in the necessary sense under Just Terms Act. Rather, it was gifted to Dr Baig.
In Ms Singh's June 2018 affidavit, she said that she "transferred the relocated part of the practice to Dr Baig for no consideration" including relocating its putative "45,000 active patients' database for essential patient continuity of care to 280-282 Pitt St". Further, the Deed of Settlement and Release dated 17 January 2018 between Ms Singh, UTSG and Dr Baig, and other related entities, contained a clause to the effect that any interest that UTSG has in the 280 Pitt St business was transferred to Dr Baig.
What was relocated and what survived remained unexplained in these inconsistent accounts.
The evidence does not establish therefore that UTSG, as the holder of the lease, was or is being relocated, as is required by s 59(1)(c) of the Just Terms Act, or that UTSG made any actual use of the land as is required by s 59(1)(f) of that Act when 40 Park St was physically occupied between January 2014 to January 2017, by: 1. medical practices of various doctors (who appear to be general practitioners) including Dr Baig, Dr Thomas Springer, Dr Michael Cavanagh, Dr Vijayendra Desai, Dr R Peach, Dr James Vandeleur; and 2. the part-time dental practice of Dr Hsiau located on the first floor.
These practices operated through various companies other than UTSG. UTSG did not employ any staff. There was no physical presence by UTSG and there is no evidence of its activities being physically carried out from 280 Pitt St. There was not only no evidence that UTSG conducted any operations from 280 Pitt St, the evidence was in fact to the contrary, namely, that Dr Baig through Arys Health conduct business from 280 Pitt St.
An additional relevant factor arising from the evidence is that the original fitout of 40 Park St was (as is held below at [318]-[327]) undertaken by a different company than UTSG, namely, UTSG Consortium, which went into liquidation just after the fitout was completed and the lease of the premises was thereafter transferred to UTSG. There is no evidence of any works carried out by or on behalf of UTSG.
Because UTSG did not pay for the original fitout, its claim for a new fitout cannot be characterised as that which would be "reasonably incurred" for the purposes of s 59(1) of the Just Terms Act (whether under s 59(1)(c) or (f)).
Finally, as is discussed in greater detail below, no evidence was properly advanced by Ms Singh to establish what costs were actually incurred by UTSG in relocating. UTSG cannot demonstrate actual payments, verified by bank records, receipts or any acknowledgements by non-related parties, for any move to 280 Pitt St. In short, there is no factual basis to permit an award for compensation for the alleged relocation of UTSG to 280 Pitt St as claimed.

With One Exception UTSG's Claim for Compensation is Rejected

Claim for Legal and Valuation Fees

As stated earlier in this judgment, UTSG's claim for legal costs in its amended points of claim under s 59(1)(a) of the Just Terms Act was for "$(an amount to be confirmed)". Under s 59(1)(b) of that Act, UTSG's pleaded claim for valuation fees was $178,640.
The Applicants' Schedule of Disturbance under ss 59(1)(a)-(e) set out a claim for $137,516.76, comprising legal fees of $85,596.76 and valuation fees of $51,920. That Schedule was supported by invoices.
Sydney Metro did not seek to cavil with the amount of $137,516.76.
In the absence of the Court being taken by UTSG to evidence supporting a claim for valuation fees of $178,640, or any evidence to support a different amount of compensation for legal costs, I accept the sum (rounded up) of $137,518 for legal and valuation fees.

Claim for "Wasted Relocation Costs"

UTSG's amended points of claim sets out a claim for "wasted relocation costs" in the amount of $2,120,893 under either s 59(1)(c) or (f) of the Just Terms Act. The sum derives from the Mullins report and consists of two parts: $1,035,393 for "repair and maintenance"; and $1,085,500 for "relocation project".
UTSG claimed that it has wasted these relocation costs because it carried out a partial relocation of only part of its business to 280 Pitt St.
Sydney Metro contended that the claim cannot be accepted because: 1. first, UTSG did not relocate to 280 Pitt St, rather some other unrelated entity, namely, Arys Health, did; 2. second, UTSG did not fitout 40 Park St so the costs of relocation cannot include the costs any new fitout; 3. third, the costs claimed under s 59(1)(c) are not in connection with the relocation of persons entitled to compensation under that provision; 4. fourth, the claims made pursuant to s 59(1)(f) do not arise from UTSG's actual use of the land, nor would they be reasonably incurred because UTSG did not fitout the premises at 40 Park St, and therefore, the loss is not a direct and natural consequence of the acquisition; and 5. fifth, even if UTSG was legally entitled to such costs under the Just Terms Act, they have no basis in fact. That is, there is an absence of cogent and reliable evidence of their quantification in light of the problems associated with the Mullins report (as discussed above).
For the reasons explained below, Sydney Metro's submissions must be accepted.

There Was No Relocation of UTSG to 280 Pitt St

Apart from Ms Singh's assertions to the contrary, which for the reasons given above cannot be accepted, there is no credible evidence that UTSG in fact relocated to 280 Pitt St.
First, during a site visit to 280 Pitt St the Court observed a sign stating "Arys Health" outside a chemist, at the back of which was a bulk billing medical practice.
Second, the current business address of UTSG is, according to Ms Singh, 151/110-116 Sussex St, Sydney, NSW (T298:34-42).
Third, according to UTSG's Business Profile Questionnaire dated 4 March 2016, the business of UTSG is that of property management, whereas the business at 280 Pitt St is a medical practice.
Fourth, UTSG's business was transferred to Dr Baig for no consideration. As Ms Singh stated in her May 2018 affidavit at paragraph 79: By August 2017 the UTSG business had reduced to less than 20% of its pre-acquisition operations. As a result, I restructured UTSG and transferred the relocated part of the practice to Dr Mirza Baig. It is my understanding that the practice at 280-282 Pitt Street operates in a significantly reduced capacity with only 2 doctors remaining, including Dr Mirza Baig. I have no involvement in that practice.
This fact was agreed to by Ms Singh during cross-examination (T355:24-356:06): Q. You agree that you and UTSG, and a series of other parties, all agreed by this deed to transfer all and any legal and/or equitable interest they may have in the medical practice to the release or for nil consideration. A. Yes. Q. And if you go back to the defined terms on page 11858, you'll see that "medical practice" means that the business, including goodwill, patient records, financial records, plant equipment, tenant's fixtures and all property in the premises as at the date of this deed operated from 280 Pitt Street, Sydney by the releasor. Do you see that? A. That's what ‑ yes. Q. And you understood that any interest that you may have had, or may have asserted, in the practice at 280 Pitt Street was transferred to Dr Baig for nil consideration by this deed effective 17 January 2018; right? A. For the medical practice, yes. Q. For the medical practice as defined? A. Yes. For medical practice, which is 10% of the business. Q. There was no relocation at all of UTSG's business to 280 Pitt Street at any time, was there? A. No. Q. You agree with me? A. No. I don't agree with you. Q. To the extent that UTSG did relocate on your version of the facts, it transferred any interest it had in 280 Pitt Street to Dr Baig for nil consideration in January 2018 as part of this deed of settlement; correct? A. In that context, yes, but there are other ‑ other paragraphs within that. It's not just specifically relied upon that particular ‑ so it is one of the statement, but not on all the conditions.
The evidence is consistent with the business at 280 Pitt St being operated by Dr Baig through Arys Health, a company unrelated to UTSG, which Dr Baig either controls or is associated with.
Although the above fact was denied by Ms Singh, I find her testimony in this regard to be untruthful. It is inconsistent with the corporate records for Arys Health, which demonstrate that UTSG did not become a shareholder in Arys Health until 5 January 2019, after the acquisition date (T338:03-341:18): Q. Now, the sign outside the Pitt Street premises says, "Doctor", and there's a logo for, "Arys", A‑R‑Y‑S Health, being correct? A. Yes. Q. In 2017 and 2018, Arys Health was Dr Baig's company, wasn't it? A. No. Arys Health was created in August of 2017, specifically, for the purpose of 280 Pitt Street, because we could not operate in that compromised state of the V Health trademark and branding, so, Arys Health was not a company prior to that. It was a company that was created specifically for the purpose of 280 Pitt Street for protection of reputation and branding of V Health Plus. Q. UTSG did not own or control Arys Health in 2017 or 2018, did it? A. When it was created‑‑ Q. Could you answer that question yes or no, if you can? A. I just need to cast my mind. I don't have memory to the micro level, at this stage. HER HONOUR Q. If you were thinking, that's fine, you can certainly think, but, perhaps, don't think out loud, Ms Singh, if it's not an answer to the question? A. I ‑ I certainly ‑ I can ‑ I know that Arys Health was created as a new entity for the purpose of 280 Pitt Street. Whether, in terms of creating that was linked to UTSG or the structures and so on, I don't know, but I do hold joint partnership in that company with Dr Baig and Dr Baig, as you mentioned yesterday, he and I are in a relationship, so, what is Dr Baig's and what is mine belongs to each other. LANCASTER Q. Now, Ms Singh, I want to suggest to you that you answered that question using carefully chosen language because you know very well that UTSG did not own or control Arys Health in 2017 or 2018; do you agree with that? A. UTSG has controlled ‑ if it's not UTSG, it is controlled by me as UTSG and Dr Baig as UTSG Arys Health and V Health has been a thoughtful vision and development and the brand name is trademarked. The products are patent. So, it is ‑ it was not possible ‑ and I think the predominant issue there was that we could not carry the V Health accreditation to 280 Pitt Street because it's location specific and the accreditation would not ‑ is not an easy process to obtain. It takes a lot of audit, clinical reviews and all of those things and that practice was not, at that point in time, accredited, so we had to ran it under new name and just Arys Health, but you would have noticed on that board, as well as, that it had the same phone number as 280 ‑ as 40 Park Street, 0281 882 299. So‑‑ Q. I didn't notice that, Ms Singh, and you didn't point it out? A. I didn't need to point it out, but if you see the ‑ on the brand, it is using ‑ it is using the same phone number of V Health UTSG which is 81 88 22 99 and if you have got access to website you can see Arys Health is using this thing. Q. In January 2019, UTSG became one of the shareholders of Arys Health, didn't it? A. I don't know. The accountants have to answer those questions for you, Mr Lancaster. You need to ask me the questions I can answer. I don't know. I have ‑ I have ‑ I have had no kind of understanding of how the ASIC records operate until I found so many different creations of aliases and names until about ‑ so, I know there is ‑ ASIC record needs to updated, but it is not the responsibility ‑ it's not my responsibility. It is the agent who is appointed to manage the ASIC record. I now understand there is an agent to manage the tax records, so‑‑ HER HONOUR Q. Ms Singh, if your answer is, "I don't know", then your answer is, "I don't know"? A. Yeah. So, the answer is I don't know. LANCASTER Q. You added a director pretty efficiently overnight, didn't you, to UTSG? A. No, I did not. That was the accountant adding director. Q. Was it? You know very well that UTSG became one of the shareholders of Arys Health in January 2019? A. It could have been passed through. It has to ‑ our process is to go through a resolution process. And once that resolution is, and I understand that within the 21 days, so it has ‑ 21 or 28 days, it has to be updated. Q. You and Dr Baig adjusted the shareholding of Arys Health in January 2019 so that you could better support your claim for compensation for UTSG that had partially relocated to 280 Pitt Street, that's what happened, isn't it? A. Mr Lancaster, I think you are making a lot of assumptions. Q. No, I'm asking you a question? A. No, we did not. Q. Let me provide you with this document. LANCASTER: I will give Dr Baig a copy too and a copy for your Honour. HER HONOUR: Thank you very much. LANCASTER Q. It is a small number of documents I'm going to ask you about, Ms Singh. There should be on top ‑ the second document in is, perhaps, where I will start? A. Which document? Q. Which is an ASIC current and historical organisation extract from Arys Health‑‑ … Q. So, you have got the Arys Health Proprietary Limited ASIC extract and the date, the top left of the first page of it is 11 May 2018 at 16:50. Do you have that? A. Yes, I have. Q. If you go to the second page, you will see it has a sole director, Mirza Baig and he's the secretary as well. Do you see that? A. Yes. Q. So, at as May 2018, you agree, do you, that Dr Baig was the sole director of Arys Health? A. Yes, according to the ASIC record, yes, it is, and, as I said, Dr Baig and I are partners. We are ‑ but I can see the ASIC record says what it says, yes. Q. Then the shareholding, a company called Timber Blair Proprietary Limited held two shares? A. Sorry, where would I find that? Q. Bottom of the second page? A. I'm sorry, I'm just not following. So, this is the page number 2 or are you referring‑‑ Q. That's the other way to refer to it, yes, page number 2? A. Page number 2 and where am I looking at? Q. The bottom of the page, "Current shareholding", there are only two issued shares in the company. They are both owned in May 2018 by Timber Blair Proprietary Limited? A. Timber Blair? Q. Never heard of it? A. No. I don't know any company in Timber Blair Pyrmont. Q. Then, if you go to ‑ that shows that as at May 2018, you weren't a director or shareholder of Arys Health and UTSG was not a shareholder of Arys Health; correct? A. Mr Lancaster, I have not been involved in the 280 Pitt Street business. I explained that. Not involved in the day‑to‑day ‑ I haven't been really involved in the practice because it's not a place where I to want to go and ‑ and more so for the reason you mentioned the period of May 2018 is ‑ I have provided an explanation of the period where I was in May 2018 and June 2018. So‑‑
When shown ASIC extracts in respect of Arys Health indicating that UTSG had no relationship with it until 5 January 2019, Ms Singh repeated her assertion that "UTSG held entire interest from day 1 of creation of Arys Health and in 280 Pitt Street" (T343:39-344:41): Q. And the date of entry of the member's name; that is, UTSG and V Health Plus International, was 5 January 2019. You accept that? A. Yeah. The earlier exchange date, yes. Q. Before 5 January this year, UTSG did not have any interest in Arys Health Pty Ltd, did it? A. UTSG, Mr Lancaster, Grazah Dildar is associated with Dr Shakoor, and Dr Shakoor‑‑ Q. Please answer my question, Ms Singh. A. No. Let me just answer your question in a context so it's not misunderstood. There is a deliberate decision was taken to create Arys Health, and that in particular ‑ to represent the functions and the relocation of 280 Pitt Street was ‑ we were waiting for or planning for the relocation of the entire V Health Plus. So the 280 Pitt Street was a significantly ‑ probably about 10% of the business, and as I've said, our decision has been really driven by the two extreme factors of, one, you can't operate ‑ V Health Plus was an accredited practice. You cannot operate as V Health Plus‑‑ HER HONOUR: You really aren't answering Mr Lancaster's question, with respect. Again, it's‑‑ WITNESS: So in terms of what you're saying, according to the ASIC record, you are asking me that it was not a UTSG company. LANCASTER Q. Please just answer my question, Ms Singh. It was clear, I think. If you don't understand it, tell me. Before 5 January 2019, UTSG did not own any interest in Arys Health Pty Ltd. Do you agree with that? A. No. UTSG held entire interest from day 1 of creation of Arys Health and in 280 Pitt Street. Q. That's a lie, isn't it? A. No. That's the truth. Q. When I was taking you through the documents, the company that's referred to in the ASIC records as the shareholder of Arys Health in May last year, May 2018, was Timber Blair Pty Ltd, and you were noticeably surprised when you read that because it was not a name that you recognised; correct? A. That is true. I do not know, and I don't know which is still there, but I absolutely know that we created Arys Health for the purpose of 280 Pitt Street, and Arys Health would not have existed prior to ‑ about August of 2017 or probably July. Q. Do you agree that the only thing that the Court has to support that contention of yours is what you say in the witness box? There is not a single document to support your claim that UTSG had any interest in Arys Health before January 2019. Do you accept that? A. And what I am telling you is‑‑ Q. Do you accept that? A. Yes, I do accept that that's the only evidence, but‑‑
There is, however, no documentary evidence to support the claim that UTSG had any interest in Arys Health before 5 January 2019. On the contrary, the evidence demonstrates that as at the date of acquisition Arys Health operated from 280 Pitt St and was unrelated to UTSG. It appears that, and I accept that, the change in the ownership of Arys Health on 5 January 2019 was a device to strengthen UTSG's claim for compensation for "wasted relocation costs".
Fifth, the Court was taken to no evidence establishing that income has been derived by UTSG through any business being conducted by it at 280 Pitt St.
Sixth, the Court was taken to no evidence establishing that UTSG, or anyone on its behalf, made any payments connected to the relocation of its business to 280 Pitt St.
In the absence of establishing that UTSG in fact relocated to 280 Pitt St, UTSG cannot claim for "wasted", or any, relocation costs, under s 59(1)(c) or (f) of the Just Terms Act.

UTSG Did Not Pay for the Fitout of 40 Park St

Sydney Metro submitted that UTSG ought not be entitled to the costs of fitting out any new premises pursuant to s 59(1)(c) of the Just Terms Act. This is because the fitout costs of 40 Park St were not incurred by UTSG, but were incurred by UTSG Consortium, and therefore, UTSG did not reasonably incur those costs as required by the provision.
The submission may be accepted. First, as the evidence disclosed, it was UTSG Consortium, and not UTSG, that entered into the lease with Gwynvill on 1 March 2013. Contrary to the evidence of Ms Singh, the lease did not extend to the second floor of the building. Moreover, it was UTSG Consortium that contracted with Medbuild in March 2013 to carry out a fitout of 40 Park St. Medbuild carried out that work.
On 15 October 2013 Medbuild served a statutory demand on UTSG Consortium, not UTSG, in the amount of $233,063 for the fitout of 40 Park St. Because UTSG Consortium did not respond to the statutory demand, on 18 December 2013 Medbuild made an application to the Supreme Court to wind up that company. Such an order was made on 3 February 2014 and on 2 August 2015 UTSG Consortium was deregistered.
In closing submissions Dr Baig seemed to suggest that the statutory demand had been erroneously served on UTSG Consortium because UTSG Consortium operated from 92 Pitt St and the demand related to a different fitout. That is, the demand related to a "an incorrect party for an incorrect property" (T1342:34). This submission was, however, inconsistent with contemporaneous documents around the time of the acquisition. For example, in correspondence the liquidator of UTSG Consortium recorded a statement by Ms Singh to the effect that UTSG Consortium did not operate from 92 Pitt St.
Second, there is no evidence that UTSG paid, or agreed to pay, any amount to UTSG Consortium in respect of the transfer of the lease to it (whether for the lease itself or for any of the fitout).
Third, the ASIC Current and Historical Search for UTSG Consortium dated 24 April 2018 states that "Roselyn Singh" was the first director of that company. It may reasonably be inferred that UTSG was created to assume the lease from UTSG Consortium prior to the latter company being wound up and deregistered.
This was put to and denied by Ms Singh (T476:05-477:26): Q. And every single one of these invoices refers to 40 Park Street, doesn't it? A. It does refer to here, but it is not the correct invoice that we have. It was never a UTSG ‑ it was never a Med Build trading ‑ sorry, NuMed trading as Med Build, which is the company that actually took UTSG Consortium to liquidation. So this is the correction I am trying to make. The company that actually took UTSG Consortium to liquidation was NuMed trading as Med Build, not Med Build Pty Ltd. They're two different companies. Q. Do you accept that the explanation you've attempted to put forward is inconsistent with the order of the Supreme Court winding up UTSG Consortium? A. The order of Supreme Court winding of the ‑ it says that it was made in favour of NuMed trading as Med Build, not Med Build Pty Ltd. That I can see. So does that answer your question? So the wind up of UTSG Consortium relates to creditors, if I can make that clear ‑ it relates to creditors of ‑ who are from 92 Pitt Street, Sydney, and the applicant for wind up of UTSG Consortium is NuMed trading as Med Build. What you have shown me is invoices from Med Build Pty Ltd. It's a propriety limited company, not trading as NuMed. Q. I'll get that volume back from you, Ms Singh. A. Just one more thing ‑ I just needed to read that‑‑ HER HONOUR: No. Ms Singh, you've given your answer. Thank you. LANCASTER Q. Just before UTSG Consortium was wound up in February 2014, it transferred this lease of 40 Park Street to UTSG, didn't it? A. No. It did not. Q. And UTSG did not pay UTSG Consortium anything for the lease or for the fit‑out, did it? A. UTSG owned the fit‑out for 40 Park Street in entirety. UTSG paid for every dollar that was spent at not only 92 Pitt Street but at 40 Park Street as well. Q. That's simply not the case, is it? Because UTSG Consortium paid for part of the fit‑out before it was wound up. A. Mr Lancaster, the‑‑ Q. Do you agree with that or not? I'm not asking for a speech? A. I do not agree with you at all. Q. UTSG Pty Ltd was simply a Phoenix rising from the ashes of UTSG Consortium, wasn't it? A. I have no idea what is Phoenix. Can you please explain that to me? Q. UTSG had in after January 2014 acquired a lease and a fit‑out that it had obtained for free? A. That's not true. Q. And it obtained the lease and fit‑out for free while the creditors of your former company, UTSG Consortium, never saw hundreds of thousands of dollars owed to them. That's what happened, isn't it? A. No. Q. In your points of claim, which we'll provide you with a copy of, these go to paragraph 6. Do you have that? A. Yes. Q. Do you see in the particular in paragraph (ii) in paragraph 6 of your points of claim, the company claims ‑ that is, the applicant ‑ carried out and paid for all constructions, fit‑out and improvement to the premises which you have defined as "the refurbishment". Do you see that? A. That is correct. Q. The applicant did not pay a cent for the fit‑out of the premises, did it? A. That is not correct. Q. UTSG paid for some of it, and then went insolvent, and no‑one paid the builders for the balance. A. UTSG paid in accordance with to point number 2, paid out for all constructions, fit‑out and improvements to the premises, and that is correct.
It is not strictly necessary for the Court to find that UTSG was, as was put to Ms Singh in cross-examination, a phoenix company created to fill the void left by UTSG Consortium's demise. It is sufficient for me to reject Ms Singh's claim that UTSG paid for the fitout of 40 Park St - which I do - in light of the contrary evidence referred to above.
UTSG therefore took the benefit of UTSG Consortium's fitout at no cost to it. It would neither be reasonably incurring costs to relocate to premises with a similar (that is, as Ms Singh described, "like for like") fitout, nor would it be reasonably incurring costs to provide a fitout of new premises, in circumstances where it had not incurred these costs in the first place.
UTSG referred to a purported loan agreement between it and Ms Singh dated 1 July 2011. However, that agreement is no more than a framework agreement that provides general terms that may be applicable in subsequent agreements to specific loan monies. It does not establish that UTSG paid for any part of the fitout at 40 Park St, whether by loans advanced by Ms Singh to the company or otherwise.

The Wasted Relocation Costs Were Not in Connection With UTSG

For the reasons given above, it can also be concluded that the wasted relocation costs claimed under s 59(1)(c) of the Just Terms Act were not in connection with the relocation of those persons entitled to compensation, namely, UTSG.

The Wasted Relocation Costs Were Not a Direct and Natural Consequence of the Acquisition

Sydney Metro submitted that to the extent that UTSG claimed wasted relocation costs pursuant to s 59(1)(f) of the Just Terms Act, the costs did not arise from UTSG's actual use of the land, irrespective of whether or not they were reasonably (or might reasonably be) incurred as a direct and natural consequence of the acquisition.
To reiterate, UTSG did not have a physical presence at 40 Park St. Nor did it have a physical presence at 280 Pitt St. At no point did UTSG in fact move to 280 Pitt St.
The phrase "actual use of the land" in s 59(1)(f) of the Just Terms Act refers to the use by the dispossessed owner at the time of the compulsory acquisition. The use must exist in fact at that time. It cannot be a proposed future or potential use. In G Capital Corporation Pty Ltd v Roads and Maritime Services [2019] NSWCA 234 ("G Capital Corporation") the Court of Appeal stated as follows (at [19]): 19 As to the "actual use" of land to which s 59(1)(f) refers, in Almona Pty Ltd v Roads and Traffic Authority of New South Wales [2008] NSWLEC 112 at [60]; (2008) 160 LGERA 375, Jagot J correctly observed that it is the use by the dispossessed owner at the time of the compulsory acquisition, and not a use of the land by the acquiring authority. Furthermore it was earlier held by this Court that the reference to "actual" use emphasises that the use must exist in fact at the time of acquisition, rather than be a proposed future or potential use: Blacktown Council v Fitzpatrick Investments [2001] NSWCA 259 at [26]-[27] (Brownie AJA, Stein JA and Ipp AJA agreeing); applied in Mir Bros Unit Constructions Pty Ltd v Roads & Traffic Authority of New South Wales [2006] NSWCA 314 at [88]. More recently, in United Petroleum at [11], Basten JA (Macfarlan and Payne JJA relevantly agreeing) observed as to the expression "actual use of the land": The second constraint may be found in the need to identify financial costs "relating to the actual use of the land", namely that use to which the land was put at the date of the compulsory acquisition. Residential, agricultural or commercial uses are common examples of actual uses of land and suggest that in this sense the term "land" refers to an area of the earth, rather than a bundle of legal rights.
That case concerned an appeal from a decision of Pain J in G Capital Corporation Pty Ltd; Gertos Holdings Pty Ltd; Marsden Developments Ltd v Roads and Maritime Services [2019] NSWLEC 12 ("Gertos") where her Honour held that because the properties were the subject of leases to retail and commercial tenants there was no "actual use" of the land. The applicants had described their actual use in G Capital Corporation as (at [17]): 17 In this Court, the applicants described that "actual use" at the time of acquisition as being that they: (a) were leasing and receiving rental income from the land; (b) holding the land pending any investment opportunities; (c) were spending money on the land; (d) were employing staff to inspect and go onto the land for maintenance purposes as part of the leasehold responsibility to tenants; (e) had rights of access to and responsibilities for the state of common areas and building maintenance; (f) had rights and obligations under the contracts of sale of the properties pending settlement in June 2018.
The Court of Appeal dismissed the appeal holding that (at [26]): 26 Turning to the actual uses contended for by the applicants which are listed in [17] above, none of the actions or activities in paras (a) to (d) describes an actual use or enjoyment of the land or any area of it by the applicants. They did not themselves occupy the land or conduct any business activities on or from it. As to para (a), in leasing the land and receiving rental income in return, each conferred exclusive rights of occupation on its respective tenants; and the evidence does not suggest that any area of the land was exempted from the tenancies for use by any of the applicants. As to paras (c) and (d), the spending of money on the land for the benefit of the tenants does not describe any use or enjoyment of any area of it by the applicants. Nor does the fact that employees or agents of the applicants may have entered parts of the land for the purpose of conducting inspections or to perform obligations under the lease agreements constitute such use or enjoyment.
In the present case, the physical "actual use of the land" (of 40 Park St) was being carried out by the doctors and by V Health Plus, not UTSG. UTSG had no physical presence at 40 Park St. Furthermore, the relocation costs were not "a direct and natural consequence of the acquisition" because it was Dr Baig and Arys Health that relocated to 280 Pitt St, not UTSG. Finally, the wasted relocation costs were not "financial costs reasonably incurred" because, as explained above, UTSG did not incur the costs of the fitout at 40 Park St, UTSG Consortium did.

There is No Evidence as to the Quantum of the Wasted Relocation Costs

The amount of $2,120,893 claimed by UTSG for its wasted relocation costs was derived from the Mullins report which provided for "costs incurred in relocating to 280 Park [sic] [Pitt] Street" in the sum of $1,035,393.00 for "repair and maintenance" and $1,085,500.00 for "relocation project".
However, Mr Mullins does not refer to any receipts or invoices in his report to establish these amounts. Rather, he stated that "the costs incurred in closing the premises at 40 Park Street, relocating part of the business to 280 Pitt Street, noting that I understand that UTSG ultimately had to abandon this business, and is currently searching for an alternative business premises. I have been advised that the costs incurred were". Reference was made to footnote 5 which states "Appendix 19, Email from Simran Hollins dated 9 March 2018 - regarding relocation costs". The email itself is included in the Mullins report. It is from "rs@yhwh.com.au", is dated 12 March 2018 at 12.35pm, and is signed off "Simran". It provides three monthly figures for "repairs and maintenance" totalling $1,035,393.00. It also provides six monthly figures under the heading "relocation project - deferred invoices", which total $870,500 (not the amount claimed). Why or how these invoices are "deferred" is not explained.
Other than the amounts in the email there are no invoices, costs estimates, emails, correspondence from third parties, breakdown of costs, or bank records, evidencing payment.
A review of the available bank statements indicates that no bank records have in fact been provided which equate to the dates between July 2017 and February 2018 which cover the period that these expenses are claimed to have been incurred or deferred.
In its tender bundle, UTSG included a power-point presentation from April 2017 for "Proposal for Relocation Funding". The document describes an extensive scope of works for future relocation, including significant IT and data works and accompanying large scale individual cost estimates. The document has been prepared by "YHWH Projects", an entity historically controlled by Ms Singh and/or her son, Mr Hollins. There is a document from "Unitech Solutions Group" relating to fitout costs, but it is dated 12 February 2013. It relates to the original fit out by UTSG Consortium of 40 Park St.
UTSG also included in its tender bundle a power-point presentation from September 2016 which it contended was a "project brief" for "UTSG-V Heath Plus Relocation". Reference was made to extensive scope of works for future relocation, including significant IT and data works.
In response to the NTP, UTSG produced a document entitled "UTSG V Health Plus Relocation Program Cost of Services". It suggested that the "total actual invoices for services" which were charged by V Health Plus to UTSG was for $3,245,500. However, this document was not part of the evidence relied upon by UTSG. It was included in the evidence before the Court by Sydney Metro as part of the material produced in response to the NTP. Within it, there is a summary only (not the actual invoices) of nine invoices for what appears to be monthly charges at an hourly rate from April 2016 to May 2018 ranging from $253,000 to $440,000.
There is, however, no evidence that these scopes of work or transactions have in fact occurred. A reasonable inference is that they did not take place. Had the transactions or works occurred, given their importance, it is highly likely that actual invoices would have been included in UTSG's evidence.
Accordingly, the only evidence of the amount claimed by UTSG for wasted relocation expenses is Ms Singh's email referred to in the Mullins report, which given the adverse findings that I have made in relation to Ms Singh's credit, I do not accept as sufficient.
As Sydney Metro submitted, not only is there no reliable evidence to support the amounts claimed, there is contrary material indicating that the sums claimed under the heading of "wasted relocation costs" are not costs that have been, or will be, incurred by UTSG. This material includes: 1. UTSG's failure to disclose bank records for the relevant periods demonstrating the transactions giving rise to the costs; 2. the absence of any contractual material demonstrating that the costs were quoted or charged; 3. the costs said to be incurred by V Health Plus cannot be verified; 4. a transfer of UTSG's business to Dr Baig for no consideration. There is also no evidence that the cost of the fitout of 40 Park St, or any other premises, was incurred by him; and 5. the site visit to 280 Pitt St did not reveal the relocation of any part (claimed by Ms Singh to be approximately 42 or 45 servers) of the "elaborate data centre" said to be present at 40 Park St. When confronted with this reality, Ms Singh again sought to obfuscate and misstate (T356:08-358:48. It must be recalled that Mr Frisken was not called as a witness by UTSG): Q. Now, in your evidence on Friday, I asked you about our site view to 280 Pitt Street. Do you remember that? A. Repeat your question again, please? Q. Do you remember I asked you some questions about our site visit with the Court to 280 Pitt Street? A. Yes. Q. On page 321 of the transcript at line 15, I'll just read you a couple of questions and answers. At line 15 I asked you: "Q. Do you remember on site I asked to show us IT and infrastructure for which you claim more than $1 million. Do you remember me asking you that? A. Yes. You did ask me and I told‑‑ Q. And do you remember your answer? A. Yes. That was infrastructure. The data centre you referred to was installed at 40 Park Street. There's no capacity at 280 to install a data centre of that elaborate nature." You were, by that evidence, intending to tell the Court that you had an elaborate data centre at 40 Park Street, weren't you? A. Yes. And we had a ‑ an elaborate data centre at 40 Park Street. Q. Now, you remember you gave some evidence, and I cross‑examined you in October last year? A. You cross‑examined me. I do not recall the cross‑examination details. Q. I'm going to ask you about part of that. If you provide that folder you've got in front of you back to her Honour, please. HER HONOUR: Thank you. LANCASTER: Your Honour, the transcript from 15 October is in 213 of the Court book. It's in the supplementary court book volume 1, behind tab CB 213A, I think it is. Q. Ms Singh, I'll provide you with a clean copy of that transcript. HER HONOUR: I'm sorry, CB 213A? Do you mean 231A perhaps? LANCASTER: I don't think I mean that, your Honour. HER HONOUR: You don't mean that. You're quite right. Certainly behind my CB 213 I have short minutes of order only. LANCASTER: I'll provide Ms Singh and your Honour with clean copies of the transcript and the tab numbers. I'll give Dr Baig one as well. Q. Ms Singh, in that transcript, could you please go to page 97. A. Yes. Q. Do you see at about line 10, I was asking you about computers that contain electronic records? A. Yes. Q. And at line 12 do you said: "A. As part of our relocation, we relocated a number of ‑ I don't know what it is called ‑ servers. I don't know, the box ‑ the black box that's attached to the PC. We had 45 of those. Some were relocated to 501 George Street, and others were relocated to 280 Pitt Street." Q. Do you see that? A. That is correct. Q. If you go further down the page at about line 35‑‑ A. Yes. Q. ‑‑you seem to say, is this right, about three were relocated to 501 George Street and the rest were relocated to 280 Pitt Street? A. Yes. Q. Then at line 46, after referring to some going to 501 George Street, you said, "But the rest of the data files were absolutely transferred to 280 Pitt Street and it was kept in the safe background of the pharmacy." I asked you, "Kept in the safe back room of the pharmacy?" You said, "Yeah, there's a safe room. There's a safe room and safe security or for we kept it."? A. Yes. Q. When we went on‑site, there was no safe room in the premises at 280 Pitt Street, was there? A. There was. Q. I beg your pardon? A. There is a pharmacy safe room. It's not medical centre safe room. Q. You did not show us any safe room at the back of the pharmacy? A. Because I don't have access to that. Q. You claim to have relocated some 42 servers, that is the black boxes attached to a PC to that room, don't you? A. Yes. Q. How could you do that if you don't have access to it? A. That is the pharmacy control room which not anyone and everyone can have access to. Secured. Q. You didn't mention that on the site visit or show us that on the site visit, did you? A. You did not ask for it. I did not think of it. Q. The evidence you gave in October 2018 about relocating some 42 black box servers to 280 Pitt Street, was false, wasn't it? A. Mr Lancaster, 45 black box and servers related to the computer, which I described was the hard drive at the back of the computer, it was ‑ I don't know if it's called the server for the hard drive, that is something‑‑ Q. I don't mind what you call them, Ms Singh, but 45 items containing electronic records were never relocated from 40 Park Street to 280 Pitt Street, were they? A. Mr Lancaster, it's a question I cannot answer. You could have asked that with the IT person, John Frisken. Q. Where are these 42 servers now? A. I can't answer that. John Frisken would know. Q. You said you can or can't answer that? A. I cannot answer that question. HER HONOUR: Cannot. LANCASTER: All right. Q. Did you not think it important to try and track them down last year while there were significant disputes between the parties about your production of documents? A. I did, Mr Lancaster, and it is not under my control. It is under the control of the CTO, Mr John Frisken. Q. So, you just washed your hands of that issue, did you? A. No. Q. It's over to Mr Frisken? A. That's not true. Mr John Frisken was presented and he provided an affidavit. You said that you did not want to cross‑examine him. Q. Ms Singh, this is just another in a series of untruths that you have spoken about the alleged relocation to 280 Pitt Street, isn't it? A. I absolutely disagree with you.
I have no hesitation in finding that whatever business was being operated at 40 Park St by UTSG it was not relocated to 280 Pitt St. To the extent that Ms Singh gave evidence to the contrary, it cannot be accepted for the reasons already explained in this judgment.
In any event, even if I were satisfied that relocation did occur (which I am not), at the risk of repetition, there is no reliable evidence of the quantum of these costs. The claim for compensation for wasted relocation costs must fail on this basis alone.

The Claim for "Future Relocation Costs" of the Business Must Fail

In its amended points of claim UTSG claimed $1,957,500 (comprising $1,903,939 for relocation costs of the fitout of the premises and $53,561 for "retained plant and equipment fire sale value"), together with "$(an amount to be confirmed)" for future relocation costs of the business. These costs are said to exclude costs associated with business development, professional services, and upfront retainers payable to medical and health practitioners. The claim was made pursuant to s 59(1)(c) or alternatively, s 59 (1)(f) of the Just Terms Act.
UTSG relied on the following evidence: 1. the Allsopp report; 2. "evidence produced by various subpoena by TNSW to Tasly in relation to Medical Practitioner contract entered between Tasly and Dr Mirza Baig. This is an example of upfront retainer costs payable that would be payable, to a medical practitioner but not a specialist medical practitioner or medical director, at relocation, by the Business"; and 3. "the Hypothetical Relocation Costs, served to TNSW (Sydney Metro) in about November 2018, for their consideration as attempt to negotiate and reach a settlement on a 'without prejudice', by the Applicant".
For the reasons already discussed in this judgment the claim for the "future relocation costs for the business" must be rejected because: 1. UTSG did not fitout 40 Park St, and therefore, is not entitled to claim for fitout of alternative premises; 2. UTSG has not relocated to 280 Pitt St, some other entity has; 3. the costs claimed under s 59(1)(c) of the Just Terms Act are not those in connection with the relocation of those persons entitled to compensation, namely, UTSG; 4. no costs were in fact incurred by UTSG in relocating its business and no costs will be incurred by it in the future; 5. to the extent that the claim is made pursuant to s 59(1)(f) of the Just Terms Act, the costs do not arise from UTSG's actual use of the land, nor would they be reasonably incurred given that UTSG did not fitout 40 Park St, and therefore, they are not a direct and natural consequence of the acquisition; and 6. as the evidence establishes, the claimed costs have no basis in fact and their quantification has not been proven.

The Claim for "Relocation Lost Profit" for "Past Loss" is Not Established

The claim for "relocation lost profits" is set out in the amended points of claim under s 59(1)(c) or (f) of the Just Terms Act as follows: Section 59(1)(c)/(f) Relocation lost profit Past loss $9,110,410.00 (includes DM's wasted relocation costs of $2,120,893.00) Future loss assuming at least an 18 month loss $5,971,823.00

The lost profits are said to include: 1. a reduction in profits caused by the acquisition while UTSG was still trading; 2. no profits after it ceased trading up until the recommencement of trading; and 3. reduced profits once operations were resumed but not at full capacity.

There is No Evidence Demonstrating Past Lost Profits

UTSG relied on the Mullins report and the scenarios put forward by him as the basis for its claim for lost profits, both past and future. For relevant purposes, past lost profits are said to commence from 1 November 2016.
The problems inherent in any reliance on the Mullins report given the assumptions that he made about the reliability of the financial records that he was provided with have been discussed above. For present purposes, it is worth recalling that the opinions expressed in the Mullins report were premised not only upon the reliability of the underlying financial information, but also on various factual scenarios. During the course of the proceedings Mr Mullins changed his opinion about the way in which compensation was to be calculated insofar as the "relocation lost profit" claim no longer reflected the scenario originally adopted by him in his report. It was accepted in the first joint valuation report that he and Dr Ferrier agreed that "the appropriate method for assessing claimed compensation under s 59(1)(f) for past and future loss of profits is reflected in Dr Ferrier's scenario B".
The underlying financial material for any calculation made by Mr Mullins was based upon the material referred to in the appendices to his report, such as the $9 million "relocation lost profits" claim at footnote 70 to Appendix 5. Appendix 5 can be criticised as to its accuracy. It neither proves any loss nor does it provide any basis for the Court to accept the correctness of Mr Mullins's evidence. This is because Appendix 5 was provided to Mr Mullins by Ms Singh, and was not the product of independent work by accountants or auditors. The evidence for this finding is: 1. an absence of source documents to verify the contents of Appendix 5 (see also Appendix 15); 2. the explanation for expenses was based on information that Ms Singh provided to Mr Mullins; 3. the purported relocation costs were provided directly to Mr Mullins by Ms Singh; 4. the email exchanges between Ms Singh and Mr Mullins concerning the inconsistencies of the financial records; and 5. that the information provided by Ms Singh included spreadsheets which were headed with the reference "FY2016: Gross Billings - Revenue Report - Audited by LPAA", an entity that does not exist.
Irrespective of the selection of scenario B, Dr Ferrier's evidence was that: 1. in addition to the available financial evidence in relation to the profits of UTSG being unreliable and incorrect (as Mr Howman-Giles attested to), it was likely that the financial information reflected medical services which were not, in fact, provided by UTSG. Rather, it is likely that those services were provided by a number of related entities, none of which were subsidiaries of UTSG; 2. had the acquisition not occurred, UTSG would have had no valuable business goodwill as at 31 August 2017. This was because there was no evidence that UTSG was capable of deriving profit from its business activities and there was no evidence that UTSG owned any medical services business which it was capable of selling; 3. there was no reliable evidence to ascertain the actual profits of UTSG during the period after October 2016, and therefore, there was no evidence that the loss suffered by UTSG during the period after October 2016 was any greater than the loss it would have suffered had the acquisition not occurred; and 4. there was insufficient reliable evidence to establish that UTSG was entitled to any compensation under section 59(1)(f) of the Just Terms Act in relation to past and future losses.
In their second joint valuation report (at section 3.2 quoted above at [280]), Dr Ferrier confirmed that he was unable to form a reasonable opinion about the earnings of UTSG, and that based on the information provided in the Howman-Giles report, as at the date of acquisition, the business was not cash flow positive and had no value beyond the market value of its assets, that were not acquired.
In the same report Mr Mullins confirmed that he continued to rely upon the Watts report, but that if the Court accepted the evidence of Mr Howman-Giles as to the cash flows of UTSG (which it does) then he agreed with the opinion expressed by Mr Howman-Giles as to the value of the business as at the date of acquisition.
Mr Mullins accepted in cross-examination that because the Howman Giles report was in evidence and the Watts report was not, there was nothing to value due to the unreliability of the material provided to him upon which his opinions were predicated (T870:33-871:37, quoted above at [285]).
In other words, the amount claimed by UTSG for "relocation lost profit" (as pleaded) is based on a calculation that Mr Mullins has resiled from.
In summary, the only evidence of business loss is the material in Appendices 5 and 15 of the Mullins report and because these are without foundation, so too are the opinions expressed by Mr Mullins in his report. In the absence of any evidence establishing that any past losses occurred, compensation for such losses cannot be awarded to UTSG. The claim must therefore be rejected.

The Losses Were Not "In Connection With" UTSG Under s 59(1)(c)

Sydney Metro submitted that any claim for loss under s 59(1)(c) of the Just Terms Act could not be maintained because the losses were not in connection with the person entitled to compensation, namely, UTSG, as the holder of the leasehold interest that was acquired.
For the reasons given earlier in this judgment, I agree. The business of UTSG was that of property management as disclosed by it in its Business Profile Questionnaire on 4 March 2016. Evidence of its claimed loss, payments made by it to allow medical practitioners to operate from 40 Park St, is not established on the materials before the Court. That is, UTSG cannot demonstrate any loss suffered that is "in connection" with it, as opposed to some other entity that may have operated its business from 40 Park St.

The Claim for "Relocation Lost Profit" for "Future Loss" Cannot be Maintained

The second aspect of UTSG's claim for "relocation lost profits" is for "future loss assuming at least an 18 months loss" commencing 1 March 2018 (split into various period of time between three months and perpetuity) under s 59(1)(c) or (f) of the Just Terms Act, quantified in the amended points of claim in the sum of $5,971,823 (grossed up).
The reasons why this aspect of its claim cannot be maintained are eight-fold: 1. first, Mr Mullins had projected a future loss captured for various time periods in the Mullins report. UTSG settled on his 18 month projection and used this to claim compensation for future lost profit. There is, however, as is discussed above, no factual basis for such a claim due to the absence of reliable financial information; 2. second, the claim is, moreover, inconsistent with Mr Mullins adoption of Dr Ferrier's scenario B in cross-examination (T861:10-14). Even if the financial information relied upon by Mr Mullins was reliable, which it is not, scenario B assumes a loss up until August 2017, but none thereafter because of the transfer of UTSG's business to Dr Baig. In other words, scenario B does not include any claim for future lost profits; 3. third, as discussed above, no losses were in fact incurred by UTSG; 4. fourth, as discussed above, there is no factual basis establishing the quantum of the compensation claimed in this regard; 5. fifth, as discussed above, UTSG did not in fact relocate to 280 Pitt St; 6. sixth, to the extent that the losses are claimed under s 59(1)(c) of the Just Terms Act, they are not "in connection with" the person entitled to compensation, viz, UTSG. If there was any future loss, it would be that of Dr Baig and Arys Health (as reflected in scenario B); 7. seventh, to the extent that this claim is made pursuant to s 59(1)(f) of the Just Terms Act, as Sydney Metro correctly argued, the criterion set out in the statutory language has not been satisfied. UTSG did not have any actual use of the land and the future relocation is not a direct and natural consequence of the acquisition, rather any future relocation relates to an arrangement between Arys Health and Dr Baig; and 8. eighth, there is no reliable evidence that UTSG will in fact relocate, and therefore, such costs would not be "reasonably incurred".

There is No Basis for the Claim for the Costs of Dr Baig's Supreme Court Proceedings

UTSG persisted in its claim for the costs of the Supreme Court proceedings between UTSG and Dr Baig under s 59(1)(f) of the Just Terms Act until its closing submissons. UTSG asserted that the costs of the Supreme Court proceedings were "a direct result of delays created by TSNW and them taking over 3 months to consent to the completion of the SC [Supreme Court] matter." As a consequence of the delay, UTSG asserted that unnecessary legal costs were incurred by it.
The claim may be swiftly dispensed with. In addition to the fact that it has never been quantified ("$(an amount to be confirmed)") and appeared to be abandoned by UTSG during its final address, the claim in no way relates to UTSG's actual use of the land, and moreover, there is no evidence that it is a direct and natural consequence of the acquisition.

UTSG Sought to Further Amend its Claim for Compensation in Closing Submissions

During its final oral submissions on 13 December 2019, and with no notice to Sydney Metro, or to the Court, UTSG revised its claim for compensation yet again. The salient features were that: 1. the claim for the costs of the second Supreme Court proceedings were abandoned (T1228:15-28); 2. there was no claim for the market value of the acquired property because the business was to be relocated, not extinguished (T1232:08-15); 3. the relocation costs, including the fitout of the premises, rose to $5,463,771 (from the $1,903,939 in its amended points of claim). The inclusion of IT infrastructure and marketing was the cause of the increase (T1211:27-37); 4. a new claim was added, namely, $14 million for doctors' retainers. This was because, according to Dr Baig, each time a practitioner was re-employed by UTSG, or was employed for the first time, the doctor required the payment of an upfront retainer of $1 million (T1212:33-1213:04); 5. the reason why UTSG had not relocated its medical business was because TNSW had not released funds enabling it to do so until February 2018 and the company was not able to secure a bank loan (T1214:35-1217:03; 1219:05-1222:03); 6. UTSG's medical business closed due to the acquisition and only part of it had temporarily relocated to 280 Pitt St. Dr Baig estimated that the business would reopen in new premises on 1 October 2020 (T1222:35-1223;10); and 7. the retainers, together with "capability development" costs, fitout, past losses and future losses brought the cost of the hypothetical relocation to $45,710,000 (T1237:07-1242:44).
Because no application to further amend its points of claim was made by UTSG it is strictly unnecessary to engage with the revised claim. However, for the sake of completeness, and having regard to the unrepresented status of UTSG, the claim is dealt with below.
If properly understood, the further amended claim for compensation was formulated as follows: Section 59(1)(a) and (b) Amount s 59(1)(a) legal fees $(an amount to be confirmed) (T1225:04-08; 1226:15-1228:06) s 59(1)(b) valuation fees (as at 1 February 2019) $178,640.00 (an amount to be confirmed) (T1226:23-31) s 59(1)(c)/(f) Relocation costs Wasted relocation costs $2,120,893.00 9,110,410 (T1204:07; 1205-1207) Future relocation costs for the business: $(an amount to be confirmed) $22,709,271 • relocation costs of the fitout of premises $1,903,939.00 5,463,771 (T1211: 27-41; 1238: 05-36) • retained plant and equipment fire sale value $53,561.00 • retainer fees for 14 doctors $14,000,000 (T1211:45-1213:39; 1237:39-42) • "capability maturity development" $4,140,000.00 3,245,500 (T1239:38-40; 1239:01-1240:06; 1241:18; 1242:38) s 59(1)(c)/(f) relocation lost profit Past loss $9,110,410 (includes Mr Mullins's wasted relocation costs of $2,120,893) (T1205:42; 1206:09; 1207:06-09) future loss assuming at least an 18 month loss $5,971,823.00 13,961,823 (T1205:26-29; 1237:26-29) in the alternative, s 59(1)(c) extinguishment relocation costs and s 59(1)(f) extinguishment lost profits • extinguishment lost profits $9,110,410.00 (includes Mr Mullins's wasted relocation costs of $2,120,893.00) plus • past loss $39,647,056.00 (T1201:28-29) • loss in perpetuity s 59(1)(f) supreme court proceedings - outstanding cost associated with the settled claim by Dr Baig $(an amount to be confirmed) (T1228:15-28) Total Compensation = *$45,710,000 (T1242:40-43) *UTSG claims of $9,110,410 + $22,709,271 + $13,961,823 = $45,781,504 (T1236:37-1237:03)

Given that the claim for extinguishment had been abandoned by UTSG early in the hearing resulting in a claim for compensation in the sum of $19,160,626 (excluding legal costs and valuation fees, and rounding up), UTSG more than doubled its claim in its closing submissions.
No additional evidence was relied upon by UTSG to in order to advance its further amended claim. In light of the analysis and findings concerning the financial evidence of UTSG and the issues inherent in the Mullins report, the further amended formulation of UTSG's claim for compensation may be rejected in its entirety. There are, however, several elements of the reformulated claim that warrant additional discussion.
UTSG contended that one of the directors loaned $5,522,864 to the company. Not only is there is no cogent evidence establishing this fact, to the extent that it consists of no more than assertion by Ms Singh, it cannot be accepted without independent objective evidence. In any event, as Ms Singh appeared to conceded during oral submissions, the loan does not form part of UTSG's claim (T1201:42).
In its closing written submissions, UTSG listed 22 matters which it sought to rely upon for compensation. More generally, to the extent that this list contained new claims that were not within the scope of the amended points of claim, they may be rejected given the late stage at which they were raised. More specifically, the claims may be dismissed on the following bases: 1. paragraph 1: "search of premise suitable for Business Relocation similarly to the Property Search Criteria". Assuming that this claim is within the claim for "wasted relocation costs", it must be rejected for the reasons given earlier in this judgment under that heading; 2. paragraph 2: "change of Use, Development Application, Refurbishments, Fitout specific to the Business". Assuming that this claim falls within the claim for "wasted relocation costs" and/or "future relocation costs", it must be rejected for the reasons given earlier in this judgment under those headings; 3. paragraph 3: "Disturbance, Loss of Profits during relocation and re-establishment period". This claim is part of the "relocation lost profit claim" and is rejected for the reasons given earlier in this judgment under that heading; 4. paragraph 4: "furnishing and medical equipment's" [sic]. If this is a claim for "wasted relocation costs" or for "future relocation costs", it must be rejected for the reasons given earlier in this judgment under those headings; 5. paragraph 5: "Business Development, Promotion, Marketing and Advertising". If this is a claim for "wasted relocation costs" or for "future relocation costs", it must be rejected for the reasons given earlier in this judgment under those headings; 6. paragraph 6: "Implementation of Business Architecture; Modular Development". It is difficult to understand what this claim means, but it appears to relate to the potential future relocated business and/or part of the "future relocation costs" and it must be rejected for the reasons given earlier in this judgment under that heading; 7. paragraph 7: "Installation of IT and ICT Infrastructure" fits into the same category with the same result as contained in paragraph (f) referred to immediately above; 8. paragraph 8: "Accreditation, Procurement of Services, Capability Development, Training and Education of Team of Medical and Healthcare Services Professional and Practice Management Resources". Again, this claim is difficult to comprehend but it appears to relate to some part of the potential future relocated business and/or part of the "future relocation costs", and therefore, it must be rejected for the reasons given earlier in this judgment under that heading; 9. paragraph 9: "Implementation Integrated Healthcare Programs" is in the same category with the same result as that in paragraph (f) referred to above; 10. paragraph 10: "Advising Clients of Relocation" is again in the same category with the same result as that in paragraph (f) above; 11. paragraph 11: "Removals and Wasted Relocation Costs of Medical Centre to Temporary Relocation site at 280 Pitt Street, Sydney". This is a claim for "wasted relocation costs" which has been rejected above; 12. paragraph 12: "Retainer of Procurement of 10-14 Medical and Healthcare Professionals for Provision of Services on the basis of…multiplied by 14 for Medicare Registered Medical and Health Practitioner", which appears to be part of a future relocation costs claim and the same result follows as that in paragraph (f) above; 13. paragraph 13: "Negotiations and Implementation of Contracts; Legal Services and other relate fees to relaunch the V Health Plus Flagship Business Centre". Insofar as the claim concerns the relaunching of the business, it falls within the "future relocation costs" claim which has been earlier rejected; 14. paragraph 14: to the extent that "All Administration, Professional Services and Valuation fees relating to the LEC Proceeding" does not relate to disturbance under s 59(1)(a) and (b) of the Just Terms Act for which a claim for compensation has been upheld (for legal costs and valuation fees), the claim otherwise falls to be determined under "future relocation costs" which has been rejected; 15. paragraph 15: "Current Liabilities resulting from termination of Seed Investors" was not pressed by UTSG (T1223:32-45); 16. paragraph 16: "Double Rental" was not pleaded and is unexplained. The claim is also contrary to the facts. UTSG occupied 40 Park St for a period after the date of acquisition, for which Sydney Metro claims a rental offset under s 34(4) of the Just Terms Act (see below). To the extent that an amount for rental is claimed by UTSG for relocation to 280 Pitt St, the claim has been rejected above because, as established, UTSG did not actually relocate to those premises; 17. paragraph 17: "Interest on Loans and Credits to Business". Again, this was not pleaded. If it is part of the claim for "wasted relocation costs" it has been rejected; 18. paragraph 18: "Future liability relating to Business Sale Agreement with 5G General Trading UAE". This aspect of the claim was not pressed by UTSG during its final oral submissions (T1223:32-45). In any event, as the Court has found, the Business Sale Agreement is a sham; 19. paragraph 19: "Relocation Projects from 1 April 2016 - Timesheet (deferred Payments)". If this is part of the claim for "wasted relocation costs" or "future relocation costs", it must be rejected for the reasons given earlier in this judgment under those headings; 20. paragraph 20: "Special Purpose costs for preparation of financial statements, tax returns to comply with Short Minutes Court Orders of 2 March 2018". If this is part of the claim for "wasted relocation costs" or "future relocation costs", it must be rejected for the reasons given earlier in this judgment under those headings. If, however, this is a claim for the costs of the proceedings, this matter is specifically dealt with below (see paragraphs [400]-[411]); 21. paragraph 21: "Medical Equipment's" [sic]. To the extent that these may be properly characterised as "future relocation costs" these have been dealt with and rejected above. Moreover, there is an absence of reliable evidence establishing any claim for the cost of medical equipment (which has not been reliably identified or valued, let alone brought within a statutory head of compensation); and 22. paragraph 22: "Legal Fees for LEC Proceedings". The legal costs compensable under s 59(1)(a) of the Just Terms Act have been agreed and an award of compensation has been made in UTSG's favour in this regard. If, however, this is a claim for the costs of the proceedings, this matter is specifically dealt with below (see paragraphs [400]-[411]).
UTSG listed eight matters in respect of which it submitted that it sought compensation for disturbance on the basis of the Mullins report. Dealing with and dismissing each in turn: 1. first, "UTSG seeks compensation payable to seed investors". However, UTSG abandoned this claim during final oral submissions (T1223:32-45); 2. second, "UTSG seeks compensation for all incurred expenditure caused as a direct consequence of the Compulsory Acquisition comprising". Given the high level of generality of this claim, it suffices to say that it has been dealt with and rejected earlier in the judgment; 3. third, UTSG seeks compensation for "wasted relocation costs to temporary relocation site of 280-282 Pitt Street, Sydney of UTSG Medical Centre". This has been rejected above under the heading "wasted relocation costs"; 4. fourth, UTSG seeks compensation for "all legal and valuations expenses from 1 April 2016 to 17 December 2019". To the extent that these costs and fees are claimable up to the date of acquisition under ss 59(1)(a)-(b) of the Just Terms Act, these have been determined largely in UTSG's favour. Otherwise, the costs of the proceedings are determined below. It should be observed that UTSG cannot have any justifiable basis for a claim for legal expenses from August 2018 to 17 December 2019 because it was not legally represented in the proceedings during this time; 5. fifth, UTSG seeks "all expenditure relating to compulsory acquisition from 1 April 2016 to 17 December 2017". See the findings above in paragraphs (b) and (d); 6. sixth, UTSG makes a claim for compensation for "services and administration fees including loss of income suffered by Dr Baig and Ms Singh, representing the Applicants, class 3 compensation claim". This claim has not been pleaded or proven. There is no evidence of any loss of income by Dr Baig and/or Ms Singh, whether "representing" the company or in their individual capacity (neither of whom were legally representing UTSG). It remained unexplained how a loss of income by Dr Baig and/or Ms Singh personally could provide a basis for compensation to be paid to UTSG under the Just Terms Act; 7. seventh, UTSG claims "interest on loans and loss of opportunity costs suffered by the Applicant, as a direct and natural consequence of Compulsory Acquisition of the Applicants business flagship centre". This forms no part of UTSG's pleaded case and was not supported by any evidence. It is rejected; and 8. eighth, UTSG's claim for "cost of future liabilities and claims arising from the Applicant's inability to honour business sale agreement with 5G General Trading and Service providers forming the collaborative partnerships" was ultimately not pressed at the hearing (T1224:25;27).
The revised quantification of UTSG's claim is no less incredible than the claim in its amended points of claim. For example, the claim for legal and valuation fees has been replaced by an unspecified (presumably larger) amount, but no evidence of invoices or their payment was adduced in support of it.
Moreover, the further amended claim, if properly understood, appears to double count UTSG's relocation costs by including the amount of $9,110,410 twice. It could not be justified the first time it was claimed.
The revised claim also includes more than $3 million for "capability maturity development", an unexplained and unproven category of loss.
The revised claim also seemed to quantify compensation allegedly due for future relocation costs at more than $22.7 million. This sum is almost entirely unexplained and is wholly unsupported by any reliable evidence. UTSG proffered a document asserted to be a "road map" for the hypothetical future business of UTSG. There was no explanation from it as to how this plan was compensable under the Just Terms Act. Nor was there any evidence supporting the quantification of the cost of implementing the plan. There was also no evidence that UTSG ever took any steps to implement the "road map".
A wholly new claim for an additional $14 million in compensation was raised (T1211:45-1212:07). This amount appeared to form part of UTSG's revised claim for future relocation costs. It was said to represent the money required for UTSG to pay 14 doctors an upfront retainer fee of $1 million each once the business had relocated and had recommenced.
Sydney Metro described the claim in the following way: "this claim, advanced in apparent seriousness in oral submissions by each of Ms Singh and Dr Baig, is patently absurd." It is hard to cavil with this assessment. The claim was not pleaded and, although retainers were referred to by UTSG on 10 April 2019 (T183:47-184:03; 186:13-15), the company adduced no reliable evidence in support of it. There is presently no evidence that any doctor (other than perhaps Dr Baig) is ready and willing to work with UTSG in the future (see, for example, the evidence of Mr Wright). There is no evidence that upfront retainer fees were ever paid to doctors working for UTSG, let alone for an amount of $1 million each. The claim must be dismissed.
UTSG further complained that it had received no relocation assistance from Sydney Metro. As the evidence set out earlier in this judgment makes plain this is patently false. An advance payment of its compensation as determined by the VG was made to it by TNSW, however, that payment was the subject of legal proceedings between Dr Baig and Ms Singh in the second Supreme Court proceedings.
Ms Singh also suggested that she did not provide evidence of unsuccessful applications for bank loans to enable UTSG's business to relocate and continue because she did not know that this evidence ought to have been adduced (T1216:03-07). Ms Singh further stated that all the relevant information in this regard was provided to her former solicitors. Ms Singh proceeded to identify particular banks and bank officers by name which presumably she had made unsuccessful loan applications to (T1217:13-15). Had such applications in fact been made, evidence of attempts to obtain business loans would have been deposed to in Ms Singh's affidavits. It may therefore be inferred that no such loan applications were made. This was another lie by Ms Singh.
UTSG asserted that in order to prove its claim for compensation it relied on the financial statements prepared by Mr Fahad, the "Work Done by Doctor" reports, and the Goodyer report. However, the limited number and range of "Work Done by Doctor" reports do not compensate for the absence of reliable primary financial documentation and do not demonstrate receipt of income by UTSG, as opposed to some other entity. This issue was dealt with expressly by Mr Howman-Giles in his report and in cross-examination (T1044:28-41): Q. Do you read the first ‑ the paragraph 7.10? It says, "Attached as appendix H and I, reports extracted from the financial and operation management system of UTS"‑ it is missing of G. The reports are entitled, "Work done by Dr Sumray" with appendix A providing a monthly breakdown of revenue by doctor, by month, for 2016 financial year and appendix I providing the same report for 2017 financial year, 2 March 2017. Mr Howman‑Giles, does that not indicate that is a general letter ‑ a form of general letter, if not‑‑ A. No. A financial and operational management system could mean a range of things, including a practice management system that simply records the revenues. It doesn't necessarily ‑ under that description, that doesn't necessarily require it to have a complete general ledger. I've seen no information other than the maintenance of revenue figures in any of the work done by Dr Reports or other ‑ or just the work done by Dr Reports that I understand or assume have been printed from the BPS system.
The purported financial statements prepared by Mr Fahad of MS Tax were no more than a spreadsheet of material supplied by Ms Singh which was never an accurate record of the business affairs of UTSG, and which, before being altered and attached to the Mullins report (see specifically columns "P" and "Q" of Appendix 15), were purportedly "audited by LPAA" (rather than MS Tax), a fictional entity. In respect of Mr Goodyer's opinions, he relied on work purportedly carried out by TaxSavvy's Ms Jessica Cheung and Ms Cara Adams, again, neither of which in fact exist.
Finally, during its closing submissions, UTSG repeatedly submitted that limited to no weight ought to be placed on the Howman-Giles report because it was based on incomplete materials compiled from unreliable sources. That is, because Mr Howman-Giles did not have a complete and accurate record of the company's financial affairs, his report could not be relied upon. But the difficulty with this submission is that any incompleteness in, and unreliability of, the financial and accounting records that Mr Howman-Giles examined was the fault of UTSG, and not Mr Howman-Giles. As Mr Hill confirmed in his oral evidence (T1143:48-1144:26), Mr Howman-Giles was provided with all of the materials received by Ashurst after notices to produce and subpoenas were issued to UTSG and third parties in an attempt to obtain UTSG's financial and accounting records. The material provided to Mr Howman-Giles included all of the information examined by Mr Mullins in the Mullins report. Mr Howman-Giles undertook as detailed a review of the information provided to him - much of which was contradictory, internally inconsistent, and incomplete - as was possible in all the circumstances (T1067:10-44).

UTSG Was Not Denied Procedural Fairness in the Conduct of the Proceedings

In its written closing submissions UTSG essentially made a complaint that it had not been afforded procedural fairness during the conduct of the proceedings.
This was said to be manifested, first, by the difficulties that it had encountered in running the trial absent legal representation, including in complying with directions for the preparation of its final written submissions. However, as the lengthy procedural history recited earlier in this judgment reveals, UTSG has had more than ample time to prepare for and conduct the hearing. As Sydney Metro noted: 1. the proceedings were commenced on 16 August 2017 by UTSG. The primary report relied upon by the company to quantify its claim, namely, the Mullins report, was completed on 29 March 2018. It remained the evidentiary plank of UTSG case throughout the hearing (T1203:09); 2. UTSG's initial lay evidence was Ms Singh's May 2018 affidavit. The points of claim were filed on 10 May 2018. Ms Singh has therefore had familiarity with the company's claim for compensation for approximately 19 months prior to closing submissions; 3. the directions made in relation to the filing of final submissions were made on 1 August 2019, with the consent of UTSG. At no time prior to 12 December 2019 did UTSG raise any difficulty in complying with the timetable for closing submissions; 4. after the directions hearing on 1 August 2019, the hearing deliberately proceeded incrementally in clearly identified stages to ensure that there was adequate time for UTSG to prepare for each stage; and 5. UTSG was legally represented at various stages of the claim (albeit not at the final hearing) by multiple firms of solicitors between December 2016 to February 2017, 2 May 2017 to 10 July 2018, and 10 July to 25 October 2018. No evidence was adduced, other than bare statements from the bar table from Ms Singh and Dr Baig as to their alleged impecuniosity, indicating why UTSG was not legally represented from 25 October 2018 up to the conclusion of the hearing. In this context it should be noted that UTSG received payments totalling $1,923,150.60 as an advance payment from TNSW in two instalments on 8 February 2018 and 5 May 2018 ($916,472.58 was paid on 2 February 2018 following orders from the Supreme Court. The remaining amount of $1,028,599.32 was paid on 8 May 2019, of which $998,699.34 was paid into the Trust account of Stacks Lawyers, $10,566.68 to Hegartys Lawyers, and $19,363.30 to Mitry Lawyers, to satisfy a garnishee order and lien in respect of the payment of outstanding legal fees).
Second, UTSG submitted that it was "significantly compromised by the Court decision to reject" some of its evidence. The evidence comprised various affidavits and expert reports which were either not read by UTSG or were rejected by the Court. They have been discussed throughout this judgment (for example, the affidavits of Mr Hollins, Mr Frisken, Mr Fahad, and the reports of Mr Allsopp and Mr Watts).
Third, UTSG referred to the lack of legal and accounting qualifications of Dr Baig and Ms Singh who were required to cross-examine Sydney Metro's witnesses. The Court was at all times cognisant of Ms Singh's and Dr Baig's lack of legal and financial qualifications and sought, wherever just and fair to do so, to make accommodation for this disadvantage. This included allowing significant additional time for the cross-examination of Dr Ferrier and Mr Howman-Giles. In any event, as Sydney Metro contended, both Dr Baig and Ms Singh were company directors who may be taken, in conformity with their statutory duties under the Corporations Act 2001, to have had the requisite familiarity with company financial statements. Ms Singh repeatedly claimed to have extensive business experience (T526:38-44; 529:04-06; 529:34-43) and a level of familiarity with accounting for small to medium enterprises (T415:50-417:24). There is nothing inherently procedurally unfair about a self-represented corporate litigant having, if it elects to do so, to cross-examine expert forensic accounting and business valuation witnesses.
Fourth, UTSG complained about having to make final oral submissions on 13 December 2019 without warning, suggesting, disingenuously, a lack of notice that the day had been fixed for its closing submissions. However, UTSG's written closing submissions expressly referred to Court orders made on 1 August 2019 that fixed 13 December 2019 as the date for the closing oral submissions of UTSG.

Rental Arrears Owing by UTSG to TNSW for its Occupation of 40 Park St

Section 34 of the Just Terms Act provides as follows: 34 Former owner's right to occupy land until compensation paid etc (1) A person who was in lawful occupation of land immediately before it was compulsorily acquired under this Act and to whom compensation is payable under this Act is entitled to remain in occupation until: (a) the compensation is duly paid to the person, or (b) the authority of the State makes (in accordance with any other provision of this Act) an advance payment of not less than 90 per cent of the amount of compensation offered by the authority, or (c) the authority of the State makes (in accordance with any other provision of this Act) a payment into the trust account kept under Part 3 of not less than 90 per cent of the amount of compensation offered by the authority, whichever first occurs. (2) Any such person is entitled to remain in occupation of any building that is the person's principal place of residence, or the person's place of business, for 3 months after it is compulsorily acquired, even though the person has ceased to be entitled to remain in occupation under subsection (1). However, if the Minister responsible for the authority of the State is satisfied that the authority requires immediate vacant possession of land, the authority is entitled to immediate vacant possession even though the 3-month period has not expired. (3) The terms on which a person remains in occupation of land that has been compulsorily acquired under this Act are, in the absence of agreement, such reasonable terms as are determined by the authority of the State (including terms as to the rental to be paid and the restrictions on the use of the land). The Residential Tenancies Act 2010 does not apply to that continued occupation. (3A) Despite subsection (3), rent is not payable during the relevant 3-month period by a former owner who remains in occupation of any part of a building that is the person's principal place of residence. A former owner does not include a person who only held a leasehold interest in the acquired land. (4) Any such unpaid rent or other money due to the authority of the State may be set off against the compensation payable under this Act.
On 13 January 2017 TNSW wrote to UTSG advising, among other things, that UTSG was entitled to remain in occupation (provided that certain statutory criteria were met) and that TNSW required vacant possession of 40 Park St no later than 12 April 2017 to meet the construction program for the project. UTSG was required to pay $31,402.45 per month plus GST of $3,140.25 to TNSW during UTSG's continued occupation of those premises after the date of acquisition (this was an amount that equated to the rent payable by UTSG to Gwynville under the lease).
UTSG continued to occupy 40 Park St under this arrangement until 31 August 2017. The rent due for that period is $183,123.64. It may be offset against any compensation awarded by the Court pursuant to s 34(4) of the Just Terms Act (see Roads and Maritime Services v United Petroleum [2019] NSWCA 41; (2019) 99 NSWLR 279 where the Court of Appeal upheld such a claim: at [64]).
The rental arrears can therefore be offset against UTSG's claim for legal and valuation fees in the sum of $137,516.76.
It should be noted for completeness that Sydney Metro abandoned a claim at the hearing that UTSG be directed to repay the outstanding rent of $45,606.88 owed to it. Had this argument been pursued it would have given rise to an issue as to whether the Court had power under the Just Terms Act to make such an order (cf Brock v Roads and Traffic Authority of New South Wales (No 2) [2012] NSWLEC 114 at [57]-[90]).

Conclusions on UTSG's Claim for Compensation

The Court's findings and conclusions on the compensation claimed by UTSG under the Just Terms Act are set out in summary form in the table below: Head of Compensation Claimed by UTSG Under the Just Terms Act Amount of Compensation UTSG Entitled To s 59(1)(a) and (b) s 59(1)(a) legal fees $85,596.76 s 59(1)(b) valuation fees $51,920.00 s 59(1)(c) and/or (f) Relocation Costs Wasted relocation costs $Nil Future relocation costs for the business: • relocation costs of the fitout of premises $Nil • retained plant and equipment s 59(1)(c) and/or (f) Relocation - Lost Profit Past loss $Nil Future loss (assuming at least an 18 month loss) $Nil In the alternative, s 59(1)(c) Extinguishment Relocation Costs and s 59(1)(f) Extinguishment Lost Profits Extinguishment lost profits $Nil Past loss and loss in perpetuity s 59(1)(f) Supreme Court Proceedings $Nil $137,516.76 Less rental arrears in the amount of $183,123.64 under s 34(4) Total Compensation = $NIL ($45,606.88 owing to Sydney Metro)

Therefore, the compensation payable to UTSG under the Just Terms Act for the compulsory acquisition of its leasehold interest may be determined as follows: 1. $137,517 (rounded up) for legal costs and valuation fees pursuant to s 59(1)(a) and (b) of that Act; and 2. $nil for all other heads of compensation claimed.
However, as explained above, Sydney Metro is not required to pay UTSG compensation in the sum of $137,517 because pursuant to s 34(4) of the Just Terms Act Sydney Metro may offset that amount against the rent owing by UTSG to it in the amount of $183,123.64.
Accordingly, no compensation is payable to UTSG.

Costs

In light of the nil compensation awarded to UTSG once the set off of the rental arrears is made, and given the manner in which UTSG, through Ms Singh in particular, conducted its claim, Sydney Metro seeks not only its costs of the proceedings, but an order that Ms Singh (not Dr Baig) be jointly and severally liable for the payment of Sydney Metro's costs.
UTSG resisted the making of such an order and submitted that, to the contrary, Sydney Metro ought be liable to pay for its costs of the proceedings.
In determining this question it is convenient to deal with the issue in two steps: first, whether or not an award of costs of the proceedings ought to be made in favour of Sydney Metro; and second, if so, by whom should it be paid.

Applicable Legal Principles Concerning Costs in Compulsory Acquisition Cases

Section 98(1) of the Civil Procedure Act 2005 ("CPA") provides as follows (emphasis added): 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act - (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.
Because it has been recognised that the position of an applicant in compulsory acquisition cases is different to ordinary litigants, the legal principles governing the exercise of the Court's discretion to award costs is somewhat bespoke.
In Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 Basten JA described the unique position of claimants in compulsory acquisition matters as follows (at [70]-[72]. See also Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41; (2019) 99 NSWLR 279 at [67]): 70 In other respects, however, the appellants' propositions may be accepted. They support the proposition that a claimant for compensation in respect of a compulsory acquisition should usually be entitled to recover the costs of the proceedings, having acted reasonably in pursuing the proceedings and not having conducted them in a manner which gives rise to unnecessary delay or expense. 71 That approach is also consistent with the absence of any general presumption that costs should follow the event: the owner who has been compulsorily dispossessed is entitled to take reasonable steps to seek the judgment of the Court in respect of the adequacy of any compensation offered. 72 Whether steps taken in maintaining proceedings are reasonable will depend upon the circumstances of the particular case. These may include a comparison between the positions adopted by the parties at the commencement of proceedings and the final outcome. To the extent that a claimant obtains less than the valuation provided by the Valuer-General, the claimant has been unsuccessful in the litigation. That will be a factor to be taken into account, but the weight given to that factor may depend upon the extent of the failure. The Court may also take into account the time and expense incurred in relation to specific items. Beyond such general statements, it is unhelpful to go, lest the very generality of the discretion be thought to be fettered in some way. In short, the purpose of an award of costs must be taken into account, namely to compensate the party for expenditure incurred in the course of litigation; the nature of the litigation and the reasonableness of the conduct of the litigation are central considerations.
The applicable legal principles governing an award of costs in this category of proceedings were summarised recently by the Court of Appeal in Croghan v Blacktown City Council [2019] NSWCA 248; (2019) 238 LGERA 439 (at [15]-[18] per Meagher JA): 15 However as Wells J explained (at 134) in Minister for Environment v Florence (1979) 21 SASR 108, the position of a claimant in compulsory acquisition compensation proceedings is different from that of a plaintiff in ordinary litigation. That claimant is given the right to claim compensation but has no choice as to whether to make a claim to enforce that right or not. His Honour continued: Upon an ordinary claim in the general jurisdiction it is, generally speaking, obvious who has won and who has lost, and correspondingly clear why costs usually follow the event. Upon a claim for compensation for land compulsorily acquired, it is not, generally speaking, appropriate to speak of one party as having won; compensation is awarded to one who has already been given, by statute, the right to receive it. It is therefore as just to say of the latter sort of case that the claimant ought, in the absence of special circumstances, to receive his reasonable costs of obtaining the compensation that is, ex hypothesi, his due as it is to say of the former sort of case that prima facie costs follow the event in favour of the party who has won. 16 Similar observations were made by Wilcox J of the compensation claim made in Banno v Commonwealth (1993) 45 FCR 32 at 51: But this is not ordinary litigation. The relationship between the parties giving rise to the litigation did not arise out of their mutual desire; it arose because of a unilateral decision of the Commonwealth to acquire the applicants' land in order to satisfy a perceived public need. The acquisition left the applicants in the position of either accepting the Commonwealth's assessment of the proper compensation or of having the Court rule on its adequacy. 17 The Just Terms Act confers a right to compensation for compulsorily acquired land (s 37), guarantees that the amount of compensation will be not less than market value assessed under that Act (ss 3, 10) and provides for the former owner to be given an offer of compensation determined by the Valuer-General and to be informed of its right to object to the amount offered (ss 41, 42, 43 and 47). That right is exercised by lodging an objection with the Land and Environment Court which must then hear and determine that claim (s 66); and in proceedings to which the rule that costs follow the event does not apply. 18 Accordingly, as was observed in Dillon (at [70], [71] per Basten JA), the relevant principles provide that the "owner who has been compulsorily dispossessed is entitled to take reasonable steps to seek the judgment of the Court in respect of the adequacy of any compensation offered"; and, consistent with there being no general presumption that costs should follow the event, that owner is usually entitled to recover the costs of the proceedings "having acted reasonably in pursuing [them] and not having conducted them in a manner which gives rise to unnecessary delay or expense". Applying these principles, in Brock v Roads and Maritime Services [2012] NSWCA 404; (2012) 191 LGERA 267 this Court held at [95] - [99] (Tobias AJA) that the claimant was entitled to her costs of the proceedings at first instance, she having acted reasonably in seeking the judgment of the Court in respect of the adequacy of the respondent's offer based on the Valuer-General's determination, and notwithstanding that she had obtained less than the amount of that statutory offer.
In other words: 1. first, the purpose of an award of costs is to compensate a party for expenditure incurred during the course of litigation; 2. second, the Court has an unfettered discretion to award costs; 3. third, however, unlike other civil matters, because an owner who has been compulsorily dispossessed is entitled to take reasonable steps to challenge the adequacy of any compensation offered, there is no general presumption that costs follow the event in Class 3 compulsory acquisition claims under the Just Terms Act; and 4. fourth, as a consequence, the owner is usually entitled to recover the costs of the proceedings even if that the owner has obtained less than the amount of the statutory offer by the V-G, provided that the owner has acted reasonably in pursuing the proceedings and not conducted the proceedings in a manner that gives rise to unnecessary delay or expense.
Thus a dispossessed owner who pursues a "vexatious, dishonest or grossly exaggerated claim" is likely to attract a finding by the Court that the owner has acted unreasonably in pursuing the proceedings, and therefore, is likely to attract an adverse costs order (Brock v Roads and Maritime Services (No 3) [2012] NSWCA 404; (2012) 191 LGERA 267 at [97] per Tobias AJA).
In light of the conduct of its claim for compensation, and the result, it is plain that UTSG has acted wholly unreasonably in pursuing the proceedings. Moreover, it conducted the case in a manner that gave rise to unnecessary delay and expense. What ought to have been a reasonably straightforward claim with the sort of expert evidence that is routinely dealt with in this class of proceedings in this Court became anything but.
The following aspects of the conduct of the proceedings make it therefore appropriate that UTSG pay Sydney Metro's costs: 1. as the procedural chronology set out earlier in this judgment reveals, UTSG repeatedly failed to comply with directions of the Court, which had the result of delaying the commencement of the final hearing and resulted in unnecessary expenditure by Sydney Metro. For example, the Court found in August 2018 that the length and volume of interlocutory applications in the proceedings were "characterised by UTSG's continual default and non-compliance with court orders" (UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 at [34]). The dates originally listed for hearing in August 2018 were vacated because Mr Mullins withdrew his expert report and that "the withdrawal of his expert opinion was caused by the failure of UTSG to properly instruct and brief Mr Mullins" (UTSG at [54]). UTSG also repeatedly failed to comply with its obligation to produce documents (UTSG Pty Ltd v Sydney Metro (No 2) [2018] NSWLEC 199 at [25]-[38]). This continued through the proceedings (UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 at [15]); 2. the amount of compensation determined by the VG and offered to UTSG, namely, $2,136,834, was not only premised on the misleading financial information contained in the Goodyer report, it was manifestly excessive in light of the evidence now before the Court. It was not in any event accepted by UTSG. UTSG expressly declined to accept compensation in this sum at various times during the hearing; 3. UTSG's claim for compensation continually changed resulting in wasted costs for Sydney Metro as claims were abandoned and added. The initial quantification of its claim for compensation in its points of claim filed on 10 May 2018 was approximately $19 million for relocation, or in the alternative, $48 million for extinguishment. During the hearing it abandoned its claim for business extinguishment. By the time it made its closing address on 13 December 2019 its claim was in excess of $45 million for relocation. Such conduct was unreasonable; 4. the various amounts of compensation claimed by UTSG were never supported by credible reliable evidence. At all stages of the proceedings the amount of compensation claimed by UTSG was completely untenable; 5. undeterred by a paucity of evidence, and in the face of cogent and detailed lay and expert evidence adduced by Sydney Metro, UTSG continued to maintain its position throughout the proceedings; 6. as detailed in this judgment, Ms Singh sought to advance UTSG's claim for compensation by relying on fraudulent and doctored documents, by inventing fictitious entities, and by lying about important matters both in her written and oral evidence; 7. UTSG attempted to rely on evidence that was unfairly prejudicial to Sydney Metro or caused costs to be wasted insofar as the evidence was either served late (such as the additional material served by UTSG on the first day of the hearing, the report from Njoro & Associates concerning the Business Sale Agreement attached to a supplementary report of Mr Watts dated 1 April 2019, or the material that UTSG sought to tender after its case had closed on the third last day of the hearing (Ex F: T1257:24-26)), was withdrawn by UTSG (such as the evidence of Mr Frisken, Mr Hollins and Mr Dunn), or the relevant witnesses were not available for cross-examination (for example, Mr Allsopp, Dr Shakoor and Mr Fahad); and 8. the scandalous and baseless accusations UTSG continually made throughout the hearing impugning the character and integrity of the legal representatives of Sydney Metro. For example: Person/Entity Accusation Transcript reference Ashurst selective reliance on, and manipulation of, evidence in tender bundle T244:18-246:15 was deliberately misleading T560:8-12 Mr Lancaster SC engaged in intimidation T331:39-40; 425:21; 515:05-07 asked insulting questions T364:44-45; 365:30; 370:14-16; 374:28-34; 412:02; 412:47-48; 505:01-14 falsely attributed words to Ms Singh T365:26 "conveniently" prevented witnesses from giving evidence T498:50-499:01 made "unacceptable" or unfair accusations T553:48-554:03; 560:47-50 misled the Court T564:23-24 Mr Eastman lied to the Court T822:49-823:03; 827:09-16; 850:36 misled the Court T821:31-34; 826:10-15; 849:12; 851:11-12 deliberately removed material from Ex A while it had been uplifted for photocopying purposes T1260:28-30; 1261:09-1263:01; 1322:19-1323:07 Counsel for Sydney Metro engaged in intimidation and deceitful conduct T248:46-249:21 "playing a very manipulative game" T838:39-41

For all these reasons it is appropriate that UTSG pay Sydney Metro's costs of the proceedings.

Liability of Ms Singh as a Non-Party for Sydney Metro's Costs

The power to order costs pursuant to s 98(1) of the CPA includes the power to order that those costs be payable by persons who are not a party to the proceedings (PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM [2018] NSWCA 168 at [22]-[26] per Leeming JA). The power is, however, to be exercised only in exceptional cases. This is one such case.
The principles governing the exercise of the power to make costs orders directed to non-parties were articulated by the High Court in Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 (at 192-193) and restated and endorsed by the Court of Appeal in FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 (at [198]-[214] per Basten JA), PM (at [30]-[35] per Leeming JA) and Brand2Content t/as Franchise Works v Dalby [2019] NSWCA 16 (at [6]-[17] per Simpson AJA).
As set out in Brand2Content they are as follows (at [11]): 11 In FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Basten JA, with whom Beazley JA, as her Honour then was, and Giles JA (in this respect) agreed, identified five criteria for the exercise of the jurisdiction that emerge from cases in which orders for payment of costs by non-parties have been made. In FPM the court was concerned with s 148B of the District Court Act 1973 (now repealed), the equivalent to s 98(1). At [210] Basten JA stated the criteria as: "(a) the unsuccessful party to the proceedings was the moving party and not the defendant; (b) the source of funds for the litigation was the non-party or its principal; (c) the conduct of the litigation was unreasonable or improper; (d) the non-party, or its principal, had an interest (not necessarily financial) which was equal to or greater than that of the party or, if financial, was a substantial interest, and (e) the unsuccessful party was insolvent or could otherwise be described as a person of straw."
The criteria is neither exhaustive nor a checklist and not all of the factors need be present for the Court to make the order (May v Christodoulou [2011] NSWCA 75; (2011) 80 NSWLR 462 at [96] and [111], Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [80] and [81] per Gleeson JA and Brand2Content at [12]-[13]). What must be emphasised is that the exceptional jurisdiction to make a non-party costs order must only be exercised where, in the circumstances of the case, the interest of justice require that such an order be made (Heath at [80] and Yu v Cao [2015] NSWCA 276; (2015) 91 NSWLR 190 at [137] and [139]).
Careful attention should be directed to the conduct of the party involved in the litigation and the nature of any interest they have in its outcome or in the subject-matter of the proceedings. As Basten JA noted in FPM (at [214]) it is often the case that a non-party, especially in the case of an unrepresented company, will be active in the conduct of the litigation and obtain some direct or indirect benefit from its success (Heath at [81]).
In the case of corporate litigants, care must be taken in the exercise of this exceptional power insofar as company officers are concerned, because "were it otherwise, the corporate veil would, in effect, be nullified at the very point at which it provides protection against personal liability for the shareholders and directors. The carefully crafted exceptions to the principle would overtake the principle itself were that the case" (FPM at [206] per Basten JA).
In Brand2Content Simpson AJA made the following apposite observations in respect of corporate litigants (at [14]-[17]): 14 Each of the five criteria identified by Basten JA needs to be carefully evaluated lest, in the circumstances of the particular case, it be given weight to which it is not, on proper evaluation, entitled. There may be good reasons, for example, for a company officer to provide funds for litigation which a corporate litigant is unable to provide. It will frequently be the case that an officer of a company who takes responsibility for the management of the litigation is also the ultimate, or an ultimate, beneficiary of the litigation in the event that it is successful. That is certainly so where the director is a shareholder. Although orders are not infrequently made where the party to the proceedings is a company and the non-party sought to be made liable for the costs is a director or other officer, or shareholder, the availability of orders is not confined to corporate litigants. Orders can equally be made against an individual litigant in appropriate circumstances. And further, criterion (d) expressly acknowledges that the interest held by the non-party sought to be made liable need not be financial. 15 It is also to be recognised that, in the case of every corporate litigant, some one or more officers of the company must play an active part in the litigation, and make necessary decisions. 16 For these reasons, care needs to be taken where the corporate litigant is a single-director or a small company or where all or the majority of the shares are held by one or two individuals. In those cases, it is a practical necessity that the, or a, director or shareholder has a personal (often financial) interest in the outcome, is actively involved in the pursuit of the litigation and, sometimes, is required to provide funding to enable the litigation to be maintained. None of these circumstances alone, nor any combination of them, is necessarily sufficient to warrant an order. 17 "Mechanical" application of the criteria, against which Gleeson JA cautioned in Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [81] (as had Basten JA in FPM) might suggest that an order ought to be made, where, in reality, the criteria (or some of them) are satisfied by reasons of the practical necessities associated with the corporate structure.
In May the Court of Appeal allowed an appeal against an order that a director who had appeared as an advocate for his company pay the costs of the successful party. The appeal was upheld on the basis that it was not sufficient to establish that the company had been unsuccessful, that the director had signed an acknowledgment that he might be liable to pay some or all of the costs of the proceedings, and that the conduct of the litigation by a director who was not legally qualified had been less than desirable and that the case had been prolonged by his conduct (at [100]-[101]). Nevertheless, Sackville AJA made the following observation (at [102]): 102 Although a non-legally qualified director does not owe the same duties to the court as a legal practitioner, it is no doubt correct that the manner in which the director conducts legal proceedings on behalf of a company could justify a costs order against him or her personally. If, to take an example already given, the director repeatedly and flagrantly ignores court directions, thereby prolonging the proceedings and causing the other party to incur substantial and irrecoverable costs, a non-party costs order may well be appropriate.
His Honour's remarks were subsequently endorsed in PM (at [37]).
In Blazai Pty Ltd v Maclarens (No 2) [2013] NSWSC 31 Adamson J made a costs order personally against the sole director and shareholder of an unsuccessful plaintiff in circumstances where the director had fabricated documents, destroyed documents, given false evidence in affidavits and orally in the proceedings, and where the plaintiff's case was substantially based upon the director's evidence (at [29]). In finding that his conduct was unreasonable and improper, her Honour quoted from Shepherdson J in Naomi Marble and Granite Pty Limited v FAI General Insurance Company Limited (No 2) [1999] 1 QdR 518 (at [33]): 33 Mr Loiero's conduct is, in my view, of similar order to that of Ms Hunter, the plaintiff's managing director in Naomi Marble, of whom Shepherdson J said, at 546-547: In my view, where a person who is not a party to an action but who is in a position such as that occupied by Ann Hunter where as director she was in a position to manage and control the plaintiff and where that person improperly prosecutes what that person must have known was a false and fraudulent claim and where that person garnishes it with many assertions which to that person's knowledge are false and in so doing uses the proceedings of the Court as an instrument of that person's fraud and attempts to deceive the Court then it is my view that the Court would be failing its duty if it did not treat the case against that person as a non-party as exceptional and deserving of an order requiring him or her to pay the successful party's costs on an indemnity basis.
Applying the principles referred to above to the facts as found in the present case it becomes apparent that it is appropriate to make a non-party costs order against Ms Singh: 1. Ms Singh is a director and shareholder in UTSG, the moving party which was wholly unsuccessful in the proceedings; 2. having said this, it is not known if the source of the funds for the litigation was Ms Singh; 3. nevertheless, on any view, the conduct of the litigation was unreasonable and improper. Ms Singh was largely responsible for UTSG persistently failing to comply with Court orders which caused repeated delay and unnecessary costs, she fabricated documents (the Business Sale Agreement and the doctored email) and other evidence (the existence of entities such as LPAA, Cara Adams, Jessica Cheung and TaxSavvy), and gave evidence that she knew to be false both in her affidavits and orally; 4. Ms Singh has a substantial interest in UTSG and in the outcome of the proceedings. She was, as she described herself, the "architect" of UTSG's business (T1196:11). She is one of two directors of UTSG and is a shareholder in the company. Having said this, the evidence did not establish the extent of her financial interest in the company; and 5. as the evidence of Dr Ferrier demonstrates (based on the evidence of Mr Howman-Giles), UTSG had negative maintainable earnings as at November 2016 and there was no basis for concluding that it had any valuable goodwill as at the acquisition date. Even Mr Mullins agreed that "there was no residual value in the remaining business beyond 31 August 2017". The most recent bank account statement for UTSG (attached to Ms Singh's July 2018 affidavit) revealed that the company account was closed on 27 March 2018. Since May 2017 UTSG had a negative balance of $367.94. In other words, UTSG is insolvent and can otherwise be described as an entity of straw.
Ms Singh sought to distance herself from the decision to commence the proceedings and any decision-making during the proceedings. She cannot, however, escape the fact that she was a director and the guiding mind of UTSG at the commencement of, and throughout, the proceedings. To the extent that it was suggested that the decision to commence the litigation was that of her legal representatives at the time (Stacks), absent any evidence to the contrary, it is inconceivable that the Class 3 application would have been filed otherwise than on the specific instructions of Ms Singh. In any event, Ms Singh has either conducted the matter herself or has had direct personal involvement in it since UTSG became unrepresented on 25 October 2018.
Mindful of the exceptional nature of this jurisdiction and the admonishment against applying the criteria in FPM mechanically, in all the circumstances of this proceeding it is my considered opinion that the interests of justice require Ms Singh to pay Sydney Metro's costs in the manner proposed by the acquiring authority.
Because Sydney Metro did not seek that any of the costs be paid an indemnity basis, I will not deal with this issue.

Orders

In conformity with the reasons given above, the formal orders of the Court are: 1. the compensation payable to the applicant under the Just Terms Act for the compulsory acquisition of its leasehold interest the subject of these proceedings is determined as follows: 1. $137,517 (rounded up) for legal costs and valuation fees pursuant to s 59(1)(a) and (b) of that Act; and 2. $nil for all other heads of compensation claimed; 1. the respondent is not required to pay compensation to the applicant in the sum of $137,517 determined above in order (1)(a) because pursuant to s 34(4) of the Just Terms Act the respondent can offset the compensation payable against the rental arrears owing by the applicant to the respondent in the amount of $183,123.64; 2. the applicant is to pay the respondent's costs of the proceedings; 3. Ms Simran Roselyne Singh (also known as Ms Roselyn Singh) is jointly and severally liable to pay the respondent's costs of the proceedings as ordered above in order (3); and 4. the exhibits may be returned.

Amendments 04 June 2020 - Typographical error corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2020

(2012) 191 LGERA 267

(2019) 238 LGERA 439

(2011) 184 LGERA 179

(2008) 160 LGERA 375

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Parties

Cases Cited (48)

Cited By (5)