Yammine v Lantrak Holdings Pty Ltd

The Yammine parties' submissions 7 The Yammine parties acknowledged that they have made this application late in the piece and that their prior failure to address the issue of profitability that they now seek to raise is entirely a matter within their own camp. They also accepted that, if their application is granted, it will be likely to cause prejudice to the Liemant parties. They suggested that if Ms Wright needed more time to prepare her report, it might be able to be filed either during the course of the hearing, or that further dates could be set aside later beyond the seven days set aside for the current listing, in which the expert evidence could be taken and final submissions made.

Consideration 8 I am not satisfied that it is appropriate to grant the Yammine parties leave to rely on Mr Hayes' report, or to interrupt the parties' preparation for the hearing by allowing it to be used at this late stage of the proceeding. Mr Zouky's explanation does not address why, as soon as his firm briefed Mr Hayes, he did not indicate to ABL that he was contemplating relying on expert accounting evidence or, in particular, the issue to which it would be addressed. Nor did Zouki Lawyers' letter of 16 December 2021, when proposing that I make orders to provide for the filing of expert evidence, identify how that question would be approached beyond stating that it would concern "expert accounting evidence as to the profitability of Lantrak NSW". 9 If I allowed the Yammine parties to rely on Mr Hayes' report, the trial would not finish in the time allotted and there would need to be further dates set aside, and further court time taken to deal with it. Moreover, the Liemant parties will have to deal with Mr Hayes' complex accounting report that seeks to raise a new issue at a very late stage in the preparation of this matter for hearing. Nor does Mr Zouky's affidavit explain why, first, that obvious issue as to profitability of the Lantrak NSW business, if it were relevant, was not raised at any time reasonably proximate to the service of Mr Liemant's outline of evidence dated 28 January 2021, or, secondly, only in September 2021, did it occur to Mr Zouky to engage an expert at all. 10 As Gilmour, Perram and Beach JJ said in Tamaya Resources Ltd (ACN 071 349 249) (in liq) v Deloitte Touche Tohmatsu (ABN 74 490 121 060) (a firm) (2016) 332 ALR 199 at 225-226, [149]-[158], a proper explanation is required where a party seeks to raise, at a late stage, a matter that requires either amendment of pleadings or a substantial change in the structure of a case, in accordance with the principles identified by the High Court earlier in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. In Tamaya 332 ALR at 226 [159], the Full Court said that, even assuming negligence by a party's lawyer, such conduct of litigation does not attract indulgence from the court, as it might previously have done in different times. 11 If Mr Hayes' evidence were allowed to be relied on at this late stage, it would cause significant disruption to the preparation of the hearing and its orderly conduct. It would almost certainly necessitate either an adjournment of the hearing or the need to allocate further time to complete it, in circumstances where the Yammine parties have been aware since soon after they received Mr Liemant's outline of evidence early in 2021, that the issue of profitability, to which the proposed evidence is directed, was relevant. That issue needed to be investigated, if at all, then, and not in the leisurely and somewhat opaque way that Mr Zouky has sought, but failed fully, to explain.

Conclusion 12 For these reasons, I refuse to grant the relief sought in the interlocutory application dated 2 February 2022 for the Yammine parties to file and rely on Mr Hayes' expert report. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rares.