Judgments

JUDGMENTS

Court judgments

Hudson v National Australia Bank [2022] FCA 1222 (14 October 2022)

Adam Giliberti was called as an expert witness on behalf of the solicitors representing an Australian bank involving plaintiffs, operating a mortgage broking business, requiring expert opinions on the loss of profits, the value of the mortgage broking business and the value of the mortgage trail book. The Federal Court of Australia judgment referring to Adam Giliberti’s evidence is here Hudson v National Australia Bank [2022] FCA 1222 (14 October 2022). It is a lengthy judgment so allow us to draw your attention to paragraph [432] where Her Honour was considering the opposing valuation expert’s opinion on the relevant ‘multiples’ which she considered was not well explained and affected the reliability of the opinion given. We contrast that with Her Honour’s consideration of Adam Giliberti’s evidence in paragraph [424] in which Her Honor said Adam Giliberti’s evidence had “detailed reasons for arriving at conclusions”. The Court found in favour of the bank on all matters of dispute.

United Petroleum Pty Limited v Roads and Maritime Services [2018] NSWLEC 35 (23 March 2018)

Adam Giliberti was called as an expert witness on behalf of the solicitors representing an Australian fuel retailer involving land in northern NSW being compulsorily acquired as part of the Pacific Highway upgrade project. The Land and Environment Court of New South Wales judgment referring to Adam Giliberti’s evidence is here United Petroleum Pty Limited v Roads and Maritime Services [2018] NSWLEC 35 (23 March 2018). It is a lengthy judgment so allow us to summarise that the Court preferred the evidence of Adam Giliberti over the opposing expert about the claim for the value of the business assuming a business extinguishment. The respondent subsequently appealed the decision and the Court of Appeal of New South Wales changed the law to deny the claim for loss of profits. This appeal decision has since fundamentally changed the compulsory land acquisition compensation landscape in New South Wales involving an unregistered lease between related parties and where the business ceases to exist as a result of the land acquisition.

The Trustee for Whitcurt Unit Trust v Transport for NSW [2021] NSWLEC 82 (30 July 2021)

Adam Giliberti was called as an expert witness on behalf of the solicitors representing a NSW government department involving the compulsorily acquistion of land as part of the Sydney airports gateway road project, which was formerly used as a golf driving range. The Land and Environment Court of New South Wales judgment referring to Adam Giliberti’s evidence is here The Trustee for Whitcurt Unit Trust v Transport for NSW [2021] NSWLEC 82 (30 July 2021). It is a lengthy judgment so allow us to draw your attention to the Court referring to Adam Giliberti’s evidence as a “reality check“ in paragraph [147] and found in favour of the NSW government department and denied the claim for loss of profits as compensation.

Mathew Massasso t/as Five Dock Pharmacy v Sydney Metro [2023] NSWLEC 115 (30 October 2023)

Adam Giliberti was called as an expert witness on behalf of the solicitors representing a NSW government department involving the compulsory acquistion of land as part of the Sydney Metro project, which was formerly occupied by a pharmacy business conducted by the applicant. There were numerous heads of compensation being claimmed by the applicant including 2 seperate claims involving loss of profits - a temporary loss and a permanent loss. The Land and Environment Court of New South Wales judgment referring to Adam Giliberti’s evidence is here Mathew Massasso t/as Five Dock Pharmacy v Sydney Metro [2023] NSWLEC 115 (30 October 2023). It is a lengthy judgment so allow us to draw your attention to the Court referring to Adam Giliberti’s evidence dealing with the temporary and permament losses [at paragraphs 551 to 561 and 651], where Adam Giliberti's opinion evidence was that there was no evidence of a temporary loss and that there were signficant evidential flaws with the assumptions adopted by the other forensic accounting expert dealing with the permanent  loss.  The Court considered the competing expert forensic accounting evidence on the temporary loss [at paragraphs 616 to 620] and permanent loss [at paragraphs 668 to 673] rejected the applicant's claims for loss profits in their entirety.

Adam Giliberti was called as an expert witness on behalf of the solicitors representing one group of shareholders of a company conducting a bakery business, in which the other group of shareholders originally claimed oppression under the Corporations Act 2001. The two groups of shareholders in dispute were originally were pursuing 'buy-out' orders, effectively requiring competing valuation evidence in connection with the value of the shares in this company.  The Supreme Court of New South Wales judgment referring to Adam Giliberti’s evidence can be found within paragraphs 66 to 74 of this judgement.  It is noted that the Judge considered Adam Giliberti's "detailed expert report" [66] and found his opinion on EBITDA multiples (which is often a highly contentious issue in these kinds of valuation disputes) to be based on "reasoning [which] was cogent" [74] with the clear implication that Adam Giliberti's expert evidence was preferred over the alternative expert evidence. 

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