[2025] NSWSC 1343

Austpipe Plumbing Services Pty Ltd v Doyle (No 3)

Notice of motion dismissed

Catchwords

EVIDENCE – Expert evidence – application for single expert to be appointed pursuant to r 31.37 of the UCPR – complex and contested quantum issues – unclear scope of expert’s task – financial prejudice to defendants – whether appointment would advance the just, quick and cheap resolution of the real issues – HELD – application dismissed

Cases cited

Austpipe Plumbing Services Pty Ltd v Doyle[2024] NSWSC 1464
Austpipe Plumbing Services Pty Ltd v Doyle[2025] NSWSC 573
Walker Group Constructions v Bluescope Steel and QBE Insurance[2017] NSWSC 678

Legislation cited

Civil Procedure Act 2005 (NSW), § 56, 57
Corporations Act 2001 (Cth), § 1317H
Uniform Civil Procedure Rules 2005 (NSW), § 31.37, 31.45

Judgment

INTRODUCTION

[1]
The plaintiff, Austpipe Plumbing Services Pty Ltd, has applied by notice of motion filed 17 September 2025 for an order pursuant to r 31.37 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) appointing Anne Dale as a single expert for the parties to prepare a report in relation to the issue of the quantum of the damages sought by Austpipe against the defendants in these proceedings. Austpipe also seeks ancillary orders should the appointment of a single expert be made, including in relation to the letter of instruction and the costs be shared. The defendants oppose the appointment of a single expert.
[2]
For the reasons set out below, I have determined that Austpipe’s application for the appointment of a single expert should be dismissed with costs.

RELEVANT FACTS

[3]
On 8 July 2022, Austpipe commenced these proceedings against six defendants by filing the statement of claim. The first defendant, Craig Doyle, is a former director, shareholder and employee of Austpipe. The fifth defendant, Lisa Doyle, is Mr Doyle’s wife. The second defendant, MKR Services (NSW) Pty Ltd as trustee for the Doyle Family Trust, is in liquidation and has taken no active part in the proceedings. The third defendant is SPE Services Pty Ltd, the fourth defendant is Doyle SMSF Investing Pty Ltd and the sixth defendant is CLD Espresso Pty Ltd. I will refer to the first, third, fourth, fifth and sixth defendants collectively as the defendants.
[4]
In summary, Austpipe alleges that since around 2011, Mr Doyle, by himself or by the second, third, fourth and/or sixth defendants has:
1. (1)
  provided mechanical plumbing and/or piping and/or refrigeration and/or air-conditioning services in competition with Austpipe;
2. (2)
  diverted customers or potential customers of Austpipe (and associated contracts) to the value or in excess of $5,293,307.71 to the second, third, fourth and/or sixth defendants;
3. (3)
  diverted labour that has been paid for by Austpipe to conduct jobs through the second, third, fourth and/or sixth defendants;
4. (4)
  used Austpipe’s stock, materials and vehicles to perform work through the second, third, fourth and/or sixth defendants; and
5. (5)
  used Austpipe’s confidential information to contact and engage suppliers and customers of Austpipe, provide quotes to Austpipe’s customers that were lower than what had been previously quoted by Austpipe and/or to divert customers to Austpipe to himself and the second, third, fourth and sixth defendants.
[5]
In essence, Austpipe claims that Mr Doyle acted in breach of his fiduciary duties, the implied terms in his employment contract, the statutory duties he owed under the Corporations Act 2001 (Cth) and his equitable duty of confidence. The other defendants are alleged to be knowing assistants, knowing recipients or knowingly concerned in Mr Doyle’s conduct.
[6]
The monetary relief sought by Austpipe in the statement of claim is as follows:
1. (1)
  an account of profits, or in the alternative, equitable compensation (prayer 1);
2. (2)
  damages for breach of contract (prayer 2);
3. (3)
  compensation pursuant to s 1317H of the Corporations Act (prayer 3); and
4. (4)
  damages for monies had and received (prayer 9).
[7]
Austpipe also claims interest and costs.
[8]
On 6 September 2022, the defendants filed their defence baldly denying the allegations made in the statement of claim.
[9]
On 27 September 2022, the plaintiff filed its reply.
[10]
It has taken a regrettably inordinate time for these proceedings to be prepared for trial, with continual delays by both sides in complying with timetables ordered by the court. The proceedings have now been running for more than three years. A trial does not appear to be imminent.
[11]
There have been numerous directions hearings involving orders for pleadings, evidence and disclosure, often arising where there has been non-compliance with those orders. There have also been multiple interlocutory skirmishes, including a motion by the defendants seeking security for their costs, a motion by the defendants seeking delivery up orders, a motion by Austpipe seeking to set aside various subpoenas issued at the request of the defendants, a motion by the defendants seeking to challenge Austpipe’s claim for privilege over documents produced on subpoena issued at the request of the defendants and a motion by Austpipe seeking the separate determination of all questions of liability in advance of the quantification of damages.
[12]
On 31 October 2023, Austpipe filed and served its evidence in chief.
[13]
On 31 May 2024, the defendants filed and served their evidence in response. Austpipe says that it was only on receipt of this evidence that it became aware that Mr Doyle’s defence was that during a conversation that took place on a golf course in 2006 (some five years before Austpipe was registered), consent was provided by Mr Chisholm on behalf of Austpipe for Mr Doyle to carry on a business in competition. Mr Chisholm denies that such a conversation ever took place or that consent was provided to Mr Doyle.
[14]
On 8 July 2024, Austpipe filed its evidence in reply.
[15]
On 19 July 2024, Austpipe sought disclosure by categories of documents from the defendants. The categories sought were broad in description and the time periods covered by them. Verified lists of documents were provided by the defendants in November and December 2024. It appears that approximately 42,000 documents were disclosed by the defendants, although only about 7,000 were physically produced, with the remaining 35,000 or so documents being those which the defendants had previously provided to Austpipe.
[16]
Austpipe asserts that the disclosure by the defendants is incomplete but has not identified any deficiencies and has not brought any application seeking further disclosure by the defendants.
[17]
On 19 November 2024, Austpipe’s objection to the inspection of documents produced on subpoena was dismissed with costs by Elkaim AJ: Austpipe Plumbing Services Pty Ltd v Doyle [2024] NSWSC 1464.
[18]
None of the parties have prepared any expert evidence on the quantification of damages.
[19]
Melissa Inglis of Rose Litigation Lawyers, the solicitors for Austpipe, has given evidence that to adequately instruct a forensic accountant to prepare the necessary evidence and obtain a report addressing Austpipe’s claim for damages could take as long as four to six months and that the cost of such a report could be as high as $50,000. Ms Inglis has also given evidence that if the defendants retain an expert to prepare a report in response, it could take as long as two to three months and would also cost a “not insignificant amount”.
[20]
Christopher Nielsen of McCullough Robertson Lawyers, the solicitors for the defendants, gave evidence that he agreed with Ms Inglis’ estimate that $50,000 reflects a likely cost for a quantum expert. Mr Nielsen also gave evidence that the defendants have already engaged a quantum expert (Michael Potter of Ernst & Young) in anticipation of Austpipe serving quantum evidence and have incurred costs of $11,000 in relation to that expert. It appears that Mr Potter was engaged for the purpose of forensically reviewing Austpipe’s financials as part of the defendants’ consideration of bringing a cross-claim. The retainer of Mr Potter is not in evidence so I am unable to determine the scope of the work he was requested to undertake.
[21]
As recently as 30 May 2025, Austpipe’s application for orders that all questions of liability be determined separately and in advance of the quantification of damages was dismissed with costs by Brereton J: Austpipe Plumbing Services Pty Ltd v Doyle [2025] NSWSC 573.
[22]
On 7 August 2025, Rose Litigation sent a letter by email to McCullough Robertson proposing that a single expert be engaged and nominating three possible appointees. On 19 August 2025, Rose Litigation sent an email to McCullough Robertson indicating that Ms Dale had given a typical cost estimate of between $40,000–$50,000 (plus GST) to prepare an expert report. In an email dated 4 September 2025, McCullough Robertson replied that the defendants were not minded to proceed with joint quantum expert evidence because they considered the quantum case to be deficient and the defendants have limited means to defend the proceedings.
[23]
Mr Nielsen also gave evidence that the defendants have incurred fees and disbursements for the proceedings to date of $380,432.05 (including GST), the defendants are currently in arrears in the payment of those costs by $113,695.73 in respect of invoices dating back to 30 August 2024 and the defendants have agreed a payment plan of $2,000 each week to reduce this amount progressively. Mr Nielsen did not give any evidence of the full financial position of the defendants, although the inference arises from their failure to pay the invoices rendered by McCullough Robertson in a timely way that the defendants are financially constrained.
[24]
On 17 September 2025, Austpipe filed this application for the appointment of a single expert to prepare a report in relation to the quantum of damages.

LEGAL PRINCIPLES

[25]
Rule 31.37 of the UCPR is contained within subdivision 4 of Part 31 of the UCPR, which sets out the relevant rules concerning single experts. Rule 31.37 of the UCPR states:
[26]
Relevantly, r 31.45 of the UCPR deals with the remuneration of a single expert as follows:
[27]
The parties agreed on the legal principles to be applied by me to determine whether an order for a single expert should be made under r 31.37 of the UCPR.
[28]
Those relevant principles are contained in Walker Group Constructions v Bluescope Steel and QBE Insurance [2017] NSWSC 678, in which McDougall J said at [10]–[11] and [18]–[21]:
[29]
As mentioned in Walker Group, in the exercise of the discretion under r 31.37 of the UCPR, I must also have regard to the requirements of ss 56 and 57 of the Civil Procedure Act 2005 (NSW) (CPA).
[30]
The overriding purpose of the CPA and the UCPR in their application to civil proceedings in this court is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1) of the CPA. I must seek to give effect to that overriding purpose when I exercise any power in the CPA or the UCPR: s 56(2) of the CPA.
[31]
In seeking to give effect to the overriding purpose, I must have regard to the objects of the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties: s 57(1) of the CPA.

SUBMISSIONS

[32]
Austpipe submits that it does not know and cannot ascertain from the documents discovered by the defendants the amount of revenue generated by the defendant since 2011 and where that revenue has been applied, including whether it has been used to increase the defendants’ equity in certain properties. Austpipe says that the engagement of a single expert will:
1. (1)
  minimise the parties’ ongoing costs in preparing quantum evidence;
2. (2)
  reduce the time required to prepare the matter for trial;
3. (3)
  reduce the overall duration of the trial;
4. (4)
  assist the parties in engaging in mediation or other negotiations;
5. (5)
  expedite the progress of the matter in accordance with the overarching obligations of the parties and avoid further unnecessary delay; and
6. (6)
  ensure the court is best assisted by expert evidence.
[33]
The defendants submit that a single expert should not be ordered because:
1. (1)
  the assessment of damages in this case cannot be described as uncomplicated and Austpipe’s case on quantum and how it will run its quantum case remains unclear having regard to the following:
2. (2)
  the defendants have already engaged an expert to advise in respect of quantum and have incurred $11,000 in fees for the work performed by him; and
3. (3)
  the defendants have limited financial means and are paying their outstanding legal fees on a payment plan, so they should not be forced to bear 50% of the cost of Austpipe deciding how to prepare its quantum case as proposed by Austpipe, and they cannot commit to sharing the costs of the single expert under r 31.45(2) of the UCPR.
[34]
To ameliorate any financial constraints of the defendants, Austpipe has offered to meet two-thirds of the costs of the single expert if one is appointed, with the defendants left to pay the remaining one-third of those costs. Austpipe also says that if the single expert is appointed and the defendants are subsequently unable to pay the expert’s costs, it would be open to the defendants to re-list the matter to obtain an order that they are not required to pay any of those costs and leave open the possibility of Austpipe paying those costs in full to gain access to the report of the single expert.

CONSIDERATION

[35]
In my opinion, this is not a case in which the appointment of a single expert is appropriate. There are five reasons for this conclusion, which I have addressed in turn below:
1. (1)
  Austpipe does not seem to have a clear idea of what precisely the single expert should be asked to do. Austpipe has prepared the proposed letter of instruction to the single expert. On the one hand, Austpipe proposes that the single expert should “assess the quantum of damages that has allegedly been suffered by Austpipe”. On the other hand, Austpipe is also seeking to have the single expert conduct an “assessment of the damages for account of profits and breach of contract”. Austpipe even seems to be suggesting in its submissions that the single expert should conduct a form of tracing of proceeds into properties. It is an elemental matter that an account of profits is not damages and involves a completely different exercise. This confusion shows the different monetary remedies which are sought by Austpipe, each of which do not appear to be straightforward. I am concerned that the inability of Austpipe to clearly articulate what the single expert is being asked to do in the quantification of its own claims will make that exercise more extensive, complicated and costly than it is portrayed.
2. (2)
  The defendants should not be required to bear the cost of a single expert in circumstances where they are not even able to pay their own solicitors, who have been waiting for in excess of 12 months for their fees and disbursements to be paid under a payment plan. In the circumstances, the defendants should have the option of whether they wish to spend any money at all on expert evidence responding to the any expert evidence prepared on behalf of Austpipe quantifying its various claims. In essence, Austpipe should pay the costs of preparing its own expert evidence.
3. (3)
  Due to the ongoing interlocutory disputes which have bedevilled the progress of these proceedings, I am not satisfied that Austpipe and the defendants will be able to readily agree on precisely what it is that the single expert will be asked to do. This is particularly the case where Austpipe has not yet made any election as between its monetary remedies. In effect, Austpipe appears to want to share the costs of a single expert determining the quantum under each of its remedies before it chooses which one it wishes to proceed with. I consider that this is not a just outcome for the defendants.
4. (4)
  Beyond the assertions by Austpipe, I am not satisfied that I can conclude that the appointment of a single expert will result in a reduction of the costs of the parties in relation to the issue of quantum, a reduction in the overall duration of the trial and the expedition of these proceedings. Given that the appointment of a single expert would still enable the defendants to adduce expert evidence from another expert by leave of the court pursuant to r 31.44 of the UCPR, it may well be the case that the costs of dealing with the expert evidence issue are actually increased and the overall duration of the trial materially lengthened despite the appointment of a single expert.
5. (5)
  Austpipe appears to want to use the single expert to resolve questions of whether the disclosure given by the defendants is deficient, submitting that the single expert will be able to obtain access to documents which have not been disclosed by the defendants. I do not think that using a single expert in this way is appropriate. I consider that this course of action is very likely to draw the single expert into disputes between the parties over the alleged inadequacy of the disclosure, resulting in additional costs in using the single expert. Although it will probably result in further interlocutory disputes and generate yet more costs, I consider that if Austpipe has complaints about the disclosure given by the defendants then it should fully ventilate them and have them resolved without drawing a single expert into those disputes.
[36]
Based on these matters, applying the words of Walker Group at [10], the task proposed for the single expert by Austpipe appears to me to be far from “essentially uncontentious or relatively uncomplicated”. In my view it does not meet the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. The parties should proceed to deal with the preparation of expert evidence in the usual way.

ORDERS

[37]
For the reasons stated above, I propose to make the following orders:
1. (1)
  The notice of motion filed 17 September 2025 by the plaintiff (Motion) is dismissed.
2. (2)
  The plaintiff is to pay the defendants’ costs in relation to the Motion.