“Expert insolvency practitioner” does not extend to foreign law specialists

The Western Australia Court of Appeal has refused leave to appeal from an interlocutory ruling excluding new expert evidence in the long-running Tiger Resources litigation, ruling that the phrase “expert insolvency practitioner” does not extend to foreign law specialists offering foundational evidence about a different legal system.

The dispute arises from an order under s 444GA of the Corporations Act 2001 (Cth) permitting the deed administrators of Tiger Resources Ltd to transfer all issued shares for nil consideration. In November 2024, the Court of Appeal identified legal error in the primary reasoning but was unable to determine whether the shares had residual value on the existing record. Rather than remit the matter, the Court directed that a discrete issue be tried under s 59(4): what was the residual value of Tiger’s ordinary shares as at 28 October 2021, assessed on a liquidation basis. The trial is scheduled to be conducted before Justice Cobby over 10 days commencing today (19 February 2026).

Tiger’s value turned largely on its indirect interest in a Congolese copper mine. At first instance, expert valuers and insolvency practitioners had proceeded on the assumption that the insolvency regime in the Democratic Republic of Congo was broadly comparable to Australia. Ahead of the s 59(4) hearing, Yingkou Yangzhou Trade Co Ltd and Jinji Resources Finance Pty Ltd, creditors and stakeholders opposing the transfer of Tiger’s shares for nil consideration under the s 444GA order, sought to introduce expert evidence from a Congolese lawyer, Pathy Bootsi, addressing the operation of insolvency law in the DRC and its impact on liquidation realisations.

The primary judge ruled Mr Bootsi’s affidavit inadmissible, holding that he was not an “expert insolvency practitioner” within the meaning of the Court of Appeal’s earlier directions and that his report fell outside the permitted scope of evidence. Seeking leave to appeal, the applicants argued that the ruling was legally wrong and that the s 59(4) orders should be varied to allow the evidence in any event.

The Court refused leave to appeal on the basis that leave will generally require arguable error and a risk of substantial injustice. Here, the ruling was interlocutory and any error could be addressed on appeal from the final determination under the Gerlach principle. There was no adverse effect on substantive rights sufficient to justify fragmentation of the proceedings.

More fundamentally, the Court held that the primary judge’s construction of the s 59(4) orders was correct. The phrase “expert insolvency practitioner” referred to experts of the same kind as those who gave distressed sale discount evidence at trial, namely professional insolvency practitioners, not foreign law specialists offering foundational evidence about a different legal system.

Permitting Mr Bootsi’s evidence would have expanded the s 59(4) hearing into a new intermediate controversy about Congolese insolvency law, contrary to repeated appellate warnings that the process was not to become a de facto retrial.

In a parallel application, the applicants sought to vary the s 59(4) orders to admit Mr Bootsi’s affidavits and related DRC articles of association, a pre-DOCA scheme expert report, and a “life of mine” financial model used in valuation analysis.

The Court rejected the attempt to introduce foreign insolvency law evidence, emphasising delay, lack of diligence, and prejudice to the opposing party given the imminent 10-day s 59(4) hearing. The material could and should have been raised at trial.

On the “life of mine” model, the Court drew a distinction between admissibility and weight. Although the model had not been formally tendered at trial, no objection had been taken to expert reports relying on it. The Court stated that parties are generally bound by their forensic choices and could not now object to admissibility on that ground. However, arguments as to the weight to be given to valuation evidence relying on an untendered model remained open at the s 59(4) hearing.

The Court’s reasons repeatedly invoked finality and disciplined case management, stressing that s 59(4) was designed to answer a confined valuation question, not to allow parties “free rein to recast or improve their respective cases”.

Given the protracted history of the Tiger Resources litigation and the proximity of the scheduled hearing, introducing new expert disciplines would have risked vacating trial dates and further delay. As a result, the Court dismissed both the application for leave to appeal and the application to vary directions, with costs following the event.

Read the decision here.

James Hutton SC of Eleven Wentworth, Alexandra Pieniazek of Shoreline Chambers and Paul Walker of Shoreline Chambers (instructed by HWL Ebsworth) acted for joint administrators Robert Kirman and Robert Brauer of McGrathNicol.

Stewart Maiden KC of List G Barristers, Ben Willesee of Francis Burt Chambers, and N J Wallwork of Quayside Chambers (instructed by Lavan) represented Yingkou Yangzhou Trade Co Ltd and Jinji Resources Finance Pty Ltd.