Artinos & Artinos (No 6)

In the matter of Artinos & Artinos (No 6), the Federal Circuit and Family Court of Australia was tasked with deciding whether to allow the husband's expert witness to provide evidence at trial, as he sought to challenge the valuation provided by the wife's expert. The wife, who wished to retain the property, opposed the husband's application, arguing that the court should rely on the evidence of her expert alone. The legal issue before the court was whether the trial judge should permit evidence from another expert when there were considerable differences in the amounts in relevant valuations, and whether the interests of justice would be served by doing so. The court considered the potential for an evidential vacuum if the husband's application were refused, and whether the wife's opposition to the application was sufficient to warrant allowing the husband's expert to provide evidence.

The court found that, although the potential for an evidential vacuum was a significant consideration, the wife's opposition to the husband's application, and her awareness of the risk of a sale if the application were refused, were also important factors. The court noted that a trial judge is not bound to accept the evidence of a single expert, and can come to a figure that is different from that put forward by the experts if the evidence is properly approached. However, the judge cannot become a third valuer. The court concluded that, in this case, the difference in the valuations was not out of proportion to the likely additional costs of permitting the evidence to be adduced, and the interests of justice would be served by allowing the husband's expert to provide evidence at trial.

The court's reasoning was based on the need to avoid an evidential vacuum, particularly in valuation cases where the effective alternative of forcing a sale is a far from desirable option if one party wishes to retain a property. The court emphasised that the expertise of the valuer is in making a nuanced assessment of which sales are truly comparable and then forming a view as to a valuation after weighing the different comparable sale prices. Where the value contended by the party challenging the single expert is outside of the range identified by the single expert, the interests of justice would tend to weigh in favour of allowing evidence from the other expert, provided that such evidence is not obviously flawed and the difference involved is not out of proportion to the likely additional costs of permitting the evidence to be adduced.

The court's outcome was to permit the husband's expert to provide evidence at trial, as the difference in the valuations was not out of proportion to the likely additional costs of permitting the evidence to be adduced, and the interests of justice would be served by allowing the husband's expert to provide evidence at trial. The court's decision highlights the importance of considering the potential for an evidential vacuum and the need to avoid forcing a sale where one party wishes to retain a property. The court's decision also emphasises the importance of properly approaching the evidence and avoiding the situation where a judge becomes a third valuer.