Ashcomb and Lawes

[2010] FamCA 442

FAMILY COURT OF AUSTRALIA

ASHCOMB & LAWES [2010] FamCA 442

FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce further expert evidence – relevant provisions of the Rules and the applicability

Family Law Act 1975 (Cth) – rr. 15.49(2), 15.52(3)

APPLICANT: Ms Ashcomb

RESPONDENT: Mr Lawes

FILE NUMBER: SYC 4784 of 2007

DATE DELIVERED: 25 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 25 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: M Gillies

SOLICITOR FOR THE APPLICANT: Joanna F S Moy

COUNSEL FOR THE RESPONDENT: P Campton

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. That leave is granted to the husband to adduce further expert evidence to be given by Mr O, valuer in relation to the current market valuation of the property situated at T.

2. That the experts Mr B and Mr O (“the experts”) confer as soon as possible this week for the purpose of discussing and determining the matters upon which they have agreement and the matters upon which they disagree as well as providing brief reasons for any such disagreement.

3. That the experts produce, sign and lodge with the Associate to Justice Rose as soon as possible this week a joint statement encompassing the matters referred to in Order 2.

4. That the costs of both parties associated with the conferral by the experts and production of a joint statement initially the costs of both parties be borne by the husband subject to further application which may be made by him to vary or set aside such an order and that such application may be made by the husband at the conclusion of all of the evidence in these proceedings.

5. That the single expert Mr B bring his valuation report up to date having regard to further relevant market sales in relation to all properties the subject of his reports and the costs incurred are to be paid equally by the parties.

6. That the single expert Mr B provide his further updated report pursuant to Order 5 as soon as possible this week or during such further time as the Court may order.

IT IS NOTED that publication of this judgment under the pseudonym Ashcomb & Lawes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC4784 of 2007

MS ASHCOMB

Applicant

And

MR LAWES

Respondent

REASONS FOR JUDGMENT

Introduction

1. A preliminary application arises for determination by me this morning, being the first day of a three-day trial in relation to property settlement and child support departure which had been fixed for hearing on 25 January 2010.

2. The preliminary matter arises as a result of an Application in a Case having being filed on behalf of the husband on 12 March 2010, in which he has sought an order that leave be granted to him to adduce further expert evidence in relation to the property at T.

Historical background

1. The brief historical background to that application is as follows.

2. On 24 March 2009 I noted that the husband may make an application for the appointment of another expert to provide a current market valuation in relation to the property in accordance with the Rules after further consideration and instructions are given following the receipt of the proposed updated valuation report by the single expert, Mr B.  The updated valuation report was received in or about the last week of January 2010.

3. On 19 February 2010 a Registrar noted in chambers that the husband seeks to have the matter relisted for the purposes of obtaining an extension of time to file and serve an application to adduce further expert evidence of the nature to which I have earlier referred.

4. On 12 March 2010 the relevant application was filed and given a return date being 10.00am today.

5. To say that was not a practical or pragmatic course to be followed is probably an understatement.  The reason is that it is obvious that should such an application be acceded to, then pursuant to the Rules, the two experts would have to confer in relation to matters upon which they agree and disagree, as well as providing brief reasons for such disagreement, if any, to be followed by a joint signed statement to be lodged with the Court.

6. The time factors that those steps would involve are such that significant pressure would be placed upon the experts to complete those matters and be available to give oral evidence, time permitting, during the three days fixed for the trial to be commenced today.

7. Consequently, there was an obvious necessity for the husband’s application to be listed at a reasonable time for determination prior to the commencement of the trial so that, in the event that the application was successful, the consequential steps that would need to be followed by the experts could be done in a timely fashion.  Unfortunately, such an approach was not followed in this particular matter.

Conclusion

1. The husband relies upon Rules 15.49(2)(a) and (b) as the grounds upon which the application should be successful.  Counsel for the husband provided a succinct summary of the differences between the two valuers.  That was not the subject of dispute by counsel for the wife.

2. I am satisfied that the differences between the valuers do represent a substantial body of opinion of a contrary nature as between the two written reports of the valuers.

3. In addition, the valuer sought to be relied upon by the husband relies upon what he contends to be a more recent list of comparable sales than those relied upon by the single expert.  Whether or not those further sales are indeed comparable may be a matter upon which further evidence will be required.

4. I have also taken in account the matters set out in Rule 15.52(3) for the purpose of my determination.  It is clear that the impact of the appointment of a further expert witness may not only increase legal costs but also cause the hearing of the proceedings to be extended.

5. To be balanced against that, are the complexities of the issues as between the experts, which counsel for the husband succinctly outlined.  There may be an injustice caused to the husband in the event of the application being refused in those circumstances which may, in any event, require a term and condition to be attached to any leave that is granted.  Namely, that any indulgence to be provided in his favour should be met by an order for costs so that the wife would not be prejudiced by increased costs that will be incurred as a result of the conferral between the experts, the production of their joint statement, and the extension of hearing time.

6. There is also the possibility from a pragmatic viewpoint that two experts of the qualifications and experience of the subject experts may reach agreement in relation to all significant issues the subject of their respective reports.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Date:  3 June 2010