Byrd and Byrd (Filing Expert’s Report During Trial)

[2011] FamCA 808

FAMILY COURT OF AUSTRALIA

BYRD & BYRD (FILING EXPERT’S REPORT DURING TRIAL) [2011] FamCA 808

FAMILY LAW - EVIDENCE – expert evidence – file an updated expert report – where earlier report struck out – prejudice flowing to each party

APPLICANT: Ms Byrd

RESPONDENT: Mr Byrd

FILE NUMBER: SYC 767 of 2009

DATE DELIVERED: 27 September 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 27 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rees

SOLICITOR FOR THE APPLICANT: Watts McCray

COUNSEL FOR THE RESPONDENT: Mr Richardson SC
Mr Campton

SOLICITOR FOR THE RESPONDENT: Gibsons Lawyers

Orders

1. The wife is permitted to file an updated report of Ms D valuing S Company based upon the 2011 figures for the business.

IT IS NOTED that publication of this judgment under the pseudonym Byrd & Byrd (filing expert’s report during trial) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 767 of 2009

Ms Byrd 

Applicant

And

Mr Byrd

Respondent

REASONS FOR JUDGMENT

1. It having been determined that the report of Ms D relating to the value of S Company contained in her affidavit filed 16 September 2011 is rejected as evidence in the current proceeding, the wife makes the application that the wife be permitted to file an updated report of Ms D valuing S Company, based upon 2011 figures for the business.  That application is opposed by the husband.

2. The husband invited the wife to put any evidence before the court upon which she relied for this interlocutory application.  The wife nominated the report of Ms D annexed to her affidavit filed 12 May 2011. 

3. In response the husband tendered a copy of a letter dated 25 May 2011 from Ms D to the wife’s solicitors pointing out an error which caused a $1 million adjustment to her valuation contained in her report attached to the 12 May 2011 affidavit.  The husband also tendered a copy of a consent order made 24 May 2011 which required the wife to cause Ms D to complete the exercise she now is asked to do.  The husband says the application is made in the face of no evidence as to why the wife did not cause Ms D to comply with the orders of 24 May 2011. 

4. Further there is no evidence from Ms D to explain why she would now have the expertise required to value S Company when she deferred to the expertise of Mr K in evidence which has now been struck out.  The husband submits the order is sought with no regard to the impact upon the husband and the possibility of the court granting an adjournment.  No undertaking is proffered to meet the husband’s costs should the case need to be adjourned as a result of the late filing of a crucial piece of evidence.

5. Ms Rees, counsel for the wife, says that the report is available to file now.  The report has not been provided to the husband’s lawyers as yet however it clearly can be provided.  Ms Rees says the exercise now facing the court is to weigh up the prejudice which might flow to each of the parties resulting from the granting or refusing of the wife’s application. 

6. With respect I agree with the submission of the wife’s counsel.  The wife says she is faced with having no evidence at all as to the value of S Company if the application is refused.  The husband says he faces having to seek an adjournment due to the receipt of crucial evidence in the middle of the trial.  In my view the pendulum swings in favour of the wife on this application and I propose to grant the application of the wife.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 27 September 2011.

Associate:  

Date:  10 October 2011