Cantoni & Cantoni

In the matter of Cantoni & Cantoni, the appellant, Ms Cantoni, sought leave to appeal the primary judge's decision, which dismissed her application for leave to adduce expert valuation evidence in relation to the property owned by the parties. The property was the principal asset of the parties in their family law proceedings. The appellant argued that the primary judge had failed to provide adequate reasons for rejecting the tender of an expert report in her interim application for orders for the sale of the property. The Federal Circuit and Family Court of Australia Appellate Division considered the appeal and granted leave to appeal and allowed the appeal.

The court identified several legal issues, including whether the primary judge had erred in principle by failing to find that a special reason existed for granting the appellant's application to adduce expert valuation evidence. The court also considered whether the primary judge had failed to exercise the discretion in Rule 15.49(2) of the Family Law Rules in favour of the appellant's oral interlocutory application. The court further examined whether the primary judge had erred in principle and discretion in finding that the sale of the property would not prejudice the caveators on title, and whether the primary judge had failed to give adequate weight to the evidence of the proposed builder.

The court found that the primary judge had failed to give adequate reasons for rejecting the tender of an expert report and had not exercised the discretion in Rule 15.49(2) of the Family Law Rules in favour of the appellant's oral interlocutory application. The court also found that the primary judge had erred in principle and discretion in finding that the sale of the property would not prejudice the caveators on title, and had failed to give adequate weight to the evidence of the proposed builder. The court concluded that the primary judge's discretionary decision miscarried and was plainly wrong and manifestly unjust.

The court allowed the appeal, set aside the orders of the primary judge made on 2 July 2021, and remitted the review of the senior registrar's orders made on 12 March 2021 for rehearing by another judge of Division 1 of the Federal Circuit and Family Court of Australia. The court also granted the appellant a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) for the costs incurred by the appellant in relation to the appeal.