Carolan & Lawler - [2021] FedCFamC1F 239

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carolan & Lawler [2021] FedCFamC1F 239

File number(s): NCC 781 of 2021

Judgment of: CLEARY J

Date of judgment: 29 November 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – property – expert evidence – where a single expert is appointed by the parties to value a property, being a residence and buildings associated with a “retreat” business presently run by a company of which the wife is a director – Where the husband did not accept the valuation provided and engaged another valuer as an adversarial expert witness – Where there is a significant difference in the two valuations - Where the husband pursuant to r 7.08 seeks leave to adduce evidence by that valuer as an expert witness in the proceedings – Where the wife does not accept the valuation obtained by the husband and does not accept the premise of the valuation and is opposed to its reliance - Ordered pursuant to r 7.31 a conference to take place between the two valuers.

Legislation:
Family Law Act 1795 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited: Gemmell & Gemmell [2009] FamCA 29
Spencer v The Commonwealth (1907) 5CLR 418
Daniels v Walker (2001) WLF1328

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: 25 November 2021

Place: Newcastle

Counsel for the Applicant: Mr Rugendyke

Solicitor for the Applicant: Joplin Lawyers

Counsel for the Respondent: Mr Batey

Solicitor for the Respondent: Fazzini Lawyers & Consultants
ORDERS

NCC 781 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CAROLAN

Applicant

AND:
MS LAWLER

Respondent

ORDER MADE BY:

CLEARY J

DATE OF ORDER:

29 NOVEMBER 2021

THE COURT ORDERS THAT:
1.Pursuant to Rule 7.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the parties shall arrange for the expert witnesses:
·Mr B (D Valuers); and
·Mr C (E Valuers);

to confer with each other within 28 days from the date of these orders (unless an extension of time is agreed between the parties).
2.The expert witnesses must discuss the issues of:
2.1Comparable sales contained within the respective reports;
2.2The methodology of:
2.2.1Mr B in valuing the property as “vacant possession” such that any purchaser could use the land and improvements for any purpose;
2.2.2Mr C in valuing the property “excluding any value attributable to the goodwill of the business being conducted on the site” but considering “goodwill as a going concern (but excluding stock) as at date of valuation”;[1]
[1] Valuation of Mr C, Purpose of Valuation, page 7.

2.3The basis of the valuation:
2.3.1Mr B “inference from past transactions”;[2]
[2] Valuation of Mr B, page 40.
2.3.2Mr C “direct comparison”;[3]
[3] Valuation of Mr C, page 3.

2.4Any other issue which in the view of one or both experts bears on the difference in values attributed:
·Mr B $3,000,000;
·Mr C $3,980,000.

3.Leave is granted to D Valuers to include the CV,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carolan & Lawler

Details

AGLC: Carolan & Lawler [2021] FedCFamC1F 239
Case: [2021] FedCFamC1F 239
Decision Date

CaseChat Overview and Summary

In the matter of Carolan v Lawler, the applicant, Mr Carolan, sought permission to tender a report and rely on the evidence of an additional expert, in addition to the appointed joint expert. The application was opposed by the respondent, Ms Lawler. The dispute centred on the valuation of a property owned by the parties, which included a residence and buildings associated with a "retreat" business currently run by a company of which the wife is a director. The husband did not accept the valuation provided by the joint expert and engaged another valuer as an adversarial expert witness.

The legal issues before the court included whether permission should be granted for the husband to tender a report and rely on the evidence of the second expert, and whether the two valuers should be ordered to confer with each other to discuss the differences in their valuations. The court considered the principles established in Gemmell & Gemmell, which emphasised the importance of obtaining a joint report wherever possible and the need to explore all avenues to avoid the expense of competing experts giving evidence at trial.

The court found that the parties should not be put to the costs of having competing experts giving evidence at a trial unless all efforts have been made to resolve differences between experts. The court concluded that the appropriate course was for the two valuers to meet and discuss all issues in dispute, including the methodology of the valuations and the basis for the significant difference in the valuations. The court ordered the two valuers to confer with each other and report back to the parties, and granted leave to the first valuer to include his curriculum vitae and full qualifications and experience in his valuation report. The application and response to the application in a case were dismissed with no order as to costs.

The court's orders included a requirement for the two valuers to discuss the issues of comparable sales, the methodology of the valuations, the basis of the valuation, and any other issues which in the view of one or both experts bear on the difference in values attributed. The court also granted leave to the first valuer to include his curriculum vitae and full qualifications and experience in his valuation report. The application and response to the application in a case were dismissed with no order as to costs. The parties conceded that if the matter cannot be resolved by negotiation or mediation or settlement otherwise, fresh valuation is likely to be undertaken closer to the date of a trial. The exercise of the two valuers involved to date and their report to the parties, if it does nothing else, may make it easier to agree on the terms for a single expert, whoever it is, to be relied on at trial.

Orders