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Conias Hotels Pty Ltd v Murphy

Conias Hotels Pty Ltd v Murphy

Case [2012] QSC 297 19 September 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297

PARTIES:

CONIAS HOTELS PTY LTD ACN 120 319 283 AS TRUSTEE FOR THE CONIAS HOTEL TRUST NO. 2
(plaintiff)
v
SHAUGHN MURPHY
(first defendant)
and
REWUKE PTY LTD ACN 002 628 499
(second defendant)

FILE NO:

3771 of 2009

DIVISION:

Trial Division

PROCEEDING:

By way of application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED EX TEMPORE ON:

19 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2012

JUDGE:

Applegarth J

ORDERS:

(1)     Mr Gavin Duthie of G Duthie Consulting be appointed as a further expert valuer in the proceeding to prepare a report in relation to the value of the Transcontinental Hotel as at 12 May 2008.

(2)     The plaintiff serve a report from Mr Duthie valuing the Transcontinental Hotel as at 12 May 2008 by or on 19 October 2012 (the Duthie Report).

(3)     The parties provide a copy of the Duthie Report to Ian Skelsey by or on 22 October 2012.

(4)     Mr Skelsey prepare a report (if any) in response to the Duthie Report by 12 November 2012.

(5)     Messrs Duthie and Skelsey are directed to confer and produce a joint report by 4.00pm on 30 November 2012 in respect of:

(a)     those valuation issues, facts and matters upon

      which they agree;

(b)    those valuation issues, facts and matters not

      agreed, with short reasons as to why agreement
      has not been able to be reached; and

(c)     those further or other enquiries, instructions,

      documents or evidence which would assist in the
      resolution of the issues on which the experts

               disagree.

(6)     The joint experts’ conference be otherwise convened and held in accordance with the requirements of the Joint Conference Guidelines set out in Attachment 2 to Supervised Case List, Practice Direction No. 11 of 2012.

(7)     The joint experts’ report be produced, signed and provided to the parties’ legal representatives and a copy filed in Court by the plaintiff by 4.00pm on
3 December 2012.

(8)     Subject to Order 9(b), the plaintiff pay:

(a)   the defendants’ reasonable costs of considering

      and responding to the Duthie Report;

(b)     the costs of any further report from Mr Skelsey

      prepared pursuant to paragraph (4); and

(c)   the costs of the joint experts’ conference and

       joint experts’ report referred to in paragraph       (5) above,

as agreed or, if agreement is not reached, to be fixed by the Court.

(9)     The costs referred to in paragraph (8) are to be paid by the plaintiff:

(a)     within 28 days of the quantum of costs being

       agreed or fixed by the Court; and

(b)     on the basis that the ultimate liability for those

      costs be reserved.

(10)     The costs of the application and of the appearance

         on 19 September 2012 are otherwise reserved.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – EVIDENCE – EXPERT EVIDENCE – where expert valuer has been appointed – where significant difference of opinion between valuers…

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 Conias Hotels Pty Ltd v Murphy

Details

AGLC: Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297
Case: [2012] QSC 297
Decision Date: 19 September 2012

CaseChat Overview and Summary

In the matter of Conias Hotels Pty Ltd v Murphy, the plaintiff sought to have a further expert valuer appointed to provide an opinion on the valuation of the Transcontinental Hotel. The case was heard in the Supreme Court of Queensland. The dispute between the parties centred around the valuation of the hotel as of 12 May 2008, with significant disagreement between the two appointed expert valuers.

The central legal issue was whether the Court should allow the plaintiff to call further expert evidence in light of the significant difference of opinion between the existing experts. The plaintiff argued that the appointment of a further expert valuer was necessary to resolve the substantial discrepancy between the valuations provided by the existing experts. The defendants opposed this application on the basis that the existing expert evidence was sufficient and that the appointment of a further expert would be wasteful and unjust.

The Court found that the appointment of a further expert valuer was warranted given the significant disparity in the opinions of the existing experts. The Court held that the application of rule 429N(3) of the Uniform Civil Procedure Rules 1999 was appropriate in these circumstances. The Court ordered that Mr Gavin Duthie be appointed as the additional expert, with a series of steps to be followed for the preparation and submission of reports, including joint expert conferences and the production of joint reports.

The Court made orders for the appointment of Mr Duthie as an expert valuer, the timelines for the preparation of reports, the sharing of reports among the parties, and the payment of costs associated with the process. The costs of the application and appearance were reserved.

Orders

Orders of the court

(1) Mr Gavin Duthie of G Duthie Consulting be appointed as a further expert valuer in the proceeding to prepare a report in relation to the value of the Transcontinental Hotel as at 12 May 2008.

(2) The plaintiff serve a report from Mr Duthie valuing the Transcontinental Hotel as at 12 May 2008 by or on 19 October 2012 (the Duthie Report).

(3) The parties provide a copy of the Duthie Report to Ian Skelsey by or on 22 October 2012.

(4) Mr Skelsey prepare a report (if any) in response to the Duthie Report by 12 November 2012.

(5) Messrs Duthie and Skelsey are directed to confer and produce a joint report by 4.00pm on 30 November 2012 in respect of:

(a) those valuation issues, facts and matters upon

which they agree;

(b) those valuation issues, facts and matters not

agreed, with short reasons as to why agreement

has not been able to be reached; and

documents or evidence which would assist in the

resolution of the issues on which the experts

disagree.

(6) The joint experts’ conference be otherwise convened and held in accordance with the requirements of the Joint Conference Guidelines set out in Attachment 2 to Supervised Case List, Practice Direction No. 11 of 2012.

(7) The joint experts’ report be produced, signed and provided to the parties’ legal representatives and a copy filed in Court by the plaintiff by 4.00pm on

3 December 2012.

(8) Subject to Order 9(b), the plaintiff pay:

(a) the defendants’ reasonable costs of considering

and responding to the Duthie Report;

(b) the costs of any further report from Mr Skelsey

prepared pursuant to paragraph (4); and

joint experts’ report referred to in paragraph (5) above,

as agreed or, if agreement is not reached, to be fixed by the Court.

(9) The costs referred to in paragraph (8) are to be paid by the plaintiff:

(a) within 28 days of the quantum of costs being

agreed or fixed by the Court; and

(b) on the basis that the ultimate liability for those

costs be reserved.

(10) The costs of the application and of the appearance

on 19 September 2012 are otherwise reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297

Most Recent Citation

Salmon and Ors & Salmon [2020] FamCAFC 134

Cases citing this decision · 7 of 7 shown

The Estate of Genevieve Bryan
[2021] NSWSC 567 Para 60

…In Conias Hotels Pty Ltd v Murphy [2012] QSC 297, at [14]-[16], Applegarth J noted that situations in which a legitimate sense of grievance may arise include where:…
BOLLEN & BOLLEN
[2020] FamCA 605 Para 6

…om an expert witness other than the single expert, the Full Court referred to the decision of Applegarth J in Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297 (“Conias”). Although Conias also dealt with the exercise of the discretion to permit a party to adduce evidence from an expert other than the jointly a…
Salmon and Ors & Salmon
[2020] FamCAFC 134 Para 1

…cases, there is a range of opinion within which the actual value of real property, a business or other thing can be legitimately arrived at. [5] [2012] QSC 297 at [5].…
Menegazzo v PricewaterhouseCoopers
[2019] QSC 296 Para 21

…easons are therefore helpful here. I will refer to his Honour’s judgment after considering some of the decisions to which his Honour referred. [23] [2012] QSC 297. [24] Paragraph [4].…
Fricke & Anor v WH Frier Building Contractors Pty Ltd & Ors
[2019] QSC 6 Para 2

…Brereton J said in Tomko at Paragraph 9 that courts “should be relatively ready to grant leave to adduce evidence from a separate expert.” [8] [2012] QSC 297.…
Carpentaria Gold Pty Ltd v Hood
[2015] QLC 36 Para 14

…pplication had been made to appoint an expert in addition to the expert who had previously been appointed. [37] Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297.…
Dovgan & Dovgan
[2021] FamCA 306

…2005) FLC 93-220 Commissioner of Taxation v Tomaras (2018) 265 CLR 434 Commonwealth v Miledge (1953) 90 CLR 157 Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297 Conrad & Conrad and Anor [2019] FamCA 106 CPT Custodian Pty Ltd v Commissioner of State Revenue (Vic) (2005) 224 CLR 98 Daniels v Walker [2001] 1 WLR…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

D v S
[2009] QSC 446 Para 1

…The fact that differences of opinion are not enough is established in authorities which include D v S [2009] QSC 446. And, as has been earlier said by Biscoe J in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282 at [33], "Large differences of opinion between valuation experts are,…
Wu v Statewide Developments Pty Ltd
[2009] NSWSC 587 Para 1

…These principles have been considered by Brereton J in Tomko v Tomko [2007] NSWSC 1486 at [9] and Wu v Statewide Developments [2009] NSWSC 587 at [17]. I respect his Honour's approach although, at first sight, it would seem to be more liberal than I would adopt and differs from the approach taken by Wilson J in D v…
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority
[2008] NSWLEC 282 Para 1

…ties which include D v S [2009] QSC 446. And, as has been earlier said by Biscoe J in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] NSWLEC 282 at [33], "Large differences of opinion between valuation experts are, unfortunately, a common occurrence in this court. The solution does not lie in…
Tomko v Tomko
[2007] NSWSC 1486 Para 1

…These principles have been considered by Brereton J in Tomko v Tomko [2007] NSWSC 1486 at [9] and Wu v Statewide Developments [2009] NSWSC 587 at [17]. I respect his Honour's approach although, at first sight, it would seem to be more liberal than I would adopt and differs from the approach taken by Wilson J in D v…
Owners of Strata Plan 58577 v Banmor Developments Finance Pty Limited
[2006] NSWCA 325 Para 1

…the plaintiff from the previous hearing on 13 August 2012. As Beazley JA observed in Owners of Strata Plan 58577 v Banmor Development Finance Pty Ltd [2006] NSWCA 325 at [2], there needs to be a balance. On the one hand, one has to consider principles of case management and the need for expeditious resolution of di…
[2000] 1 WLR 1382
[2000] 1 WLR 1382 Para 1

…I respectfully adopt what was said by Lord Woolf MR in Daniels v Walker [2000] 1 WLR 1382 at 1387, and also what was said by Neuberger J, as his Lordship then was, in Cosgrove v Pattison [2000] All ER (D) 2007. Lord Neuberger's discussion of the issues is, with respect, illuminating and compelling, and I take it int…
1 WLR 1382
1 WLR 1382

…1 WLR 1382 at 1387, and also what was said by Neuberger J, as his Lordship then was, in Cosgrove v Pattison [2000] All ER (D) 2007. Lord Neuberger's discussion of the issues is, with respect, illuminating and compelling, and I take it into account in circumstances in which the rules have as one of their objec…

Legislation cited in this decision · 1

Uniform Civil Procedure Rules 1999 (Qld)
423, 429 3 mentions

CITATION:	Conias Hotels Pty Ltd v Murphy & Anor [2012] QSC 297
PARTIES:	CONIAS HOTELS PTY LTD ACN 120 319 283 AS TRUSTEE FOR THE CONIAS HOTEL TRUST NO. 2 (plaintiff) v SHAUGHN MURPHY (first defendant) and REWUKE PTY LTD ACN 002 628 499 (second defendant)
FILE NO:	3771 of 2009
DIVISION:	Trial Division
PROCEEDING:	By way of application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED EX TEMPORE ON:	19 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	19 September 2012
JUDGE:	Applegarth J
ORDERS:	(1) Mr Gavin Duthie of G Duthie Consulting be appointed as a further expert valuer in the proceeding to prepare a report in relation to the value of the Transcontinental Hotel as at 12 May 2008. (2) The plaintiff serve a report from Mr Duthie valuing the Transcontinental Hotel as at 12 May 2008 by or on 19 October 2012 (the Duthie Report). (3) The parties provide a copy of the Duthie Report to Ian Skelsey by or on 22 October 2012. (4) Mr Skelsey prepare a report (if any) in response to the Duthie Report by 12 November 2012. (5) Messrs Duthie and Skelsey are directed to confer and produce a joint report by 4.00pm on 30 November 2012 in respect of: (a) those valuation issues, facts and matters upon which they agree; (b) those valuation issues, facts and matters not agreed, with short reasons as to why agreement has not been able to be reached; and (c) those further or other enquiries, instructions, documents or evidence which would assist in the resolution of the issues on which the experts disagree. (6) The joint experts’ conference be otherwise convened and held in accordance with the requirements of the Joint Conference Guidelines set out in Attachment 2 to Supervised Case List, Practice Direction No. 11 of 2012. (7) The joint experts’ report be produced, signed and provided to the parties’ legal representatives and a copy filed in Court by the plaintiff by 4.00pm on 3 December 2012. (8) Subject to Order 9(b), the plaintiff pay: (a) the defendants’ reasonable costs of considering and responding to the Duthie Report; (b) the costs of any further report from Mr Skelsey prepared pursuant to paragraph (4); and (c) the costs of the joint experts’ conference and joint experts’ report referred to in paragraph (5) above, as agreed or, if agreement is not reached, to be fixed by the Court. (9) The costs referred to in paragraph (8) are to be paid by the plaintiff: (a) within 28 days of the quantum of costs being agreed or fixed by the Court; and (b) on the basis that the ultimate liability for those costs be reserved. (10) The costs of the application and of the appearance on 19 September 2012 are otherwise reserved.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – EVIDENCE – EXPERT EVIDENCE – where expert valuer has been appointed – where significant difference of opinion between valuers…