Cunningham and Cunningham (No 2)

[2018] FamCA 1164

FAMILY COURT OF AUSTRALIA

CUNNINGHAM & CUNNINGHAM (NO. 2) [2018] FamCA 1164

FAMILY LAW – PROPERTY – Leave to adduce evidence – Where the husband made an application for leave to adduce into evidence in his case a valuation of the parties’ former matrimonial home after the end of a property (and parenting) trial – Where there is already a valuation of that former matrimonial home in evidence – Where the application is opposed by the wife – Where the report was only provided the mother and her solicitors recently – Where it is not just and equitable outcome for the husband to be permitted to adduce this latest valuation report.

Family Law Rules 2004 (Cth)

APPLICANT: Mr Cunningham

RESPONDENT: Ms Cunningham

FILE NUMBER: BRC 10161 of 2015

DATE DELIVERED: 6 February 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 5 February 2018

REPRESENTATION

THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Stewart Family Law

Orders

1. The father’s Application in a Case filed by leave on 5 February 2018 for an updated valuation to be admitted into evidence, is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cunningham & Cunningham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10161 of 2015

Mr Cunningham

Applicant

And

Ms Cunningham

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. At the end of 17 days of evidence in this property settlement and Magellan list parenting orders trial, the husband made an Application in a Case for leave to adduce into evidence in his case a valuation of the parties’ former matrimonial home.

2. There is already a valuation of that former matrimonial home in evidence. It is a valuation of the property as at 3 November 2016 done by Mr BB of CC Valuers. It was provided on the joint instructions of EE Lawyers who were then acting as solicitors for the husband and Stewart Family Law, the solicitors for the wife. It can properly be described as a single expert witness’s report.

3. Mr BB valued the property as at that date at $1,075,000. Included in the express conditions and limitations contained at the end of his report is the following statement:

   This valuation is current as at the date of valuation only. The value assessed herein may change significantly and unexpectedly over a relatively short period (including as a result of general market movements or factors specific to the particular property). We do not accept liability for losses arising from such subsequent changes in value. Without limiting the generality of the above comment, we do not assume any responsibility or accept any liability where this valuation is relied upon after the expiration of 90 days from the date of the valuation, or such earlier date if you become aware of any factors that have any effect on the valuation.

4. The husband put much emphasis on that condition in his oral submissions. I shall say a little more about that further on.

5. Although in making his application the husband did not express it as such, and indeed he conceded that he had not read the relevant Family Law Rules 2004 (Cth), this is an application that is to be made pursuant to r 15.49 of those Rules.

6. That rule provides relevantly that:

   If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.

7. Pursuant to r 15.49(2) the Court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

   (a)There is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue; or

   (b)Another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

   (c)There is another special reason for adducing evidence from another expert witness.

8. The husband’s application is to adduce into evidence the valuation report of another expert, albeit one working for the same firm, CC Valuers, namely Mr EE, as to the value of the former matrimonial home on 25 January 2018.

9. His application to do so is opposed by the wife.

10. Interestingly, this latest report that the husband seeks to adduce into evidence, says on its face that it was prepared on the joint instructions of Stewart Family Law (who still represent the wife) and the husband who is now self-represented, his Queen’s Counsel and solicitors having withdrawn from the matter at the conclusion of the husband’s cross-examination early on day five of the trial in January last year when it had been first set down to take place over 10 days.

11. Counsel for the wife informed the Court that this latest report was actually not prepared on the joint instructions of his instructing solicitors and the husband. The husband conceded that was true but could not explain to the Court why the expert had asserted in his report that it was prepared on the joint instructions of both parties.

12. There is no dispute that although the wife had permitted Mr EE access to the property to inspect it, she did not jointly commission the report, she did not pay anything for it and she did not agree to it being used in evidence. Accordingly, it is an adversarial report prepared by a different valuer who works for the same firm that the single expert valuer who provided the report that is in evidence worked for.

13. The husband conceded that the first subparagraph of r 15.49 does not apply in the circumstances. However he then argued that subparagraph (b) does apply in that Mr EE knows of matters that were not known to Mr BB that are necessary to determine the issue. He said effectively that those matters were more recent sales in the 2017 year since Mr BB’s report in late 2016.  The husband also effectively submitted that sub-paragraph (c) applies and that the “special reason” for adducing the evidence of another expert is indeed the movement in the market in the period of slightly longer than a year between the two reports evident in the comparative sales evidence utilised by the two separate experts and the difference between the valuations both ascribe at the relevant dates in their reports.

14. The peculiar circumstances of this trial, namely its adjournment part-heard after only four days of a scheduled ten day hearing; its adjournment to July last year for an expected conclusion; and its further adjournment part-heard until the beginning of last week; are indeed, in my judgment, relevant factors to consider. At first blush, the objective observer might consider it fair to assert that a single expert valuation obtained in November 2016 might be outdated and ought to be updated if the current market value of the real property is a matter to be determined in arriving at just and equitable property settlement orders. However, sometimes things are not as simple as they appear.

15. At the re-commencement of the part-heard trial in July last year, the husband, by then without legal representation, made it known to the Court that he was not happy or satisfied with the valuation opinion of the single expert valuer. Indeed I am satisfied that he would have been aware of the condition included in the first valuation report that I have already read out earlier in this decision about the currency of the valuation opinion provided in that report.  The husband made it clear that he wanted to ask questions of Mr BB. He told the Court from the bar table that Mr BB had, according to his enquiry, apparently left the employ of CC Valuers and that CC Valuers could not tell the husband where he could then be located.

16. The matter was raised a number of times by the husband during that second tranche of the trial. Indeed, he would ask the court for “guidance” on this and other issues at various times. In accordance with the principles that provide for litigants who are without legal representation to be given some assistance in process and procedure, the Court told the husband that the proper way for him to deal with the issue was by way of filing an Application in a Case supported by the appropriate evidence.

17. The Court was satisfied that the husband knew exactly what was meant by that as the husband had indeed filed an Application in a Case and a supporting affidavit in respect of another issue in the period between the first part of the part-heart trial and that second part in July last year.

18. Indeed, the proper Application in a Case in respect of this issue would have been for an order that a new single expert valuation be obtained by both parties supported by proper evidence (from an expert) that the market had moved in the period since Mr BB’s report had been provided and further sworn evidence as to all the efforts that had been made by the husband and others perhaps, to locate Mr BB without success. That Application in a Case should have been listed in advance of this third part of the trial for the wife’s position on the matter to be ascertained, made clear to the Court and a determination made.

19. That is indeed exactly what was anticipated might happen in the light of the “guidance” the Court had given the husband during and at the end of the second part of the trial.

20. In his oral submissions, when asked about his explanation for why this had not happened and this Application in a Case had been filed at the last moment as it was, the husband asserted that he thought he could not file anything further as I had made a direction at the end of the second part of the trial that no further affidavits be filed.  However, that direction specifically related to evidence in chief in the trial itself and, in any event, it included the proviso “without the leave of the Court”, meaning that the husband could have sought the leave of the Court to file the Application in a Case and supporting affidavit that he was told he would have to file in respect of this valuation issue, in the event of any doubt about whether or not he could do so.

21. When this third part of the trial was re-commenced last Monday, there was some mention again of this issue, this time by counsel for the wife. He raised it as a matter that might need to be dealt with. I observed at the time, effectively, that the husband had done nothing nor said anything about it and that I would not entertain any further discussion about the matter until he did.

22. For seven whole days, the husband said and did nothing further about this issue. He did not inform the Court that he intended to bring an Application in a Case to adduce a fresh valuation. Apparently, he tried to file an Application in a Case late on Sunday afternoon, 4 February. His efforts to file via the electronic portal were unsuccessful. He did provide a copy of his Application and supporting affidavit to the other parties electronically that same afternoon.  That is to be treated however as having been provided to them first thing yesterday morning, Monday, 5 February. Yet, he did not stand up and mention this at the start of evidence yesterday morning. He waited until the conclusion of all of the evidence in the case late yesterday afternoon.

23. There is a paucity of relevant evidence in the husband’s supporting affidavit. It is only a few paragraphs in length and says nothing of the whereabouts of Mr BB, and nothing of any reasonable attempts by the husband or anyone else to locate Mr BB. It says nothing as to the basis upon which the husband himself considered that it was necessary to seek a new valuation from a different valuer and, importantly, it says nothing at all of any reasonable steps that the husband took to engage and obtain the agreement of the wife, nor does it say anything about any reasonable steps that he took to act on any such agreement or otherwise.

24. From the bar table, the husband told the Court he only obtained this latest valuation that he seeks to adduce into evidence last week during the course of this hearing. Accordingly, it is reasonably assumed I consider, that the wife and her legal representatives have had it for no longer than that either.

25. The wife would normally be entitled to give consideration to her position after receipt of such a document, to take considered advice and to decide in the circumstances whether she would obtain her own updated valuation evidence to determine whether she agreed with this new valuation or not. She would be entitled to have her counsel properly consider such a valuation and to prepare and conduct a careful, considered cross-examination of this adversarial valuer if the valuation report was to be allowed into evidence, if that was what was considered appropriate in the circumstances.

26. The time provided to the wife and her legal representatives, with respect, has not been long enough for that to have occurred. Indeed, by leaving it to the end of the evidence when the case is concluded, just before the submissions commence, the husband restricts this capacity. Of course, he might say that the wife’s counsel could still cross-examine this latest valuer if he wished to, but the trial is due to finish today and the submissions are expected to take all day. It will have taken eighteen days of Court time, that is, after the Court was told in the first instance that it would take ten days of court time. There are a multitude of other interests, not the least of which are the interests of the other litigants waiting in a queue for their matters to be heard by this court, that have to be considered in determining whether a decision should be taken that would increase the length of this trial thus reducing the amount of time available for judgment writing and for the hearing and determining of those hundreds of other cases of significance and complexity in this Court’s list.

27. After considering all of these matters I have determined that it would not be a just and equitable outcome, in all of these circumstances, for the discretion to permit the husband to adduce this latest valuation report to be exercised in favour of doing so. For all these reasons, I refused the husband the leave he sought late yesterday afternoon.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 February 2018.

Associate: 

Date:  26 November 2019