D v S - [2009] QSC 446

SUPREME COURT OF QUEENSLAND

CITATION:

D v S [2009] QSC 446

PARTIES:

D
(applicant)
v
S
(respondent)

FILE NO/S:

SC No 2550 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

9 December 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

8 December 2009

JUDGE:

Margaret Wilson J

ORDER:

Application dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – EVIDENCE – EXPERT EVIDENCE – where proceeding is between former de facto partners pursuant to Part 19 of the Property Law Act 1974 (Qld) – where applicant seeks various interlocutory orders – where interlocutory dispute has been resolved except whether applicant should have leave to rely on an affidavit of expert – where order by consent for single expert – where further order by consent for joint appointment of expert to update valuations –where applicant relies on r 429N(3)(a)(i) of the Uniform Civil Procedure Rules 1999 (Qld) – whether Court should allow party to call further expert

Property Law Act 1974 (Qld), Part 19

Uniform Civil Procedure Rules 1999 (Qld), r 429N(1), r 429N (3)(a)(i), r 429H(6)

COUNSEL:

R Hamwood for the applicant.

M Bland for the respondent.

SOLICITORS:

Edwards Lawyers for the applicant.
Harrington Family Lawyers for the respondent.

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MARGARET WILSON J

No 2550 of 2008

D	Applicant
and
S	Respondent

BRISBANE

..DATE 09/12/2009

JUDGMENT

HER HONOUR: This is a proceeding between former de facto partners pursuant to part 19 of the Property Law Act.

By application filed on 13 November 2009 the applicant Ms D seeks various interlocutory orders. The interlocutory dispute has been resolved in all respects but one - whether she should have leave to rely on an affidavit of Scott Iveson, valuer, filed 13 November 2009.

Mr Iveson valued two properties:

6-8 Kyabra Street, Fortitude Valley; and
280 Wights Mountain Road, Wights Mountain.

Those valuations were performed at the request of the applicant.

The parties had previously consented to orders:

appointing Barry Stanaway of John Watt and Associates as the single expert to value the real property (PD McMurdo J 4 April 2008); and
that they jointly instruct Mr Stanaway to provide updated valuations (White J 19 February 2009).

Rule 429N of the Uniform Civil Procedure Rules provides that where the Court appoints an expert in relation to an issue in a proceeding, the expert is to be the only expert to give evidence on the issue unless the Court otherwise orders.
Sub-rule (3) provides -

"However, the Court may, on its own initiative or on application by a party, appoint another expert (the other expert) to prepare a report in relation to the issue if-
(a) after receiving a report from the expert originally appointed (the first expert), the Court is satisfied-

(i) there is expert opinion, different from the first expert's opinion, that is or may be material to deciding the issue; or
(ii) the other expert knows of matters, not known by the first expert,…

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 D v S

Details

AGLC: D v S [2009] QSC 446
Case: [2009] QSC 446
Decision Date: 9 December 2009

CaseChat Overview and Summary

The proceeding involves D and S, former de facto partners, who are engaged in a dispute under Part 19 of the Property Law Act 1974 (Qld). D, the applicant, sought various interlocutory orders, including leave to rely on an affidavit of an expert witness. The interlocutory dispute had largely been resolved, except for the issue of whether D should be allowed to call a further expert witness. The parties had agreed to a single expert and then to a joint appointment of an expert to update valuations. D sought leave to rely on the expert witness under rule 429N(3)(a)(i) of the Uniform Civil Procedure Rules 1999 (Qld).

The primary legal issue was whether the Court should allow D to call a further expert witness despite the existence of the joint expert's report. This involved an interpretation of the relevant rule and an assessment of the circumstances that warranted the appointment of an additional expert. The Court had to consider whether there were exceptional circumstances justifying the departure from the usual procedure of relying on a single or jointly appointed expert.

The Court dismissed the application, finding that there were no exceptional circumstances that warranted the appointment of a further expert. The joint expert's report provided sufficient information for the Court to make informed decisions on the outstanding issues. The Court also noted that the parties had already engaged in extensive expert exchanges, which further undermined the need for an additional expert. Consequently, the application was dismissed, and no further expert evidence was permitted.

No further orders were made beyond the dismissal of the application.

Orders

Orders of the court

Application dismissed

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.

CITATION:	D v S [2009] QSC 446
PARTIES:	D (applicant) v S (respondent)
FILE NO/S:	SC No 2550 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	9 December 2009
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	8 December 2009
JUDGE:	Margaret Wilson J
ORDER:	Application dismissed
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – EVIDENCE – EXPERT EVIDENCE – where proceeding is between former de facto partners pursuant to Part 19 of the Property Law Act 1974 (Qld) – where applicant seeks various interlocutory orders – where interlocutory dispute has been resolved except whether applicant should have leave to rely on an affidavit of expert – where order by consent for single expert – where further order by consent for joint appointment of expert to update valuations –where applicant relies on r 429N(3)(a)(i) of the Uniform Civil Procedure Rules 1999 (Qld) – whether Court should allow party to call further expert Property Law Act 1974 (Qld), Part 19 Uniform Civil Procedure Rules 1999 (Qld), r 429N(1), r 429N (3)(a)(i), r 429H(6)
COUNSEL:	R Hamwood for the applicant. M Bland for the respondent.
SOLICITORS:	Edwards Lawyers for the applicant. Harrington Family Lawyers for the respondent.