Darby & Fullarton - [2022] FedCFamC1F 59

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Darby & Fullarton [2022] FedCFamC1F 59

File number(s): SYC4444 of 2021

Judgment of: BAUMANN J

Date of judgment: 14 February 2022

Catchwords: FAMILY LAW – REVIEW – Review of Registrar’s decision to appoint single expert valuers

Division: Division 1 First Instance

Number of paragraphs: 19

Date of hearing: 9 February 2022

Place: Brisbane

Solicitor for the Applicant: Walsh & Blair

Counsel for the Respondent: Mr P Fowler

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

SYC4444 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DARBY

Applicant

AND:
MS FULLARTON

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

14 February 2022

THE COURT ORDERS UNTIL FURTHER ORDER:
1.That pursuant to Order 4.1 of Orders dated 19 July 2021, Mr E of C Valuers be appointed as the single expert valuer to value the parcels of real estate identified at Schedule 2 of the Orders dated 19 July 2021.
2.That pursuant to Order 4.2 of Orders dated 19 July 2021, Mr B of D Valuers be appointed as the single expert valuer to value the plant and equipment owned by the Trusts and Entities of the parties identified at Schedule 1 of the Orders dated 19 July 2021.
3.That the parties’ costs of the Application for Review filed 28 January 2022 be reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fullarton & Darby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:

After commencement of substantive proceedings by Ms Fullarton (“Ms Fullarton”) on 16 June 2021, on 19 July 2021 a Registrar made interim consent orders which inter alia provided for Ms Fullarton to receive some payments totalling $50,000; for some restraints as to use of income in respect of the F Company partnership; and relevantly in respect of the Review Application before me, the following orders were made:
Single Expert Valuations
4.In the absence of agreement as to their value within 21 days from the date of the making of this order, pursuant to Rule 15.44 of the Rules a Single Expert be appointed to provide a report assessing the value of:
4.1.the interest of the Applicant and the Respondent (either individually or through the various entities and trusts they control) in…

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 Darby & Fullarton

Details

AGLC: Darby & Fullarton [2022] FedCFamC1F 59
Case: [2022] FedCFamC1F 59
Decision Date

CaseChat Overview and Summary

This case involved a review of the Registrar's decision to appoint single expert valuers in the proceedings between Mr. Darby and Ms. Fullarton. The parties were required to reach an agreement on the value of certain assets, including real estate and plant and equipment, within a specified time frame. If no agreement was reached, a single expert was to be appointed to assess the value of these assets. The applicant, Mr. Darby, filed an Application for Review seeking to overturn the Registrar's decision to appoint specific valuers for the real property, plant and equipment, and business interests. The legal issues before the court were whether the Registrar's decision to appoint specific valuers was appropriate and whether the applicant should be granted leave to amend the Application for Review to include the business valuation order.

The court found that both the applicant and respondent had nominated suitably qualified experts for the real property valuations, but the applicant's nominated expert had a lower fee estimate. Consequently, the court appointed the applicant's nominated expert for the real property valuations. For the plant and equipment valuations, the court determined that the respondent's nominated expert was more qualified and suitable for the task, despite the higher fee, and appointed them as the single expert. Regarding the business valuation, the court found that the applicant had agreed to the appointment of a single expert in the consent orders and should select one from the list of experts provided by the Registrar.

The court denied the applicant leave to amend the Application for Review to include the business valuation order, as it was not the order initially sought and the respondent had no warning of this alternate position. The court also proposed to bring the proceedings to the attention of the Case Management Judge for potential inclusion in the Court's Complex Financial Proceedings list for case management in accordance with the relevant protocols.

Orders