DUGUAY & DUGUAY

[2018] FCCA 2993

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUGUAY & DUGUAY [2018] FCCA 2993

Catchwords:
FAMILY LAW – Interlocutory – argument about property valuations – valuation rejected.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS DUGUAY

Respondent: MR DUGUAY

File Number: SYC 3440 of 2015

Judgment of: Judge Henderson

Hearing date: 20 July 2018

Date of Last Submission: 20 July 2018

Delivered at: Sydney

Delivered on: 20 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Levy

Solicitors for the Applicant: Abrahams Turner Whelan Family Lawyers

Counsel for the Respondent: In person

ORDERS

1. The tender of the valuation of Mr C dated 28 May 2018 is rejected.

IT IS NOTED that publication of this judgment under the pseudonym Duguay & Duguay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3440 of 2015

MS DUGUAY

Applicant

And

MR DUGUAY

Respondent

REASONS FOR JUDGMENT

1. An application has been made that I reject the joint valuation obtained from by Mr C dated 28 May 2018 because the valuation provided is now inherently unreliable due to the following, which is set out in wife’s exhibit 1, being a series of correspondence between parties’ lawyers and parties to and from Mr C.

2. The most salient letter is a letter dated 6 July 2018 from Mr E to Mr C, and sent to the husband, asking him to answer questions in relation to comments in his valuation, comments he took into account in his valuation, of the possibility, if it be that word, that there was some potential for the parties’ property to have an additional floor placed upon it, thereby enhancing its value, one might imagine.

3. It is clear from exhibit 1 that this was never part of any agreed valuation issue. It had never been raised before. It certainly was not part of what Mr C was asked to do in 2015 when both parties were represented, nor when Mr E reinstituted the agreed instructions. How this came about, however, becomes clear from Mr C’s letter in response to Mr E’s letter dated 6 July 2018. This letter went to the husband, as all the letters have gone to the now unrepresented husband.

4. Paragraph 1(a) in reply page 2:

   I was informed by Mr Duguay via email on 21 May of the potential for extension into the common property roof space. This was subsequent to my instructions to value the property. Given the nature of the property, a top floor apartment in an older style block of floor, I must say this potential would have been obvious even had I not been informed once I perused the strata plan, and carried out my inspection.

5. He then goes to say in paragraph (d):

   The potential to do this – that is put a top floor on the property – is obvious to any experienced valuer given local knowledge and familiarity with this style of property. Mr Duguay provided me with a contact for Mr F of unit 4 who he advised was in some position of authority with the strata. After several attempts I managed to speak to Mr F. He merely confirmed what I had already ascertained to be the case; by examination of the registered strata plan and inquiry of Area G Council with regard to DA approvals, which is the position I relate in my report.

   That is, it was considered as a positive that the subject has a top floor position allowing some potential for extension into the common property roof space, as has been achieved on similar style units in the locality subject to formal owners corporation permission and, of course, DA approval.

6. It is clear from the report prepared by Mr C and his answers to the correspondence that this potential formed part of his valuation. He values the property at 1.75 million. The wife, being quite alarmed at this, obtained the services of a Mr H, a registered certified valuer. His report gives a value of the property at 1.57 million.

7. It is clear to me that I could not possibly rely upon Mr C’s report. It has been clearly sullied by the husband seeking to provide Mr C with what I would regard as, at best, hearsay information not supported by any evidence such as DA approval, letters to or from council, letters to or from body corporates, any document in writing about this potential. Mr C, despite his years of experience, included this hearsay evidence of some idea, thought bubble, wouldn’t it be nice if we could do it into his valuation.

8. Thus this valuation could not possibly be relied upon in a court of law as fulfilling the test for expert valuation as part of the evidence that was relied upon by the expert to form their opinion clearly is not evident and may be not even in existence at all. Therefore, I reject any tender of Mr C’s report to the Court.

9. That, therefore, leaves me with the next position, which is Mr H’s report. I have a report prepared by a qualified valuer. I accept not a joint valuation, as was Mr C’s report, and not a valuation that the husband had direct input into other than the instructions for this report to be prepared were the same as those agreed to by the wife and husband’s lawyer in 2015 when he was represented.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 22 October 2018