Dunne and Dunne

[2008] FamCA 840

FAMILY COURT OF AUSTRALIA

DUNNE & DUNNE [2008] FamCA 840

FAMILY LAW – PROPERTY – Value of property – Expert evidence – Application to adduce further valuation evidence - leave refused

APPLICANT: Ms Dunne

RESPONDENT: Mr Dunne

FILE NUMBER: MLF 2056 of 2006

DATE DELIVERED: 7 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 7 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.G. Hammet

SOLICITOR FOR THE APPLICANT: Sam Holt

COUNSEL FOR THE RESPONDENT: Mr B.R. Geddes QC, with Ms B.M. Hooper

SOLICITOR FOR THE RESPONDENT: Vicki Sweet Family Law

Orders

1. That the wife's application filed 6 June 2008 be and is hereby otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 2056 of 2006

MS DUNNE

Applicant

And

MR DUNNE

Respondent

REASONS FOR JUDGMENT

1. In very short compass, I will state my reasons.  In short, I consider that the valuer created an opportunity for information to be passed to him that was not availed of.  Had it been availed of, many of these complaints could not now be made.  Secondly, the valuer called by the wife as a proposed adversarial expert does not in fact identify an outcome applying valuation methodology that would be different from the outcome produced by Mr D and the submission is simply that he may produce a different outcome if he has an opportunity to investigate the marketplace further.

2. Whilst time lines have been tight in the recent past in this case, I do not accept that it would be appropriate to adjourn this case in all the circumstances on the basis of a possible change to the valuation if further sales were uncovered. 

3. The valuer intended to be relied on by the wife simply says that because of the difficulties and uncertainties that exist, a sale is really the only way of ascertaining the value.  I am of the view that that proposition can be demonstrated by evidence and that will come out in cross‑examination of the witnesses who are already before me and is a submission that can rationally be made at the end of the day; that is, that really things are so uncertain in relation to value that a sale is the only fair outcome. 

4. But further, I also take into account, in the exercise of my discretion not to grant the application, that some of the land in dispute is sought by the wife in specie and although that is not agreed to by the husband, a resolution of the valuation issue, should I decide that she is entitled to more than she already has, is partially available by in fact giving her that land at the value that it has been given by Mr D, meaning of course that that would be at a lesser value than she considers it is worth, but in terms of the pool and percentage issues and what she was receiving, she would in fact be receiving something that was based on Mr D's valuation.

5. In all the circumstances, I do not propose to call on Mr Geddes to respond.  I propose to have the matter proceed to trial tomorrow.  However, I stress that I do not regard the time as running for a review of that decision until I deliver my final judgment; that is to say, I will give an expanded version of these short reasons as part of my final judgment and I consider that the time for appealing would run from the delivery of my final reasons in this matter, not from today.  That is my view, because I have only given very short reasons.  I do intend to expand on them, but that is all I intend to say for the moment. 

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: …

Date:  26 August 2008