Fort & Fort (No 3)
[2025] FedCFamC1F 213
•4 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fort & Fort (No 3) [2025] FedCFamC1F 213
File number(s): ADC 2560 of 2023 Judgment of: KARI J Date of judgment: 4 April 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks to rely on a valuation report prepared by a shadow expert – Where the wife asserts that the expert who prepared previous valuation reports was not the single expert pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the husband asserts that the expert who prepared the previous valuation reports was the single expert – Where the Court finds the expert who prepared the previous valuation reports is the singe expert – Where the single expert is appointed to prepare the updated valuation report – Where the wife’s application to rely on the evidence of an another expert is declined Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1, rr 7.02, 7.03, 7.04, 7.08, 7.10, 7.26 Cases cited: Fort & Fort [2025] FedCFamC1F 126
Fort & Fort (No 2) [2025] FedCFamC1F 175
Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 20 March 2025 Place: Adelaide Counsel for the Applicant: Mr Robertson-Clark SC Solicitor for the Applicant: Norman Waterhouse Lawyers Counsel for the Respondent: Mr Williams SC, assisted by Mr Dillon Solicitor for the Respondent: Precision Legal ORDERS
ADC 2560 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FORT
Applicant
AND: MR FORT
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
1.In relation to the property situate at BB Street, City R, in the State of South Australia:
(a)Forthwith and pursuant to r 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the parties are to jointly instruct AA Valuers as the single expert to prepare an updated valuation;
(b)The costs of AA Valuers are to be paid in equal amounts by each the husband and the wife;
(c)Forthwith upon receipt of the updated valuation, the wife shall file and serve an affidavit annexing a copy of the same.
2.In relation to the business known as the CC Pty Ltd:
(a)Forthwith and pursuant to r 7.04 the Rules the parties are to jointly instruct Mr DD as the single expert to prepare an updated valuation;
(b)The costs of Mr DD are to be paid in equal amounts by each the husband and the wife;
(c)Forthwith upon receipt of the updated valuation, the wife shall file and serve an affidavit annexing a copy of the same.
3.The Application in a Proceeding filed by the wife on 29 January 2025, together with the Response filed by the husband on 28 February 2025 be dismissed, save as to the question of costs.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Fort & Fort has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These reasons relate to matters of a procedural nature regarding the financial proceedings before the Court; principally in relation to expert valuations of property.
These reasons arise following the third contested hearing in these proceedings in the space of less than a month.
When these reasons are read collectively with the two separate earlier reasons published in the parenting proceedings (Fort & Fort [2025] FedCFamC1F 126 and Fort & Fort (No 2) [2025] FedCFamC1F 175), it appears that these parties have developed a propensity for interlocutory litigation (particularly regarding procedural arrangements), without the ability to bring proportionality and perspective to bear. That this is the case in circumstances where they are each represented by experienced family law practitioners, junior and senior counsel is mystifying; particularly as these parties have in the past been able to amicably resolve a range of issues. This recent propensity for litigation is a drain on the Court’s time, but significantly it is a drain on the parties’ financial resources as their costs continue to grow exponentially.
Alongside the suite of orders that are to be made pursuant to these reasons, the Court shall also separately make trial directions to prepare the proceeding for a final hearing. It is hoped that progressing the proceedings to a final hearing will quell the interlocutory skirmishes between the parties; particularly those of a procedural nature.
BACKGROUND
It is not intended to set out a detailed history of the litigation. These reasons however should be read in conjunction with the earlier reasons published in the recent tranche of interlocutory disputes.
The relevant background pertaining to the financial proceedings is as follows:
(a)The parties met in the United Kingdom and started dating in approximately October 2008.
(b)The parties began cohabiting in the United Kingdom in 2010, married in 2012 in the United Kingdon, and separated under the same roof in Australia in May 2021, with their physical separation taking place in March 2022.
(c)At the time of cohabitation in the United Kingdom:
(i)The husband was employed as a finance professional at EE Company and earning approximately £250,000 per annum.
(ii)The wife was employed as a finance professional with FF Company and earning approximately £65,000 per annum.
(d)The husband asserts that at the commencement of cohabitation he owned four investment properties in Australia (all of which were tenanted, with the rental income servicing the mortgage borrowings), Shares with EE Company valued at approximately $300,000, savings of approximately $50,000 and superannuation entitlements of approximately $50,000. In addition, he asserts that he purchased a villa in Country RR for approximately £250,000, paying a sum of £150,000 in cash and the balance provided by a mortgage.
(e)The wife asserts that at the commencement of cohabitation she had assets including a property located in Town GG in the UK (which had a mortgage), a Motor Vehicle 1, savings of approximately $38,000 and superannuation entitlements of approximately $28,500.
(f)In January 2011:
(i)The parties purchased a property together in Suburb JJ in the United Kingdom; and
(ii)The wife sold the property that she owned in Town GG.
(g)The Suburb JJ property was sold in 2013, with the parties using the proceeds of sale to purchase a property in Town GG. This property was sold in approximately 2015 when the parties relocated to Australia.
(h)The parties relocated to Australia in 2015. At that time:
(i)The parties began living in one of the investment properties owned by the husband prior to the relationship, located in Town HH.
(ii)The husband and the wife worked in a business owned by the husband’s parents known as “KK Company” (“the Business”).
(i)In March 2015 the parties purchased the Business at a purchase price of $100,000. The purchase price, together with the costs of fitting out the store, stock and working capital was funded by the husband cashing in shares he held with EE Company.
(j)The parties significantly expanded the operations of the Business from two stores located in Town LL and Town MM, to five stores and an online presence. It is the husband’s case that the online arm of the Business is the main source of revenue, and that this arm of the Business has been his sole responsibility. In addition, the husband asserts that he handles “all aspects of the Business including overseeing the day-to-day operations […] and managing staff, sales and the online website.” He asserts that the wife “has attended to payroll and works”. The wife asserts that she was responsible for managing all aspects of the Business’ financial operations including payroll, managing accounts, bookkeeping, banking, preparing business forecasts and reporting as well as HR processes.
(k)The husband sold his pre-relationship investment properties in approximately 2015, netting approximately $2,090,000 which the husband asserts was applied to the purchase of the former matrimonial home in City R (“the City R property”). The wife asserts that the parties purchased the City R property using net proceeds from the sale of their property in Town GG as well as a loan from the bank and from the wife’s parents.
(l)In 2020 the husband sold the villa in Country RR and applied the net proceeds of sale of approximately £250,000 to fund significant renovations and improvements to the Stirling property.
THE INTERLOCUTORY DISPUTE
The parties are presently in dispute over the procedural arrangements for the valuation of both the Business and the City R property. The wife additionally asks the Court to make orders requiring the parties to participate in further mediation with a retired former judicial officer.
Prior to the commencement of the proceedings by the wife in June 2023, the parties, with the assistance of their lawyers, participated in a mediation with a retired former judicial officer. This mediation took place on 24 February 2022.
It is an agreed fact that preparatory to the mediation they agreed and instructed a forensic accountant, Mr DD to undertake a valuation of the Business and, additionally, the instruction of a single expert to value the City R property.
Of some importance to the financial proceedings is that the parties reached agreement at the mediation, and implemented an arrangement which saw the husband vacate the City R property where the parties had been living separately and apart under the same roof from the time of separation in May 2021. In accordance with the agreement reached, in March 2022 the husband moved out of the City R property and into rental accommodation in Suburb OO, and the wife and the children remained living in the City R property. These arrangements continue.
The parties are now in dispute as to:
(a)Whether Mr DD was instructed in accordance with Part 7.1 of the Rules as the single expert in the proceedings;
(b)Regardless of whether Mr DD was instructed as the single expert, it is the wife’s position that she now wishes to have her own adversarial expert, with the husband at liberty to instruct Mr DD, or indeed have his own expert;
(c)The timing of when any updated valuation of the City R property is to be completed; and
(d)Further mediation.
The specific orders sought by the wife in her Application in a Proceeding filed 29 January 2025 are:
[Mr NN]
1.That pursuant to rule 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) the wife be permitted to rely upon the valuation report of [Mr NN] dated 23 September 2024.
2.That the wife be solely responsible for the costs of [Mr NN].
Valuation of the [City R] property
3.That within seven (7) days of the date of this Order the parties do jointly instruct [AA Valuers] as a single expert pursuant to rule 7.04 of the Rules to undertake a valuation of the property situate at [BB Street, City R] with the costs of such valuation to be equally shared between the parties.
Mediation
4.That no later than Friday 1 August 2025 the parties attend a Mediation to be chaired by [Mr PP] with the costs of the mediator to be equally shared between them.
Other Matters
5.…
6.Such further or other orders as this Honourable Court deems just and equitable in the circumstances.
7.That the husband pay the wife's costs of and incidental to the within application.
The specific orders sought by the husband in his Response filed 28 February 2025 are:
1.The Wife's Application in a Proceeding filed on 29 January 2025 be dismissed.
2.That eight (8) weeks prior to the final defended hearing in this matter that the parties do jointly instruct [AA Valuers] as a single expert pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to undertake a valuation of the property situate at [BB Street, City R] with the costs of such valuation to be equally shared between the parties.
3.That on or before 1 September 2025 the parties do jointly instruct [Mr DD] as a single expert pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to undertake an updated valuation of the business, [CC Pty Ltd] with the costs of such valuation to be equally shared between the parties.
4.Such further or other orders as this Honourable Court deems fit.
5.That the Wife pay the Husband's costs of and incidental to the within application.
THE DOCUMENTS BEFORE THE COURT
The wife relied on the following documents:
(a)Her Application in a Proceeding filed 29 January 2025;
(b)Her Affidavit filed 29 January 2025; and
(c)Her Financial Statement filed 29 January 2025.
The husband relied on the following documents:
(a)His Response filed 28 February 2025;
(b)His affidavit filed 28 February 2025; and
(c)His Financial Statement filed 28 February 2025.
In addition, the Court had the benefit of the Costs Notices filed by each of the parties, both on 20 March 2025. What is understood from those respective documents is that:
(a)The wife has incurred total legal costs of $469,531, of which $397,887 has been paid.
(b)The wife’s estimated future legal costs are between $328,641 and $509,641 (the sum of items 5 to 13 in the costs notice).
(c)The husband has incurred total legal costs to date of $377,008 (the sum of items 7.1-7.3 and 7.5-7.6 in the costs notice).
(d)The husband’s estimates future legal costs are between $215,000 and $323,000 plus GST (the sum of items 7.4, 7.9 and 7.10 in the costs notice).
The valuation of the City R property
The City R property was valued on 2 August 2023, with a market value of $3,350,000.
The parties are in agreement that an updated valuation is to be prepared by a single expert valuer from AA Valuers; the identity of whom is apparently the same as the person who previously valued the property.
The parties however cannot agree the timing of the updated valuation:
(a)The wife wants an updated valuation to be carried out “now to avoid any delays to the husband and I being able to proceed to Mediation (as proposed by me)” (Wife’s affidavit filed 29 January 2025, paragraph 50); and
(b)The husband wants the updated valuation to be completed closer to trial and no more than eight weeks prior to any final hearing.
At the hearing on 14 March 2025 I indicated to the parties that the proceedings were likely to be listed for trial some time between September – December 2025. On that basis I invited the legal representatives to confer over the adjourned period about the timing of any updated valuation of the City R property because it did not strike me as a topic necessitating judicial determination. Counsel were additionally provided pro-forma trial directions and invited to confer in relation to the same.
Despite almost a week elapsing between the hearing on 14 March 2025 and the hearing of the present interlocutory dispute, it became apparent at the hearing that there had been little or no communication between the legal representatives to resolve the simple question of the timing of any updated valuation of the City R property, such that it was still an issue the Court was required to adjudicate.
That these parties appear content to incur significant costs litigating a simple procedural question such as this is entirely disproportionate and not one that either of the parties or their legal representatives should wear proudly.
I shall make orders requiring the City R property to be immediately valued by the agreed single expert.
In making that order I do not foreclose the possibility of a further update being obtained proximate to trial.
The valuation of the Business
The Business known as “KK Company” is operated through the following entities (with reference to the first report of Mr DD dated 21 September 2021, at paragraph 3 (annexure “MSF-1” to the wife’s affidavit filed 29 January 2025)):
(a)CC Pty Ltd in relation to which:
(i)The company was incorporated on 1 July 2014;
(ii)Each the husband and the wife are the Directors; and
(iii)There are 2 shares on issue, which are held by Fort & Associates Pty Ltd as trustee of the Fort & Associates Trust.
(b)Fort & Associates Trust in relation to which:
(i)The Trust was settled on 1 July 2014;
(ii)The Trustee of the Trust is Fort & Associates Pty Ltd;
(iii)The Appointors of the Trust are the husband and the wife; and
(iv)It is not clear who the beneficiaries of the trust are.
(c)Fort & Associates Pty Ltd in relation to which:
(i)The company was incorporated on 29 May 2018;
(ii)Each the husband and the wife are Directors;
(iii)There are 100 shares on issue, with 50 the parties each beneficially holding 50 shares.
The parties agree that they both continue to work in the business; the husband is the Chief Operating Officer and the wife is the Chief Financial Officer.
The husband asserts that he works approximately 60 hours each week in the business and the wife works between 15-20 hours each week.
Mr DD has prepared two formal reports on the instruction of the parties, together with answering questions put by the wife in writing. The dates of each of those reports are 21 September 2021, 26 September 2023 and 15 July 2024.
In addition, each of the parties have instructed their own separate “shadow” experts to critique the reports of Mr DD, and otherwise to separately forensically assist each of them. The wife has instructed Mr NN, and the husband has instructed Mr QQ.
There does not appear to be any dispute between the parties that each Mr DD, Mr NN and Mr QQ are anything other than suitably qualified to value the Business.
In relation to the first valuation of the Business undertaken by Mr DD on 21 September 2021 (annexure “MSF-1” to the wife’s affidavit filed 29 January 2025), Mr DD:
(a)Considered the financial statements for the group for the financial years ending 30 June 2019-2021, together with a forecast for 2022 – albeit that Mr DD commented that:
(i)The figures for 2021 and prior were said to be “essentially of no relevance given the material increase in 2021 and forecast increase in turnover profit in 2022” (at paragraph 5.21), and that the 2021 result “is only relevant to the extent it provides general support for the 2022 forecast” (at paragraph 5.22); and
(ii)“The 2022 forecast provides the best indication of short-term profitability” (at paragraph 5.23).
(b)Adopted a valuation methodology of the capitalisation of estimated future maintainable earnings (at paragraphs 5.4-5.9), applying a capitalisation rate of 23% (at paragraph 5.13) and arrived at an estimated value of the business of $15,122,600 (at paragraph 5.30).
(c)Attempted to value the goodwill of the business (using the accepted methodology of deducting the net assets from the estimated value arrived at after applying the capitalisation of future maintainable earnings), and arrived at an amount of $10,965,334 (at paragraph 5.50).
(d)Ultimately arrived at a value of the group (in particular the value of Fort & Associates Trust) of $13,507,991, which after taking into account the loan accounts in the said Trust resulted in a value of $13,438,607 (at paragraph 7.8).
In the second valuation of the Business completed by Mr DD dated 26 September 2023 (annexure “MFS” to the wife’s affidavit filed 29 January 2025), Mr DD:
(a)Had regard to the financial statements for the financial years ending 2019-2023 (at paragraph 5.1).
(b)Noted that the financial performance of the business had declined in the period between the preparation of his first and second reports (at paragraph 2.3).
(c)Adopted a value of $1,100,000 as the value of the net tangible assets of the business (at paragraph 4.4), in circumstances where he was aware that the parties had spent approximately that amount on warehouse fit-out costs.
(d)Engaged with and number of variables raised by the parties, and in particular he rejected the wife’s query of him as to the amount he had allowed in his earlier calculations to cover estimated salaries of $300,000 and $150,000 for each the husband and the wife respectively, to come to his assessment of the operating costs of the business (at paragraphs 4.14-4.21).
(e)Applied the same capitalisation of estimated future maintainable earnings methodology as in his previous report (at paragraphs 5.5-5.6), however considered that a capitalisation rate of 28% was more appropriate; in doing so explaining why he thought the earlier rate of 23% previously applied was too low (at paragraphs 5.13-5.17).
(f)Attempted to establish an “agreed forecast” for the financial year ending 2024 (at paragraph 5.32), but was unable to reach consensus with the parties (at paragraph 5.33). As a result of this dispute between the parties, Mr DD provided two possible valuation scenarios to reflect the positions of each of the parties (at paragraphs 5.34-5.36). To that end:
(i)Adopting the wife’s forecasted earnings for the 2024 year of $1,547,686, and applying a multiplier of 28%, Mr DD arrived at a valuation of $5,527,450 (at paragraph 5.36); and
(ii)Adopting the husband’s forecasted earnings of $822,686 for the 2024 year, and applying a multiplier of 28%, Mr DD arrived at a valuation of $2,938,164 (at paragraph 5.36).
(g)Attempted to arrive at a value for the goodwill of the business, in the same manner as he had previously done, by deducting the value of the net tangible assets from the business value arrived at using the capitalisation of future maintainable earnings methodology. For this purpose, Mr DD adopted a net tangible asset figure of $4,931,188 (at paragraph 5.50). To that end:
(i)Applying the husband’s forecast for the 2024 year resulted in Mr DD forming the view that the business did not “support a value for Goodwill” (at paragraph 5.53); and
(ii)Applying the wife’s forecast for the 2024 year resulted in a goodwill value of $238,188 (at paragraph 5.51).
(h)Opined that in his view the business could not support a value for goodwill (at paragraphs 5.57-5.61), commenting variously:
(i)“For the business to reach the point at which $1 of Goodwill is supported is estimated earnings of $1,438,133 being ($5,289,762 x 28%)” (at paragraph 5.54), which he considered to be closer to the wife’s 2024 forecast than the husband’s (at paragraph 5.55);
(ii)That the difference between the business supporting a value for goodwill or not on the forecasts of each of the parties was “thin” (at paragraph 5.56);
(i)In coming to this opinion, it is apparent that Mr DD provided his preliminary view in that regard to the parties in a “note” dated 20 September 2023, prior to the release of his second valuation.
(j)The report records that Mr DD received a responsive communication from the wife dated 25 September 2025 raising various queries (at paragraph 5.62), which Mr DD went on to address (at paragraphs 5.63-5.66), commenting that:
(i)He acknowledged that the dispute in the 2024 forecasts of the parties was not one for him to resolve;
(ii)Identified that he maintained a capitalisation rate of 28% despite the wife’s view that this rate was too high; and
(iii)Maintained his view that the business did not support a value for goodwill.
(k)Concluded, that after adjustments, the value of the Business adopting a net asset backing basis was an amount of $5,293,780 (at paragraph 5.84), which after adjusting loan account balances resulted in an amount of $4,899,620 (at paragraph 7.14).
(l)Went on to discuss the differences between his earlier valuation opinion and that in his second report and the reasons for the differences (at paragraphs 5.91-5.101) which included:
(i)His consideration that the sale of the business was even less likely in the current market than he earlier considered; and
(ii)His earlier valuation was based on 2022 forecasts, which despite the actual turnover being higher than forecast, the operating costs had increased.
Mr DD third report dated 15 July 2024 (annexure “MFS-3” to the wife’s affidavit filed 29 January 2025) was prepared following questions put to him by the wife’s solicitors in accordance with r 7.26. By that letter, Mr DD variously and of significance for present purposes confirmed:
(a)That he did not consider he would change his opinion as to the valuation methodology he would adopt if the actual figures for the financial year ending 2024 aligned more closely with that forecasted by the wife; and
(b)Discussed why he had applied a capitalisation rate of 28% in his second report and why he considered that rate to be appropriate.
During the hearing the wife’s senior counsel submitted that Mr DD was not instructed as the single expert pursuant to the Rules. This submission is rejected for the following reasons:
(a)When regard is had to Mr DD first report dated 21 September 2021 it is evident that:
(i)Mr DD had regard to the then applicable single expert rules (for example at paragraphs 1.10 and 8.4);
(ii)Significantly, the joint letter of instruction to Mr DD dated 16 June 2021 appended to the report, makes specific reference to and indeed enclosed a copy of the then applicable single expert rules contained in Part 15.2 of the Federal Circuit Court Rules 2001 (Cth) and Guidelines to Expert Witnesses.
(b)Whilst it is accepted that the letter of instruction to Mr DD does not specifically identify that Mr DD’s instruction and appointment by the parties is pursuant to the then applicable single expert rules, I consider it incongruous to suggest that he was instructed as anything other than the single expert, as there would not otherwise have been a reason for the parties to have sent Mr DD the single expert rules.
(c)Moreover, in circumstances where the parties continued to instruct Mr DD to prepare a second report, and where thereafter the wife put to him a series of questions in accordance with r 7.26 again, it is incongruous that the parties, and in particular the wife, would have done either of these things had Mr DD not been the single expert appointed pursuant to the applicable rules of Court.
(d)Confirming my view in that regard is that in the second report, Mr DD:
(i)Referred to the single expert rules (at paragraphs 1.12 and 8.4);
(ii)Specifically identified that the report was prepared “as if it were before the Federal Circuit and Family Court of Australia” (at paragraph 1.7);
(iii)Again was given the applicable single expert rules of Court in the joint letter of instruction dated 13 June 2023; and
(iv)The parties specifically identified in the letter of instruction that his report “may be used for the purpose of court proceedings”.
(e)Moreover, in the report of the wife’s proposed adversarial expert, Mr NN himself acknowledges that Mr DD was appointed as the single expert (annexure “MFS-7” to the wife’s affidavit filed 29 January 2025, paragraph 1.2).
Having determined that Mr DD was instructed as, and therefore is, the single expert appointed by the parties pursuant to r 7.03, it now behoves the Court to consider the wife’s application to appoint an adversarial expert.
The starting point for considering the wife’s application is found in r 7.02, which sets out the purpose of the rules regarding expert evidence as follows:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b)to restrict expert evidence to that which is necessary to resolve or determine a proceeding;
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness;
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.
Pursuant to r 7.08, the Court is empowered to appoint another expert in limited circumstances as follows:
(1)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.
(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 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.
(Emphasis added)
In addition, if a party wishes to tender a report from someone other than a single expert witness, “at a hearing or trial”, then the permission of the Court is required, pursuant to r 7.10.
The specific order sought by the wife in her Application in a Proceeding is that she be permitted to rely upon Mr NN’s valuation dated 23 September 2024.
This order however does not identify whether the wife wishes to rely on the report of Mr NN for the purposes of the interlocutory dispute only, and/or at any final hearing; given permission pursuant to r 7.10 would be needed for either circumstance.
For the purposes of the present application, I shall assume, and grant permission for the wife to rely on the report of Mr NN for the purposes of her interlocutory application only. I do so taking into account:
(a)The “limited scope” of Mr NN’s report as discussed later in these reasons, and identified by Mr NN in his report; and
(b)The wife’s formal application for permission pursuant to r 7.08 for another expert to be appointed.
Senior counsel for the wife submitted that the appointment of another expert, identified to be an “adversarial expert”, is warranted because there is a substantial difference in the valuation of the business arrived at by Mr DD and Mr Morris of close to $4,000,000. In making this submission the following three “matters” were identified as issues in dispute between Mr DD and Mr NN:
(a)Whether Mr DD had identified the future maintainable earnings for the business;
(b)The capitalisation rate applied; and
(c)The treatment of goodwill.
Senior counsel for the wife submitted that these factors met the requirements at 2(a) and (b) of r 7.08.
I do not however agree with the wife for all of the reasons that follow.
When regard is had to Mr NN’s letter of 18 July 2024, the letter of instruction to him of 17 July 2024 and his report of 23 September 2024, it is apparent that:
(a)In essence Mr DD and Mr NN agree as to both valuation methodology, and that any valuation ought include both historical performance and forecasted performance (per Mr NN’s letter of 18 July 2024 (annexure “MSF-5” to the wife’s affidavit filed 29 January 2025)).
(b)When considering Mr NN letter of 18 July 2024, it is also apparent that Mr NN sought information from the wife to enable him to better understand Mr DD’s opinion and critique it, the information requested included:
(i)The financial statements for the year ending 30 June 2024;
(ii)Forecasts beyond the 2024 financial year;
(iii)Explanations from the wife to his various queries;
(iv)Information to assist to understand the increasing values in the depreciation schedules of the financial statements; and
(v)Information to assist in understanding the increased operating costs of the business.
(c)In Mr NN’ report dated 23 September 2024 (annexure “MSF-7” to the wife’s affidavit filed 29 January 2025), Mr NN:
(i)Made clear that his report was a “Limited Scope Valuation Engagement” as he had not discussed the business with the husband (at paragraph 1.9);
(ii)Made clear that he had additional information to that which had been given to Mr DD, including financial statements for the year ending 30 June 2024, analyses prepared solely by the wife, and forecasts for the financial years ending 30 June 2025, 2026 and 2027 (at paragraph 2.16).
(iii)Considered that Mr DD first valuation was “flawed to the extent that the forecasts provided to Mr DD should have considered likely increases in cost that were known at the date of the valuation” (at paragraph 2.8), however considered that the “valuation was reasonable in the context of the circumstances that appeared to prevail at that time” (at paragraph 2.9);
(iv)Considered it “difficult to accept that the goodwill of CC Pty Ltd that Mr DD had valued at $10.965 million at 30 June 2021 had dissipated during the following two years to 30 June 2023” (at paragraph 2.13);
(v)Considered that Mr DD second valuation was flawed because:
(A)Mr DD did not examine forecasts beyond 2024;
(B)Mr DD did not form his own view about the future maintainable earnings of the business for the purpose of his valuation; and
(C)Mr NN considered that Mr DD ought have applied the same capitalisation rate of 23% in his second report as applied in his first report (at paragraph 2.14).
(vi)Mr NN ultimately arrived at a valuation adopting the future maintainable earnings methodology of between $8,923,000 and $9,858,000 (at paragraph 2.20) applying a capitalisation rate of 23% and attributing a goodwill value of $3,775,000 and $4,710,000 (at paragraph 2.21).
(vii)Mr NN otherwise agreed with the amount allowed by Mr DD for the renumeration of the parties was reasonable (at paragraphs 4.13-4.14), and that the other adjustments made by Mr DD were warranted (at paragraphs 4.15-4.18).
(viii)Mr NN was critical of Mr DD in light of the additional information he had obtained, including as to the depreciation schedules and other operating costs.
When considering all of these factors it is apparent that:
(a)The single expert Mr DD and the wife’s proposed expert Mr NN were not using the same information, seemingly in most instances through no fault of Mr DD, but as a result of the information provided by the parties themselves.
(b)Importantly, Mr NN has not obtained any information from the husband which may serve to undermine the information provided by the wife to Mr NN and the ultimate conclusions that Mr NN opined.
(c)The utility of using projections calculated by the wife only, without any input from the husband, particularly given the dispute between the parties on this very topic when Mr DD conducted his second report would appear to be a compelling source of conflict in the information provided by the wife to Mr NN.
(d)The difference in the appropriate capitalisation rate to be applied is one that can be explored in cross examination at trial if there remains an ongoing dispute about it.
(e)Questions are still able to be put to the single expert once his updated valuation is received, much in the same way that the wife did after receipt of the first report. If after doing so there remains ongoing dispute, those disputes are ones capable of being addressed at trial, or if appropriate, the wife may choose to bring a fresh application for the Court to hear evidence from another expert. To grant such an application at this stage however would be premature for all of the reasons that I have identified.
Should it not be obvious from all of those reasons, I do not consider that any of the grounds provided for in r 7.08 are met.
Should I be wrong in that regard, in any event, r 7.08 does not require the Court to appoint another expert, it simply enlivens the possibility of doing so. For all of the reasons I have already enunciated, I do not consider it appropriate to make such an order.
For all of the foregoing reasons, orders shall be made as sought by the husband for Mr DD, to prepare an updated valuation of the business, and the wife’s application for the appointment of another expert shall otherwise be dismissed.
I am conscious that the parties have advised the Court that Mr DD is taking long leave and that there will be delays to the preparation of any updated valuation, with the same not to be commenced before September 2025. These delays however will not impact the trial dates to be given to these proceedings.
Mediation
The wife asks the Court to make orders for the parties to again participate in mediation with a retired judicial officer.
The husband is opposed to this course of action without resolution of the dispute between them regarding the value of the Business.
Whilst it is always preferrable for parties to resolve proceedings amicably and utilising alternate dispute resolution, I do not consider it necessary for the Court to make orders for further dispute resolution in these proceedings. I have come to this conclusion because I consider that if these parties consider that they are able to amicably resolve these proceedings, and indeed if they are motivated to do so without incurring the financial and emotional toll of ongoing litigation, they will with the assistance of their legal representatives and of their own volition participate in mediation, as they previously did.
For all of these reasons orders shall be made in the terms that appear at the commencement of these reasons.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 4 April 2025
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