GORTON & ELLIS - [2009] FamCA 1143

FAMILY COURT OF AUSTRALIA

GORTON & ELLIS

[2009] FamCA 1143

FAMILY LAW - PROPERTY - Value of property - Expert evidence - Where single expert has been appointed to provide a current valuation of a property - Wife dissatisfied with the single expert’s valuation and seeks the appointment of an adversarial expert as well as an expert to provide a historical valuation of the property at the time of cohabitation - Wife’s application is dismissed - Wife may convene a conference with the single expert witness - The existing single expert witness is also appointed as single expert to provide a historical valuation of the property
FAMILY LAW - COSTS - Husband’s oral application for costs is dismissed

Family Law Act 1975 (Cth)

Gemmell & Gemmell [2009] FamCA 29

APPLICANT:

Ms Gorton

RESPONDENT:

Mr Ellis

FILE NUMBER:

NCC

2280

2008

DATE DELIVERED:

5 November 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

5 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamilton

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Ms Seaton

Orders

The Application in a Case filed on 29 October 2009 is dismissed.
The applicant wife may convene a conference with the single expert witness, Ms C of C Property Valuers, upon the following conditions:
a.The conference must take place within 21 days;
b.The respondent husband is permitted to attend the conference;
c.The cost of the single expert in attending the conference shall be borne in equal shares by the parties if the respondent husband attends the conference, otherwise by the applicant wife; and
d.The applicant wife shall furnish to the single expert in advance of the conference copies of any alternate expert valuation opinion about which the single expert will be asked questions.
Ms C of C Property Valuers is appointed as the single expert to prepare a valuation report in respect of the real property described as M property, New South Wales, disclosing her opinion as to the market value of that property as at the date of cohabitation, being April 1996.
The parties shall within seven days jointly instruct the single expert to prepare the valuation report.
The parties shall ensure that in the letter of instructions provided to the single expert, the expert is furnished with copies of, or has her attention drawn to, the provisions of Divisions 15.5.2 and 15.5.6 of the Family Law Rules.

PENDING FURTHER ORDER

The parties are to bear the costs of the single expert’s report in equal shares.

IT IS FURTHER ORDERED

The trial of this matter is listed to continue before Justice Austin at 9:30 am on Friday, 4 December 2009.
The Court entertains the oral application for costs made by the respondent husband.
The application for costs is dismissed.

NOTATIONS

A.The applicant wife contends that the existing valuation report of the single expert will need updating, having regard to the likely passage of time between the date of the existing valuation report and the date of the final hearing. The question of a direction for the single expert to update her report will be considered at the next case management event.
B.The Court expects the parties to have obtained valuation evidence in respect of all matrimonial assets, as contemplated by the Orders made on 7 September 2009 and 5 November 2009, by the time the matter is next mentioned on 4 December 2009, or alternatively, to have reached agreement as to valuations.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2280 of 2008

MS GORTON

Applicant

And

MR ELLIS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The parties in these proceedings remain in dispute about final parenting and property adjustment orders.
The matter came before me on 7 September 2009, at which time procedural orders were made concerning the readiness of the property adjustment dispute for hearing. Those orders were made by consent. The matter was adjourned until today for further case management.
In the meantime, on 29 October 2009, the applicant wife filed an Application in a Case seeking certain orders. That Application goes to two discrete issues:
a)Firstly, the appointment of an adversarial expert to offer an alternate opinion as to the current market value of real property described as … property, New South Wales (but more commonly referred to by the parties in these proceedings as the M property), it being noted that an opinion has already been furnished by an appointed single expert; and
b)Secondly, the appointment of a single expert to offer an opinion as to the market value of the very same parcel of property as at the date of cohabitation of the parties.
In support of the Application in a Case, the applicant wife reads the affidavit of Ms H filed 29 October 2009, and the affidavit of her proposed adversarial expert, Mr L, filed on 29 October 2009. That evidence is not the subject of contest at this interlocutory stage.
In rebuttal of the Application in a Case, the respondent husband tendered a bundle of documents, without objection, which became Exhibit H1. The documents comprising that exhibit are not the subject of contest.
Dealing with the first part of the applicant wife’s Application, the M property is one of the assets forming part of the pool of property for ultimate distribution between the estranged spouses.
Some months ago, the parties through their solicitors, agreed upon the identity of a single expert witness to provide an opinion as to the current value of the M property.
By way of a letter dated 4 June 2009, the solicitor for the applicant wife proposed that the single expert be Ms C, of C Property Valuers. The respondent husband agreed with that proposal, and Ms C was accordingly appointed as the single expert. The parties jointly furnished the single expert with a letter of instruction, and the single expert discharged her duty by preparing a valuation report in relation to the property, dated 20 July 2009.
That report was published to both of the parties. At some short time following the publication of the single expert’s report, the solicitor acting for the applicant wife advised the solicitor acting for the respondent husband that the wife did not accept the single expert’s valuation.
Given the applicant wife’s dissatisfaction with the single expert’s opinion, she should then have obtained the consent of the husband, or alternatively a court order pursuant to rule 15.64B of the Family Law Rules within 21 days of the publication of the report, to hold a conference with the single expert.
Alternatively, the applicant wife could have posed a series of questions to the single expert within that same time frame, pursuant to rule 15.65 of the Family Law Rules.
The applicant wife did neither. She cannot complain of ignorance of the Rules, because she is legally represented.
The applicant wife belatedly raised the issue of a conference and the potential for questions to be posed to the single expert in a letter dated 22 September 2009, sent by her legal representative to the lawyers acting for the respondent husband. Her requests in that regard were rebuffed.
The applicant wife notified the respondent husband, by way of letter dated 28 September 2009, of her intention to bring the present Application. Why the filing of the application was then delayed for another month until 29 October 2009 is unknown.
Ryan J, in the case of Gemmell & Gemmell [2009] FamCA 29, deals with the principles concerning the appointment of an adversarial expert, pursuant to rule 15.49, when a single expert has already been appointed to address the issue in dispute. In general terms, Her Honour decided that the court ought not entertain an application for such an appointment of an adversarial expert until the party seeking the appointment has exhausted his or her entitlements pursuant to rules 15.64B and 15.65.
The applicant wife is cognizant of the need to establish her current application within the parameters of rule 15.49(2) of the Family Law Rules.
Learned counsel appearing for the applicant wife contends that the available evidence demonstrates scope for the grant of the application pursuant to rule 15.49(2)(b), on the basis that the proposed adversarial expert witness knows of matters not known to the existing single expert witness, implicitly asserting that those matters are necessary for determining the issue in dispute.
The matters allegedly unknown to the single expert witness are the sale of two parcels of real property, said to be benchmark sales, which would assist in determining the real current market value of the M property.
One of those parcels was sold in September 2009. Clearly the sale of that property was not taken into account by the single expert, because the sale of that property occurred some months after the single expert’s report was prepared.
The other parcel of property is a parcel of vacant land situated at MH, which was sold on or about 17 June 2009. Assuming that the sale date is correctly recorded as 17 June 2009, the evidence is silent as to whether that sale date represents the date of the contract, or the date of the settlement of the contract. In any event, it is common ground that the sale of that property was not taken into account by the single expert at the time she prepared her report, dated 20 July 2009.
Although it might be said that that is an important piece of evidence that ought have been taken into account by the single expert, the adversarial expert proposed by the applicant wife himself recommends that the single expert be given the opportunity of reviewing her valuation in the light of those two sales. Frankly, that seems to me to be a very good idea.
There may have been some attempt by the applicant wife to also place reliance upon rule 15.49(2)(c) to support her application, but I am unable to identify any other special reason in the evidence so far adduced warranting the appointment of an adversarial expert in the proceedings.
As a consequence, the application for orders 1 and 2 in the Application in a Case filed on 29 October 2009 is dismissed. However, I will make orders permitting the applicant wife to arrange a conference with the single expert beyond the timeframe contemplated in the Family Law Rules.
As to the second issue agitated by the Application in the Case, the parties already hold an opinion from a single expert as to the current value of the M property. However, procedural Order 1.1.1, which was made on 7 September 2009 by consent, contemplated the need to value that property historically as at the date of the parties’ cohabitation.
The written submissions of the respondent husband assert that the parties are agreed with respect to the instructions that ought be issued to the single expert for the historical valuation. In the absence of challenge, I accept that to be correct.
However, the parties remain in dispute about the identity of the single expert charged with the responsibility of carrying out the historical valuation. The applicant wife therefore invokes Order 1.4, made on 7 September 2009, seeking further procedural orders about the identity of the appointed single expert.
The single expert appointed to value the property currently, being Ms C, was the person suggested by the applicant wife herself in a letter written by her solicitors to the husband’s solicitors, dated 4 June 2009. The husband asserts that the same person should offer expert evidence as to the historical value of the same property. The wife would like a different valuer appointed, because she is dissatisfied with the valuation opinion so far offered by the existing valuer. The wife even suggests someone other than her existing valuer, Mr L, whom she proposed be appointed as an adversarial expert as to the current value of the property.
For consistency, in my view, the same valuer should be retained. In that event, the applicant wife will still retain her rights under rules 15.64B and 15.65 to convene a conference with, and pose questions to, the single valuer in respect of the new valuation evidence.
I will therefore make orders appointing the same single expert. Consequently, the application for orders 3 and 4 in the Application in the Case filed 29 October 2009 is dismissed.
For those reasons, I make the following orders.

Costs

I entertain the oral application for costs made by the husband, but dismiss the application for costs. Briefly stated, my reasons for that are as follows.
The matter was listed before the court today for procedural case management in any event. The matter was stood in the list for quite some time at the request of the parties, but that was on the basis that the parties were negotiating broader issues than just the general procedural management of the case and the Application in a Case pending before the Court.
Although the applicant wife has not succeeded with the precise orders that she has sought in the Application in a Case, the ultimate outcome has been that the wife is able to pursue inquiry of the single expert.
It was necessary for an Application to be brought by the wife in order for the orders now made by the Court to have been made, given that there was no consent offered by the husband. The Application was necessitated in the first instance because the letter sent by the lawyers for the wife to the lawyers for the husband requesting that these matters be dealt with on a consensual basis was met with a “stone wall” response.

ORDERS DELIVERED

I certify that the preceding 34 paragraphs are a true copy of the reasons for judgment of Justice Austin.

Associate:

Date: 5 November 2009