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…

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 GORTON & ELLIS

Details

AGLC: GORTON & ELLIS [2009] FamCA 1143
Case: [2009] FamCA 1143
Decision Date: 5 November 2009

CaseChat Overview and Summary

In the matter of Gorton & Ellis, Austin J of the Family Court of Australia considered an application by the applicant wife concerning the valuation of a property. The dispute centred on the need for an updated valuation of the "M property" in New South Wales, given the passage of time between an existing valuation report and the anticipated final hearing. The court also addressed the applicant wife's request to convene a conference with the single expert witness.

The primary legal issues before the court were whether to direct the single expert to update her existing valuation report, and the conditions under which a conference between the applicant wife and the single expert should be permitted. The court was also required to determine the appointment of a single expert to prepare a valuation report as at the date of cohabitation, and the instructions to be provided to that expert.

Austin J reasoned that the existing valuation report would likely require updating due to the passage of time. The court made orders appointing Ms C of C Property Valuers as the single expert to prepare a valuation report as at April 1996, and directed the parties to jointly instruct her. The court also permitted the applicant wife to convene a conference with the single expert within 21 days, subject to specific conditions including the respondent husband's attendance and the equal sharing of costs if he attended. The court further ordered that the parties bear the costs of the single expert's report in equal shares and listed the trial to continue on 4 December 2009. The application by the applicant wife was dismissed, and the respondent husband's oral application for costs was also dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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