HAYDEN & HAYDEN

[2014] FamCA 687

FAMILY COURT OF AUSTRALIA

HAYDEN & HAYDEN [2014] FamCA 687

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties agree that a single expert be appointed to value a real estate property – Where the parties are in dispute as to who is to prepare the letter of instruction – Where it is considered a qualified professional should draft the letter of instruction to the single expert appointed – Where the wife seeks that the husband pay the costs of a valuation report she unilaterally obtained – Where the wife’s application is dismissed

Family Law Rules 2004 (Cth) r 15.45

APPLICANT: Mr Hayden

RESPONDENT: Ms Hayden

FILE NUMBER: PAC 1117 of 2013

DATE DELIVERED: 12 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 12 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Morley

SOLICITOR FOR THE APPLICANT: Aaron Legal

THE RESPONDENT: Self-represented Litigant

Orders

1. By consent pursuant to rule 15.45 of the Family Law Rules the Court appoints a single expert witness to value the property at B Street, Suburb C News South Wales Lot … in Deposited plan ...

2. By consent, the parties are to jointly approach the President of the Australian Property Institute New South Wales Chapter to request that the President or his or her delegate appointment a single expert witness for the purposes of order 1.

3. The husband will in the first instance bear the costs of approaching the President of the Australian Property Institute.

4. The Applicant’s solicitor is to prepare a letter of instructions to the appointed single expert witness.

5. By consent, the Respondent will cooperate in every way to ensure that the single expert witness is provided with access to the Suburb C property in a timely manner to enable the preparation of the expert’s report.

6. The Applicant will in the first instance bear the costs of the single expert’s reasonable fees and expenses incurred in preparing a report and any required Court attendance.

7. The liability for the payment of costs referred to in orders 3 and 6 is to be determined at the final hearing.

Notation

1. It is noted that the Respondent’s affidavit is in the English language whereas she has required the assistance of an interpreter today.  That the Respondent is to obtain advice in relation to the issue of having her affidavit translated and that in the event that the Respondent seeks to adjourn the hearing of the matter for the purposes of obtaining a translation, costs will be sought in relation to that adjournment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayden & Hayden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1117 of 2013

Mr Hayden

Applicant

And

Ms Hayden

Respondent

REASONS FOR JUDGMENT

1. Property proceedings between the Applicant and the Respondent have been ongoing since March 2013.

2. One of the significant items of property owned by the parties is the former matrimonial home at B Street, Suburb C.

3. In the course of the preparation of the matter for trial, a number of valuations of the property have been obtained, though the exact number is not clear, with the wife asserting that it has been up to 13 valuations. I do not have evidence of 13 valuations before me.

4. In any event, a valuation was prepared by a valuer, Mr D, in November 2013. It is a matter in dispute between the parties whether or not Mr D was in fact an agreed single expert witness. Initially, it seemed that the Applicant husband would be pursuing the argument that Mr D had in fact been appointed by agreement between the parties as a single expert witness. It then became apparent that there is a very significant factual difference between the parties on this issue and that a consideration of all of the evidence in relation to that factual dispute may take some time. In that regard, I refer to the Respondent’s affidavit, which is approximately three to four centimetres thick.

5. Ultimately, it was the husband’s application that, notwithstanding that he may have originally regarded Mr D as a single expert witness agreed upon between the parties, for the sake of progressing the matter, which has stalled significantly over the issue of valuation, he seeks an order that the Court appoint a single expert witness to value to the property.

6. Although the wife initially opposed the application in her Response, this opposition seemed mainly to be related to the issue of the Applicant husband seeking to choose the relevant single expert witness from a list provided by him and the fact that the husband seeks to provide the letter of instruction to the single expert witness and have the costs shared between the parties, rather than opposing the appointment of an expert itself.

7. Ultimately, when the suggestion was made that the Applicant and Respondent jointly approach the President of the Australian Property Institute of New South Wales Chapter to have the President or the President’s nominee appoint a single expert the wife agreed to orders that the single expert witness be appointed to value the property and the method by which that appointment is to be made. The wife continued to oppose, however, that the Applicant’s solicitor prepare the letter of instruction to the appointed single expert witness on the basis that she does not trust him, and she also opposed the application that she pay the Applicant’s costs of today’s application and half of the costs associated with the appointment and preparation of the single expert’s report.

8. The Applicant husband suggested in relation to that last issue that he pay the initial costs associated with the appointment of the expert, the preparation of the report and the expenses incurred in any Court attendance and that the liability for those costs, together with the costs of today’s application, be determined in the final hearing. I sought the wife’s response to that proposal but she declined to make submissions on that issue.

9. In her Response to the husband’s application the wife did not ultimately press her own application, which I understand to be that a valuer’s report she had obtained herself be treated as the report of another expert witness, that is, an adversarial witness in support of her case, or an order she had originally sought in relation to her valuer, Mr E, and the Court appointed valuer conferring with one another.

10. As I have also indicated, although she originally opposed the application for a single expert witness to value the property, in the course of the proceedings, she consented to it on the basis that the appointment of the expert was through the President of the Australian Property Institute of New South Wales Chapter.

11. She did, however, press an order that the Applicant pay the costs of obtaining Mr E’ report.

12. In other words, ultimately the only matters for me to determine today are the application that the Applicant’s solicitor prepare the letter of instruction to the appointed single expert witness and the application by the Respondent that the Applicant pay Mr E’s fees for his report.

13. So far as the letter of instruction to the appointed single expert witness is concerned, the Respondent wife submits that she is the person who should write that letter. In my view, it would be preferable for a qualified person, such as a solicitor, write the letter of engagement as the solicitor is familiar with matters such as the Family Law Rules 2004 (Cth) relating to single expert witnesses, which unfortunately is an area in which I understand the wife not to be qualified.

14. So far as the trustworthiness of the solicitor is concerned, solicitors have professional and ethical obligations which they must comply with, and as officers of the Court, the Court also takes that into account.

15. In all of the circumstances, in my view, it is the most appropriate order that the Applicant’s solicitor prepares the letter of engagement and I will make an order accordingly.

16. So far as the payment of Mr E’s fees are concerned, it is clear that the wife, even on her own affidavit, engaged Mr E, who at that stage could only be described as another expert witness or an adversarial witness, which supported one party’s case and the permission of the Court had not been sought or obtained. It may be that this is as a result of a misunderstanding by the wife as to the legal situation, even though she was legally represented. However, bearing in mind that the wife does not press her application in relation to Mr E’ appointment and the way in which he was engaged without the consent or involvement of the Applicant husband, there is no basis upon which the Court could order that the husband pay the costs involved in preparation of that report. Accordingly, the application for that order will be dismissed.

17. For those reasons the Orders of the Court are as following:

    (1)By consent pursuant to rule 15.45 of the Family Law Rules the Court appoints a single expert witness to value the property at B Street, Suburb C News South Wales Lot … in Deposited plan ...

    (2)By consent the parties are to jointly approach the President of the Australian Property Institute New South Wales Chapter to request that the President or his or her delegate appointment a single expert witness for the purposes of order 1.

    (3)That the husband will in the first instance bear the costs of approaching the President of the Australian Property Institute.

    (4)That the Applicant’s solicitor is to prepare a letter of instructions to the appointed single expert witness.

    (5)That by consent the Respondent will cooperate in every way to ensure that the single expert witness is provided with access to the Suburb C property in a timely manner to enable the preparation of the expert’s report.

    (6)That the applicant will in the first instance bear the costs of the single expert’s reasonable fees and expenses incurred in preparing a report and any required Court attendance.

    (7)That the liability for the payment of costs referred to in orders (3) and (6) be determined at the final hearing.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 12 August 2014.

Legal Associate:                  

Date:    25 August 2014