Henson & Marlin (No 2)

Case [2024] FedCFamC1F 488

FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)

Henson & Marlin (No 2) [2024] FedCFamC1F 488

File number(s): BRC 10186 of 2020
Judgment of: HOGAN J
Date of judgment: 12 July 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the Applicant sought leave to tender reports and rely upon evidence from a number of expert witnesses in respect of the valuation of properties in the parties’ property pool – Where the Respondent sought that the Application be dismissed – Where there was a significant difference in value of the properties and different methodology was used – Where it is ordered that leave be granted to the Applicant to rely upon additional expert evidence   
Legislation:

Evidence Act 1995 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited: Neales & Neales (2022) FLC 94-079; [2022] FedCFamC1A 41
Division: First Instance
Number of paragraphs: 47
Date of hearing: 12 July 2024
Place: Brisbane
Counsel for the Applicant: Mr Drysdale of King’s Counsel with Mr Gordon of Counsel
Solicitor for the Applicant: KLM Solicitors
Counsel for the Respondent: Mr Ferrett of King’s Counsel with Ms Eviston of Counsel
Solicitor for the Respondent: Parker Family Law

ORDERS

BRC 10186 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS HENSON

Applicant
AND:

MR MARLIN

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

12 JULY 2024

THE COURT ORDERS THAT:

1.The Applicant has leave to tender a report and rely upon evidence from the expert witness, Mr K, Senior Property Valuer of J Property Services, in relation to the following commercial properties forming part of the parties’ property pool:

(a)L Street, Suburb M, Queensland; and

(b)2 Q Street, Suburb R, Queensland; and

(c)2 S Street, Suburb T, Queensland; and

(d)1 S Street, Suburb T, Queensland; and

(e)U Street, Suburb R, Queensland; and

(f)V Street, Suburb M, Queensland; and

(g)2 AA Street, Suburb T, Queensland; and

(h)3 AA Street, Suburb T, Queensland; and

(i)2 CC Street, Suburb T, Queensland; and

(j)1 AA Street, Suburb T, Queensland; and

(k)BB Street, Suburb T, Queensland; and

(l)1 CC Street, Suburb T.

2.The Applicant has leave to tender a report and rely upon evidence from the expert witness Mr W, Director of J Property Services, in relation to the following residential properties forming part of the parties’ property pool:

(a)1 DD Street, Suburb FF, Queensland; and

(b)2 DD Street, Suburb FF, Queensland; and

(c)2 GG Street, Suburb FF, Queensland; and

(d)1 GG Street, Suburb FF, Queensland; and

(e)1 Q Street, Suburb R, Queensland; and

(f)Lot 3 and Lot 4 Q Street of 5 Q Street, Suburb R, Queensland.

3.The Applicant has leave to tender a report and rely upon evidence from the expert witness Mr HH, Director of J Property Services, in relation to the Respondent’s residential property forming part of the parties’ property pool:

(a)H Street Property, Suburb JJ, Queensland.

4.The Applicant has leave to tender a report and rely upon evidence from the expert witness Mr…

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AGLC
Henson & Marlin (No 2) [2024] FedCFamC1F 488
Case
[2024] FedCFamC1F 488
Decision Date

CaseChat Overview and Summary

In the matter of Henson & Marlin (No 2), the Federal Circuit and Family Court of Australia was asked to determine whether the Applicant should be permitted to tender reports and rely upon evidence from several expert witnesses engaged by J Property Services in respect of the valuation of various properties forming part of the parties' property pool. The Respondent, represented by Mr Ferrett, sought that the Application be dismissed. The central legal issue before the Court was whether there was sufficient justification to allow the Applicant to rely on additional expert evidence given the significant difference in property valuations and the differing methodologies used.

The Court considered the procedural history of the case, noting that an order had been made in October 2020 appointing Mr G as the single expert witness for property valuations. Despite this, the Applicant had sought to appoint an alternative single expert witness, citing discrepancies between Mr G's valuations and those provided by the National Australia Bank. Ultimately, the Court upheld Mr G's position as the single expert witness but allowed the Applicant to conduct shadow evaluations to prepare valuations from other valuers. The Court was tasked with determining if the Applicant could rely on the additional expert evidence from J Property Services in light of these circumstances.

In its reasoning, the Court acknowledged the significant difference in valuations and the differing methodologies used by the experts. The Court found that there was a sufficient special reason to permit the Applicant to rely on additional expert evidence to address these discrepancies. The Court concluded that the Applicant had demonstrated that the proposed expert evidence was necessary to ensure a fair assessment of the properties’ values. Consequently, the Court granted the Applicant's application to tender reports and rely upon evidence from the expert witnesses from J Property Services for specific properties.

In its order, the Court granted the Applicant leave to tender reports and rely upon evidence from Mr K, Mr W, Mr HH, and Mr KK, all of J Property Services, in relation to various properties. The Court also mandated that the expert witnesses confer and prepare a joint statement outlining agreed and disagreed issues. The costs associated with the application were reserved, and the application was otherwise dismissed.

Orders

Orders of the court

BRC 10186 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS HENSON

Applicant

AND:

MR MARLIN

Respondent

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

12 JULY 2024

THE COURT ORDERS THAT:

1. The Applicant has leave to tender a report and rely upon evidence from the expert witness, Mr K, Senior Property Valuer of J Property Services, in relation to the following commercial properties forming part of the parties’ property pool:

(a) L Street, Suburb M, Queensland; and

(b) 2 Q Street, Suburb R, Queensland; and

(c) 2 S Street, Suburb T, Queensland; and

(d) 1 S Street, Suburb T, Queensland; and

(e) U Street, Suburb R, Queensland; and

(f) V Street, Suburb M, Queensland; and

(g) 2 AA Street, Suburb T, Queensland; and

(h) 3 AA Street, Suburb T, Queensland; and

(i) 2 CC Street, Suburb T, Queensland; and

(j) 1 AA Street, Suburb T, Queensland; and

(k) BB Street, Suburb T, Queensland; and

(l) 1 CC Street, Suburb T.

2. The Applicant has leave to tender a report and rely upon evidence from the expert witness Mr W, Director of J Property Services, in relation to the following residential properties forming part of the parties’ property pool:

(a) 1 DD Street, Suburb FF, Queensland; and

(b) 2 DD Street, Suburb FF, Queensland; and

(c) 2 GG Street, Suburb FF, Queensland; and

(d) 1 GG Street, Suburb FF, Queensland; and

(e) 1 Q Street, Suburb R, Queensland; and

(f) Lot 3 and Lot 4 Q Street of 5 Q Street, Suburb R, Queensland.

3. The Applicant has leave to tender a report and rely upon evidence from the expert witness Mr HH, Director of J Property Services, in relation to the Respondent’s residential property forming part of the parties’ property pool:

(a) H Street Property, Suburb JJ, Queensland.

4. The Applicant has leave to tender a report and rely upon evidence from the expert witness Mr KK, Associated Director of J Property Services, in relation to the Applicant’s residential property forming part of the parties’ property pool:

(a) LL Street, Suburb MM, Queensland.

5. Pursuant to r 7.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the parties shall:

(a) arrange for the expert witnesses, Mr K, Mr W, Mr KK and Mr HH of J Property Services and Mr G of EE Company to confer at least 28 (twenty-eight) days prior to the first day of the trial listed for 16 September 2024; and

(b) give the respective expert witnesses, that each party has instructed, a copy of the Court approved brochure entitled “Experts’ Conferences - Guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia”.

6. At the conference, the expert witnesses must:

(a) identify the issues that are agreed and not agreed; and

(b) if practicable, reach agreement on any outstanding issue; and

(c) identify the reasons for disagreement on any issue; and

(d) identify what action (if an) may be taken to resolve any outstanding issue; and

(e) prepare a Joint Statement:

(i) specifying the matters referred to in Order 6(a) to 6(d); and

(ii) deliver a copy of the Statement to each party.

7. The Amended Application in a Proceeding filed 6 June 2024 is otherwise dismissed.

8. The costs of and incidental to the Amended Application in a Proceeding filed 6 June 2024 are reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Ferrett, who appeared for the Respondent, submitted that I would not be satisfied that the Applicant has established the matter prescribed in subrule (b). I accept that submission.Applicant’s application for leave to adduce adversarial expert evidence at the trial I turn then to consider whether the Applicant has persuaded me to be satisfied that there is another special reason for adducing evidence from other expert witnesses (here, the J Property Services valuers) and to permit her to adduce evidence from them given the existence of the evidence produced and adduced by the single expert witness. In order to appreciate the circumstances in which the application arises, it is necessary to refer briefly to the chronology of matters. These are set out, helpfully, in the affidavit relied upon in the Applicant's case and may be summarised very briefly as follows. On 6 October 2020, an order was made appointing Mr G as the single expert witness for the purpose of valuing real properties for the purpose of the proceedings. It appears that that exercise was undertaken on 8 December 2020, and a valuation filed on 2 June 2021. On 4 October 2022, an order was made for the single expert witness to prepare updated valuations of the real properties. On 22 February 2023, the Applicant filed an Application in a Proceeding seeking, amongst other things and in essence, an order that an alternative person be appointed as the single expert witness for the purpose of valuing the real property and motor vehicles of the parties. It seems that the bases relied upon for the relief sought at that time included the assertion that the single expert witness’s valuations were significantly lower than the values apportioned to real properties by the Respondent's bank, the National Australia Bank, and it seems it was asserted that the difference between the single expert witness’s values and those advanced on behalf of the bank was over $2.5 million – even though this is said to have related only to 17 of the 22 properties valued by Mr G in December 2020. On 5 October 2023, a Senior Judicial Registrar made a number of orders including, in essence and in substance, that Mr G remain as the single expert witness and that the orders made previously in relation to his appointment as such continue; in relation to valuations of real property and motor vehicles, various other orders were made on that day. It appears that subsequent orders were made in December 2023 to facilitate the Applicant putting into effect her advised course of action to have valuations of the real properties prepared by other valuers or a valuer other than the single expert witness – in essence, by way of shadow evaluations. It seems that Mr G conducted updated valuations of the real properties on 8 December 2023 and subsequently opined that the total value of the same was $36,270,000. On 18 January 2024, an order was made for the parties to confer with the single expert witness in accordance with Rule 7.25. Other orders made on that day are perhaps not relevant to the current application.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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