Hunter & Hunter
[2022] FedCFamC1F 148
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hunter & Hunter [2022] FedCFamC1F 148
File number(s): BRC 8046 of 2018 Judgment of: BAUMANN J Date of judgment: 16 March 2022 Catchwords: FAMILY LAW – PROPERTY – Where the parties were unable to agree on a joint letter of instruction to the single expert – Where the Court considered each parties draft letter of instructions in chambers Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: On the papers Place: Brisbane Solicitor for the Applicant: O’Neill Family Law Solicitor for the Respondent: Condon Charles Lawyers ORDERS
BRC 8046 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HUNTER
Applicant
AND: MS HUNTER
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS:
1.That the letter of instructions to the single expert be in the form set out in the draft letter prepared by the wife dated 8 March 2022.
2.That the letter of instructions include a clause requesting the single expert to make an estimate of any additional fees incurred for answering the questions raised by the wife.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Hunter & Hunter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
Contested property proceedings between the Applicant husband, Mr Hunter (“the husband”), and the Respondent wife, Ms Hunter (“the wife”), were commenced in the Federal Circuit Court of Australia in July 2018 and when a Final Hearing for four days due to commence on 15 February 2022 (listed for those dates in March 2021) was adjourned on 24 January 2022, the Applications were transferred to Division 1 of the Federal Circuit and Family Court of Australia with a request for expedition.
At a Case Management Hearing before me on 22 February 2022, it was apparent that a significant forensic issue is the current market value of the parties interests in a business now known as “B Company”, operated by the corporate entity E Pty Ltd. An earlier single expert report dated 25 June 2019 was prepared by Mr C of D Company, and was based on financial statements for the business for the five year period ended 30 June 2018.
Regrettably, the matter not having resolved through negotiations and where both parties accept that the single expert report should be “updated” on the basis of some recent financial statements, the single expert should be instructed to prepare a further report.
The parties agree that should occur, but are unable to agree on the terms of engagement of the single expert. Each party has produced their instructions which have been considered by the Court, namely:
(a)Letter by solicitors for husband dated 1 March 2022; and
(b)Letter by solicitors for the wife dated 8 March 2022.
(Both of these letters have collectively been marked Exhibit 1).
Frankly, after reading both letters, I am astounded that two competent firms of solicitors have been unable to reach a compromise on the terms of engagement of the agreed expert. This might represent the differing instructions each firm has received. The real difference between the two draft letters is that the solicitors for the wife seek to raise, what they described as “a number of limitations that were present when the initial report was prepared. There were also a number of assumptions made in preparation of the report” and instruct the single expert to consider the following issues being:
·Limitation 17(a);
·Limitation 17(b), Assumption 19(d) and Assumption 19(e);
·Limitation 17(c);
·Assumption 19(a);
·Assumption 19(b); and
·Three further additional issues.
It is not apparent why the husband takes issue with the matters raised in the wife’s solicitors draft letter, however the Court has no concerns about these issues being raised as set out in the husband’s solicitors draft letter of 8 March 2022, subject to the single expert indicating, if possible, in terms of the fees charged for the updated report, whether an estimate of the proportion of the fees incurred relating to these additional queries can be made.
Where both parties agreed the costs of the single expert is to be met by the entity “at first instance”, by proceeding in this way, further delays in having the parties identifying any questions for the single expert after the updated report issues might be avoided. By making an estimate of the extra fees incurred (if any) arising from the issues raised by the wife’s solicitors, the Court could make an adjustment between the parties at trial if it is found the additional enquires were unnecessary.
For these reasons, the Court elects that the letter of instructions to the single expert be in the form set out in the draft letter dated 8 March 2022, with an additional clause requesting the single expert to make an estimate of any additional fees incurred for answering the questions raised.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 16 March 2022
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