Jess & Garvey

Case [2021] FedCFamC1F 189

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jess & Garvey [2021] FedCFamC1F 189

File number(s): BRC 2175 of 2016
Judgment of: BAUMANN J
Date of judgment: 12 November 2021
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application for adversarial expert – Application granted – experts to confer – Late application for leave to amend Initiating Application and any consequential amendments to Statement of Claim – Application refused  
Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.08
Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Dillon & Dillon [2012] FamCA 319

Garvey & Jess [2021] FamCA 102

Kennon v Spry [2008] HCA 56

Division: Division 1 First Instance
Number of paragraphs: 29
Date of hearing: 2 and 5 November 2021
Place: Brisbane
Counsel for the Applicant: Mr P Hackett
Solicitor for the Applicant: Hirst & Co
Counsel for the Respondents: Mr M Kearney
Solicitor for the Respondents: Barry.Nilsson Lawyers
Counsel for the Respondents: Mr G Richardson
Solicitor for the Respondents: Mills Oakley

ORDERS

BRC 2175 of 2016

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

MS JESS

Applicant
AND:

MR GARVEY

First Respondent

MR Z GARVEY AND MR Z GARVEY AS LEGAL PERSONAL REPRESENTATIVE FOR MS GARVEY

Second Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

5 NOVEMBER 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

FF Testamentary Trust

1.That the Application in a Proceedings filed 22 October 2021 seeking that the Second Respondent provide a scheduled to the wife particularising the property interests held by the FF Testamentary Trust, be dismissed.

Adversarial expert

2.That the husband be granted leave to rely upon the affidavit of Mr GG sworn and filed 29 September 2021.

3.That forthwith the husband and the wife join in instructing Mr HH and Mr GG to confer and prepare a joint statement in relation to their respective opinions as to the current value of the property at K Street, Suburb L, setting out:

(a)the matters upon which they agree; and

(b)in the event of disagreement, the matters upon which they disagree and in each instance the reasons that disagreement remains and for the position maintained by each of them.

Leave to amend Initiating Application

4.The Applicant’s application for leave to amend the Initiating Application and any consequential amendments to the Statement of Claim relied upon by the Applicant is refused and in particular relating to the application to:

(a)seek to set aside, pursuant to s 106B of the Family Law Act 1975 (Cth) the Form of Transfer lodged 13 February 2018 in relation to the T Street, Suburb M property (paragraph 35 of the Amended Initiating Application filed 1 November 2021);

(b)claim a declaration be made on the basis of a resulting trust in the alternative (paragraph 36 of the Amended Initiating Application filed 1 November 2021); and

(c)claim declarations in respect of the alleged offset loan (paragraphs 37(a), (b) and (c) of the Amended Initiating Application filed 1…

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Jess & Garvey [2021] FedCFamC1F 189
Case
[2021] FedCFamC1F 189
Decision Date

CaseChat Overview and Summary

In this matter, the husband and wife are engaged in a legal dispute regarding the valuation of a jointly owned property located at K Street in Suburb L. The case has come before the court as an oral application by the husband to advance additional expert evidence. The wife opposes the application. The husband seeks an order for the two experts to confer prior to the trial and for permission to rely on the affidavit of Mr GG, filed on 29 September 2021, as adversarial expert evidence. The legal issues before the court include whether the husband is entitled to call additional expert evidence and, if so, whether the experts should confer before the trial.

The court examined the application in accordance with Rule 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court noted that the husband had raised questions about the valuation provided by the single expert, Mr HH, which led to the husband's engagement of Mr GG to provide an alternative valuation. The court determined that the husband was entitled to rely on the additional expert evidence as adversarial expert evidence. The court also found that the experts should confer prior to the trial to ensure consistency and clarity in their respective reports. The court provided reasons for its decision, which were pronounced on 5 November 2021.

The court allowed the husband's application and made the orders as sought. The husband was permitted to rely on the affidavit of Mr GG as adversarial expert evidence and the two experts were ordered to confer prior to the trial. The court considered that this was in the interests of justice and fairness, given the significance of the valuation to the parties' dispute. The wife's opposition to the application was dismissed.

The final orders of the court were that the husband's application to rely on the affidavit of Mr GG as adversarial expert evidence was granted and that the two experts, Mr HH and Mr GG, were ordered to confer prior to the trial. The court's decision was based on its assessment of the relevant legal principles and the specific circumstances of the case. The court's orders aimed to ensure that the parties had access to all relevant evidence and that the trial proceeded in an efficient and effective manner.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I am not persuaded by these submissions and additional oral submissions of Mr Hackett, that the assets in the FF Estate Trust are relevant to the dispute, already narrow because of the Binding Financial Agreement, and dismiss the application accordingly.ORAL APPLICATION BY THE HUSBAND TO ADVANCE ADDITIONAL EXPERT EVIDENCE I allowed Mr Kearney SC, on 2 November 2021, to make an oral application to rely upon the affidavit of Mr GG filed 29 September 2021, as an adversarial expert, as to the current value of the family owned property at K Street, Suburb L. The application is made pursuant to Rule 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), and if the Court’s permission is granted, then the husband seeks an order that the two experts, the single expert Mr HH and Mr GG, confer prior to the trial. The application is opposed by the wife. I heard oral submissions (the Second Respondent, Mr Z Garvey, not participating in this issue) from Counsel at 1.00pm on 4 November 2021. Credit should be extended to Counsel for being able to also file written submissions so quickly. On 4 November 2021, at the close of submissions, I indicated I would make a decision the following day, but provide Reasons later this week. These are the Reasons for the Order, in terms sought by the husband and pronounced on 5 November 2021. On 9 April 2021, Mr HH was appointed by Court Order as a single expert to assess the current value of K Street, Suburb L (“the Suburb L property”). The property is jointly owned by the husband and wife – a significance not lost on the parties when considering the terms of the Binding Financial Agreement. As at 25 June 2021, Mr HH, in his written report, and after inspecting the property and using six identified properties sold between 2 September 2020 and 29 May 2021, initially assessed the market value of the Suburb L property at $1,300,000. As he was permitted to do under the Rules, the husband raised issues with Mr HH’s opinion by providing to the single expert questions on 21 July 2021, which were answered on 2 August 2021 (see the affidavit of Ms JJ). Despite the propositions put to Mr HH, which seemed to raise questions about the alleged deterioration in the interior and surrounds (the husband asserts since separation in 2015), Mr HH explained why he did not see that there “is any significant variation and reduction in the value of the property taking into account the existing presentation of the subject property”. Clearly unhappy with this response, on 24 September 2021, the husband’s solicitors retained Mr GG to prepare a valuation of the property “limited to a kerbside valuation”. Subsequently, on 27 September 2021, the wife confirmed she (being the person occupying the property) does not agree to facilitate the inspection by an alternate valuer of the Suburb L property. Mr GG inspected (from the kerbside) the property on 28 September 2021, and the valuation opines that the market value of the subject property at 28 September 2021, is $1.7 million – a difference of $400,000 or a 30% increase over the value assessed by the single expert.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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