Kelby and Kelby (No. 3)
[2017] FamCA 1171
•30 June 2017
FAMILY COURT OF AUSTRALIA
| KELBY & KELBY (NO. 3) | [2017] FamCA 1171 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application to discharge the single expert valuer – Application to dismiss application on the basis of previous orders being not complied with – Where orders have since been complied with – Where non-completion of the single expert valuer is subject of complaint – Where conduct of party has led to the non-completion of single expert’s report |
| Family Law Rules 2004 (Cth) r 15.47(2), 15.49, 15.52, 15.59, 15.64 |
| Bass v Bass (2008) FLC 93-366 Watson & Watson [2013] FAMCAFC 25 |
| APPLICANT: | Mr Kelby |
| RESPONDENT: | Ms Kelby |
| FILE NUMBER: | SYC | 8071 | of | 2014 |
| DATE DELIVERED: | 30 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 16 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGirr |
| SOLICITOR FOR THE APPLICANT: | McGirr Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Fernon |
| SOLICITOR FOR THE RESPONDENT: | Yates Beaggi Lawyers |
Orders
The wife’s application that the husband not be heard on his application to discharge the single expert is dismissed.
The husband’s application seeking the discharge of the single expert is dismissed.
On or before the expiration of 14 days from the date hereof the single expert is to provide to the Court a statement of outstanding invoices which he requires to be paid by the husband of the wife.
Within 14 days the wife is to file and serve a minute of any order she seeks in relation to costs arising from the matters determined by these orders. If the wife seeks an order for costs she is to also serve any affidavit she seeks to rely upon together with her written submission at the time she files the said minute of order.
On or before the expiration of 28 days from the date hereof the husband is to file and serve any minute of order he seeks (including, if sought, a simple request that all costs application sought by the wife and the single expert be dismissed), together with any additional written submission he seeks to rely upon. The court notes the husband has already provided written submissions in relation to the sums the single expert has sought be paid by the husband.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelby & Kelby (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8071/2014
| Mr Kelby |
Applicant
And
| Ms Kelby |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding concerns orders sought by the husband in his Applications in a Case filed on 25 July 2016 and 22 August 2016 to discharge the single expert, Mr R. There is also an order sought in a Response to an Application in a Case filed by the single expert, Mr R, on 30 September 2016. In that document the single expert seeks an order for payment of his fees which were outstanding at the time of the filing of his Response and supporting affidavit.
The appointment of Mr R as a single expert arose from an order made on 17 April 2015 which required the parties to either agree on values for their assets or alternatively appoint single experts to undertake valuation work. One of the assets is a corporation in which each of the parties holds shares. That corporation is J Pty Ltd (“JPL”). That corporation is the owner of a property at Suburb S in the State of NSW.
The evidence discloses that on 26 June 2015 Mr R acknowledged to each of the parties legal representatives receipt of a joint letter of instruction. Thereafter Mr R sent to each legal representatives a contract titled “engagement letter” which set out the terms upon which the single expert would be prepared to be engaged, and a request for acceptance of those terms to be returned.
Although it took some time for the husband to provide his acceptance of the terms of engagement, he nonetheless eventually did so.
When the matter was before the Court on 27 October 2015 the court record shows the parties jointly signed a consent order which provided inter alia: “The husband within 4 weeks provide all the corporate documents of [JPL] as require [sic] by [Company P] accountants, the single expert appointed for the valuation.”
In support of his Application to discharge the single expert, the husband relied on two affidavits sworn by him on 22 July 2016 and 17 August 2016. He also provided written submissions pursuant to direction made by me on 16 February 2017.
When the matter was heard by me on 16 February 2017 I made the following orders and directions.
1.I reserve judgment in relation to whether the matter should be heard in circumstances where the husband is said to be in breach of previous orders.
2.I reserve judgment on the issue of whether to discharge the single expert.
3.I direct that the wife provide written submission opposing that application by close of business Monday 20 February 2017.
4.I direct that the husband provide any response thereto by close of business 24 February 2017.
5.I note that the question of payment of funds to [Mr R] will need to abide the outcome of the discharge application and so further directions will be made at the same time as orders are made by me in the determination of the discharge application.
As can be seen from the above order/directions, there were two aspects only which I had to decide. I will determine those two issues under clear headings.
The wife, in her Response to an Application in a Case filed 22 September 2016, opposes the orders sought by the husband to discharge Mr R. She relied upon an affidavit of Mr R filed 30 September 2016, an affidavit of Mr N filed 6 February 2017, and written submissions. The wife also sought that an expert be appointed to conduct a forensic examination into the husband’s business, JPL. Given that the wife’s application for the appointment of a further single expert really abides the determination of the husband’s application to discharge the existing single expert, I will not determine that part of the wife’s application as is clearly evident from the directions I made on 16 February this year. In any event the evidence relied upon by the wife may need to be re-considered by those who represent her after I have determined the issues identified in the orders of 16 February 2017.
Before the return date of the application filed by the husband, namely 10 October 2016, Mr R filed a Response whereby he sought to be heard on the issue of outstanding costs owed to him by the parties, but not on the issue of whether he should be discharged. He submitted that he has not yet prepared the expert report due to outstanding fees owed to him by the parties.
Submissions
The wife’s submissions on whether the husband should be heard.
The wife submitted the husband should not be heard on his application because he was in breach of an Order made against him by Rees J on 28 August 2016. That order provided as follows:
IT IS ORDERED
(1)That within twenty-eight (28) days of the date of these Orders, the husband pay to the wife, by way of interim property settlement, the sum of $250,000.
(2)In default of payment of the sum referred to in Order 1 by the due date, the husband do all acts and things and sign all documents required to effect the sale of the property at B Street, Suburb C (“Property D”), to pay the costs of the real estate agent and the legal costs of sale and to pay one half of the balance remaining to the wife by way of interim property settlement.
(3)That the wife’s application for spousal maintenance is dismissed.
(4)That, in the event the husband proposes to dispose of, encumber or deal with his interest in the property at E Street, Suburb F he shall give the wife no less than fourteen (14) days’ notice in writing of his intentions.
(5)That the wife’s application for restraining orders contained in Orders 4 and 5 of the Amended Application in a Case filed 14 July 2016 is dismissed.
(6)That the wife’s application for the provision of documents contained in Order 6 of the Amended Application in a Case filed 14 July 2016 is dismissed.
In an affidavit sworn by the wife’s solicitor Mr N on 3 February 2017, the history of the wife seeking to implement to order of 28 August 2016 is recited. In short the evidence is as follows:
·The husband did not pay the $250,000 as required;
·The husband did engage real estate agents to sell the Property D;
·The wife says the husband withdrew the property from sale in January 2017.
The affidavit of the wife’s solicitor relies upon hearsay evidence in crucial areas, however, at the hearing before me the husband conceded he had listed Property D for sale, as required by the Court Order, and then had withdrawn the property from sale. The husband informed the Court through his lawyer that he was wanting to return to that part of the order (now expired) that allowed him to pay to the wife a sum of money (although it was less than the $250,000). In any event, it was common ground that the wife was not prepared to settle the dispute as the husband desired and she was pressing for compliance with the Court Order, namely the sale of Property D.
In his oral submissions the husband’s lawyer informed the Court that the husband had “cashed in” his superannuation in order to raise a sum to pay to the wife and he further intended to have Property D sold by auction.
The wife in her submissions relied upon the decision of Watson & Watson [2013] FAMCAFC 25. In particular paragraph 36 of that Full Court judgment was relied upon.
36. From the detailed discussion by the Full Court in Fahmi of the various authorities referred to, and the express or implicit acceptance of particular statements of principle or approach, the following propositions emerge as to the discretionary rule that a party in a contempt may not be heard when a court is exercising jurisdiction under the Act:
(a)Procedural justice dictates that the fact that a party has disobeyed an order of the Court is not of itself a bar to the party being heard on a subsequent application brought by that party;
(b)In courts exercising jurisdiction under the Act, the rule, when it operates, gives rise to a discretion not to permit a party being heard. That is, unlike other jurisdictions such as New South Wales and South Australia where the rule is to be applied as a strict rule subject to limited exceptions, in this jurisdiction the discretionary approach applies (as to New South Wales see Young J in Young v Jackman (1986) 7 NSWLR 97; 11 Fam LR 331 at 335 referring to the Court of Appeal decision in Permewan Wright Consolidated Pty Ltd v Attorney General (unreported, Court of Appeal, Hutley JA, 11 December 1978); and as to South Australia see per Bray CJ (with whom Mitchell and Jacobs JJ agreed) in Short v Short (1973) 7 SASR 1 at 11);
(c)The rule applies where facts establish disobedience of an order, even though there has been no application for the party to be dealt with for contravention or contempt, and no determination has been made that the party is guilty of a contravention or contempt;
(d)The Court may, in its discretion, refuse to hear a party in breach of an order only if that party makes an application in the same proceedings or in the same cause in which the disobedience of an order has occurred. If the application by that party is not in the same proceedings or in the same cause of action in which the contempt has been committed, no question as to the party in alleged contempt being heard arises;
(e)The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of the definition of “matrimonial cause” in the Act, the relevant parts of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately whether the proceedings may be identified as distinct because the nature of the relief claimed in them respectively is determinative;
(f)No question as to a party being heard arises:
(i)if that party is defending, rather than bringing, an application;
(ii)on an appeal by the party to set aside the order on which the alleged contempt is founded;
(iii)where a party applies for the purpose of purging the party’s contempt;
(iv)where a party against whom contempt is alleged seeks to be heard on a submission that, having regard to the true meaning and intent of the order which the party is said to have disobeyed, the party’s actions did not constitute a breach of it, or having regard to all the circumstances, the party ought not to be treated as being in contempt.
(g)Where the discretion arises its exercise depends upon the balance between that party’s right to procedural justice, including the right to be heard, and public policy considerations. Those public policy considerations include that if the party’s disobedience is such that, so long as it continues, it impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth, or to enforce the orders which it may make, or the party’s further application constitutes an abuse of process in the circumstances, then the Court is unlikely to exercise its discretion in favour of hearing the party or entertaining the application of the party.
A relevant matter fact which the court record discloses is that the subject Property D has now been sold. There have been subsequent proceedings between the parties relating to the sale.
The husband did not specifically refer the Court to any decision or section of any relevant Act. He simply submitted that the Court should exercise discretion, if necessary, to allow the husband to be heard on the application under consideration.
Considering the matters set out above on this issue I am prepared to exercise the Court’s discretion and allow the husband to be heard notwithstanding that at the time of the hearing of the application the husband may have been in breach of Court Orders. The reason is capable of being expressed in concise terms as follows:
·There is debate as to whether the husband was in breach of the order for the sale of the subject property. Although he acknowledged through his solicitor that he had withdrawn the property from sale by private treaty, his solicitor informed the Court that it was done only because the husband had thereafter listed the property for sale by auction. I note there was no corroborative evidence to support that assertion (such as an agency agreement) it is reasonable to accept the assurance of an officer of the Court (the husband’s solicitor) that such an event had occurred.
·It is clear from the Court record that the subject property has now been sold.
·No other prejudice to the wife is established by allowing the husband to be heard.
The Order of the Court will be to dismiss the wife’s application that the husband not be heard on the application to discharge the single expert.
Submissions of the application to discharge the single expert
The husband made oral submissions to the Court and later filed short written submissions.
The husband relied on the following grounds in his application to set aside the single expert, those being:
a)Mr R had failed to complete his valuation report;
b)Mr R had improperly relied on a letter dated 29 September 2015 (which contained the valuation of a property owned by JPL situated at T Street, Suburb S) that was provided to him by the wife’s solicitor;
c)Mr R engaged in a forensic examination of the value of JPL, which was beyond his retainer;
d)Mr R had communicated with the wife without the knowledge or consent of the husband and entered into a “secret agreement” in relation to the wife’s fees for his report; and
e)The single expert’s tardiness.
In his written submissions, the husband also responded to the wife’s application that a forensic expert be appointed to value the company JPL. He submits that the wife is seeking to conduct a very expensive “fishing expedition” and that she is “playing games”. The husband submits that if a forensic expert is appointed, the report of Mr R would become redundant and all costs and fees in relation to that report would be wasted.
Submissions of the wife
The wife filed written submissions in relation to the husband’s Application to discharge Mr R.
In relation to Mr R’s failure to prepare the report, the wife submitted that this criticism is not warranted as fees are still owed by the husband and wife. She submitted that Mr R is entitled by the Family Law Rules 2004 (Cth) (“the Rules”), specifically subrule 15.47(2), to not complete his report.
Rule 15.47 provides:
FAMILY LAW RULES 2004 - RULE 15.47
Single expert witness's fees and expenses
(1) The parties are equally liable to pay a single expert witness's reasonable fees and expenses incurred in preparing a report.
(2) A single expert witness is not required to undertake any work in relation to his or her appointment until the fees and expenses are paid or secured.
In relation to the assertion that Mr R improperly relied upon the letter dated 29 September 2015, it was submitted that there is no evidence that Mr R relied upon the aforementioned letter as establishing or supporting a valuation of the Suburb S property. Rather, the wife submits that the email dated 23 March 2016 from Mr R’s office notes that the husband did not agree with the value of the property and sought a joint response to the valuation. It was further submitted that Mr R later received a copy of the formal valuation of the Suburb S property prepared by Valuations NSW. The wife therefore submitted that this argument is without substance as the relevant communication had no impact on Mr R’s assessment of the valuation of JPL.
The wife did, however, concede that the letter had not been sent to the husband, and provided no explanation other than that the husband was unrepresented at the time.
In relation to the husband’s submission that Mr R engaged in a forensic examination of JPL, the wife submitted that there was no evidence presented to support that assertion. She submitted that the questions asked by Mr R by way of clarification did not amount to a forensic examination. She further submitted that it is within the scope of Mr R’s retainer to query and satisfy himself of the valuations he adopts in his report.
In relation to the husband’s assertion that Mr R had a “secret agreement” with the wife concerning his fees, the wife rejects that assertion. She submits that there is no basis to that submission.
Overall, the wife opposes the husband’s application that Mr R be discharged and submits that for him to be removed as single expert would result in a waste of fees and would require the wife to incur further fees.
The wife, in her written submissions, appears to be agitating an order that a forensic accountant be appointed. This is opposed by the husband. This order was originally sought in the wife’s Application in a Case filed 14 July 2016, wherein her proposed Order 6A stated:
The Applicant wife may appoint an accountant to undertake an investigation of the Company’s [JPL] business and financial affairs, including its financial performance, payments, assets, obligations and its financial records since 1 July 2000 to date and to prepare an expert report in respect of such investigation for use in these proceedings.
On 22 August 2016, Rees J heard the wife’s Application in a Case filed 14 July 2016. Her Honour made the following observations in relation to Order 6A in her judgment handed down on 24 August 2016:
22. Order 6A is not an application. It appears to be a notation of the wife’s intention. There is no application pursuant to Rule 15.49 for the appointment of an adversarial expert. In the present case, where the report of the single expert is not yet available, it is difficult to see how the pre-conditions in Rule 15.49(2) for such an application could be satisfied.
The wife submitted that the anticipated costs of such an accountant are estimated to be between $60,000 to $75,000. The wife submits that the husband’s reluctance to allow a forensic examination of JPL’s affairs needs to be examined. She has not had access to any information nor received any benefit from JPL since approximately 2000, and the husband has retained all benefits of the company since that date.
Determination of the Application to Dismiss the Single Expert
Relevant law
When a party seeks to discharge a single expert that has been appointed, consideration must be had to the relevant parts of the Family Law Rules 2004 (Cth) that deal with the appointment of an adversarial or second expert witness.
Rules 15.49 and 15.52 provides:
15.49 Appointing another expert witness
(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
15.52 Application for permission for expert witness
…
(3) When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:
(a) the purpose of this Part (see rule 15.42);
(b) the impact of the appointment of an expert witness on the costs of the case;
(c) the likelihood of the appointment expediting or delaying the case;
(d) the complexity of the issues in the case;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f) whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the case.
…
The Rules also make provision for circumstances in which a single expert does not comply with their duty to the Court. Rules 15.59 and 15.64 provide as follows:
15.59 Expert witness’s duty to the court
(1) An expert witness has a duty to help the court with matters that are within the expert witness’s knowledge and capability.
(2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b) conduct the expert witness’s functions in a timely way;
(c) avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d) consider all material facts, including those that may detract from the expert witness’s opinion;
(e) tell the court:
(i) if a particular question or issue falls outside the expert witness’s expertise; and
(ii) if the expert witness believes that the report prepared by the expert witness:
(A) is based on incomplete research or inaccurate or incomplete information; or
(B) is incomplete or may be inaccurate, for any reason; and
(f) produce a written report that complies with rules 15.62 and 15.63.
(4) The expert witness’s duty to the court arises when the expert witness:
(a) receives instructions under rule 15.54; or
(b) is informed by a party that the expert witness may be called to give evidence in a case.
(5) An expert witness who changes an opinion after the preparation of a report must give written notice to that effect:
(a) if appointed by a party—to the instructing party; or
(b) if appointed by the court—to the Registry Manager and each party.
(6) A notice under subrule (5) is taken to be part of the expert’s report.
15.64 Consequences of non‑compliance
If an expert witness does not comply with these Rules, the court may:
(a) order the expert witness to attend court;
(b) refuse to allow the expert’s report or any answers to questions to be relied on;
(c) allow the report to be relied on but take the non‑compliance into account when considering the weight to be given to the expert witness’s evidence; and
(d) take the non‑compliance into account when making orders for:
(i) an extension or abridgment of a time limit;
(ii) a stay of the case;
(iii) interest payable on a sum ordered to be paid; or
(iv) costs.
In relation to any apprehended bias alleged against the single expert, the Full Court in Bass v Bass (2008) FLC 93-366has determined that there are two preliminary options open to parties to address concerns of apprehended bias with respect to a single expert. Their Honours (Finn, Warnick and Thackray JJ) framed those two options as follows:
49.First, Division 15.5.6 of Part 15.5 provides a procedure for clarifying matters contained in a report prepared by a single expert witness. It was confirmed before us that that procedure had not so far been employed in this case. While we acknowledge that procedure may only be of limited assistance to the father given the nature of his complaints, we are nevertheless, of the opinion that that procedure ought to have been attempted before the application was made to Steele J, or to this Court.
50.Secondly, and perhaps more significantly, the assertion of bias, be it apprehended or actual, on the part of the single expert, will best be able to be established through cross-examination of the single expert at the trial of the parenting proceedings, as indeed was recognised by Steele J. Following such cross-examination, all or parts of the expert’s report may be rejected or given only limited weight by the trial Judge. It is not particularly unusual, in our combined experience, for trial Judges not to accept, or to only give limited weight to, the opinion of a single expert in a children’s case.
Conclusion
I conclude the application of the husband to discharge the appointment of the single expert is to be dismissed for the following reasons.
In relation to the claim by the husband that the single expert failed to complete the valuation and should therefore be discharged, I find that the Rules and the terms of the retainer signed by the parties by which the single expert agreed to accept the appointment, both provided for the single expert to be able to “stop work” in the event of his fees being unpaid. There is no issue that the husband had failed to pay the last invoice issued by the single expert. The single expert asserts that there is an earlier issued invoice to the husband which also remains outstanding.
In the signed acceptance by the husband of the terms of engagement of the single expert, paragraph 5 is as follows:
5. I acknowledge that you are entitled to refuse to undertake any more work on my behalf in the event of non-payment of accounts.
As a consequence of the above I find that there is no merit to the husband’s case that the single expert should be discharged because he failed to complete the report.
The husband submits that the single expert should be discharged because he “improperly relied on a letter dated 29 September 2015 which was supplied to him by the wife.” The said letter contained an expression of opinion as to the value of the Suburb S property owned by the company, the subject of the valuation report being prepared by the expert.
The evidence relied upon by the wife establishes to my satisfaction that the assertion of the husband is incorrect. The wife refers to an email from the single expert to the parties (dated 23 March 2016; see annexure “G” to the husband’s affidavit sworn 22 July 2016.) pointing out that the document provided by the wife (and the subject of this complaint by the husband) was not an agreed valuation and sought a jointly provided valuation. Such a jointly commissioned and supported valuation was later supplied to the single expert by the parties. Annexure “J” to the affidavit of the husband contains a copy letter from the single expert to the parties (dated 6 April 2016) which notes the receipt of a valuation of the Suburb S property.
I am satisfied that the single expert did not rely upon any asserted value for the Suburb S property which emerged from correspondence received from the wife’s solicitors in letter dated 29 September 2015. To the contrary, in relation to this complaint of the husband, I find the single expert conducted himself entirely as is expected by the Court of a single expert.
The husband complained that the single expert had engaged in a “forensic examination” of the company J Pty Ltd. The husband said that was outside the scope of retainer.
The detail of the complaint appears to be contained in the written submission of the husband at the bottom of page 5 of the written document. The husband asserts that: “in correspondence between the single expert and the parties the single expert sought documents and answers to questions that often have no relevance for the provisions of an Expert Report of the value of the company based on “asset backing” not as provided for in the Letter of Instruction.”
The argument put above is based upon an apparent misunderstanding or incomprehension as to the basis upon which the single expert would value the company. Nowhere in the signed agreement with the single expert is there any statement that the single expert was to value the company only on an asset backing basis. Further no other letter of instruction to the single expert, which is in evidence before me, is there any direction confining the single expert to value the company only on an asset backing basis. It is true that experience of the court is that on some occasions a single expert will conclude that the best method of valuing a particular company is on an “asset backing basis”, however there may be other more appropriate methods of valuing a particular company, such as on a “future maintainable profits” basis.
There is no submission provided by the husband which clarifies how it is said that the single expert was conducting a forensic examination of the company. As such the husband has failed to satisfy me that there is merit in this ground upon which he says the single expert should be discharged.
A further reason the husband says the single expert should be discharged is because he entered into a “secret agreement” with the wife in relation to the payment of his fees.
It is common ground that the wife sought that the single expert accept from her a promise to pay her proportion of his fees, which she had been ordered to pay, and which she contracted to pay when she signed the agreement with the single expert and which in any event the Rules imposed an obligation upon her to pay. In effect the wife sought an indulgence from the single expert to be relieved of paying her share of his invoices issued to her until such time as she had received some funds from the matrimonial property. It is to be recalled that the husband had been ordered to pay her $250,000 or one half of the sale proceeds from the sale of a property.
For my part I can see no aspect of the conduct of this single expert in entering into the arrangement he did with the wife as inappropriate. In any event time has now seen the completion of the sale of the property and the payment to the wife of her half share of the proceeds as the court record shows. The circumstances in which the single expert entered into the agreement in relation to his fees have now changed and probably will no longer be necessary to extend. However, should the wife, or indeed the husband be in a position to require an indulgence from the single expert in relation to the timeliness of the payment of his fees, that will be a matter for each to negotiate with the single expert.
To the extent that it is said by the husband that there is something underhanded about the arrangement being entered into, without informing the husband, the situation is that the information about that arrangement is now in the husband’s possession/knowledge and so there is no question of that being hidden from him.
The last aspect of the husband’s case for discharge of the single expert is an allegation of tardiness on the part of the single expert. This is really an unusual allegation to make given that it is clear that the time taken to complete the report has been contributed to significantly by the action of the husband himself. The correspondence relied upon by the parties and set out in the affidavit of the single expert, cumulatively illustrate a tardiness on the part of the husband in providing documents/information sought by the single expert and also a failure to pay the last of the invoices issued to the husband by the single expert. The latter was a failure on the part of the husband to meet his obligation to pay the invoices issued to him by the single expert in a timely manner.
The conclusion I reach therefore is that the husband has failed to establish his case to the requisite level and therefore requires the Court to dismiss same. The Order of the Court will reflect that determination.
As stated earlier, I have restricted the applications which I was to determine so as to exclude the claim by the single expert for payment of fees by the husband, until after I had determined the question of whether the single expert should be discharged as sought by the husband. Having so determined that application I will make directions for the single expert and the parties to now have determined the single expert’s outstanding fees and any costs application the parties may wish to make arising out of the hearing before me and the determination made herein.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 30 June 2017.
Associate:
Date: 30 June 2017
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