Moretto & Cosola
[2022] FedCFamC1F 433
Federal Circuit and Family Court of Australia
(DIVISION 1)
Moretto & Cosola [2022] FedCFamC1F 433
File number(s): PAC 3192 of 2019 Judgment of: RIETHMULLER J Date of judgment: 17 June 2022 Catchwords: FAMILY LAW – PROPERTY – Evidence – Expert Opinion – Where the respondent seeks leave to adduce evidence from an expert other than the single expert – Where the applicant opposes the application – Where the respondent’s valuer provided a different property value to the single expert – Where the range of values proposed by each expert did not overlap – Leave granted to the respondent to adduce evidence from the other expert Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 15.45
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.02, 7.03, 7.08, 7.25, 7.26, 7.31
Cases cited: Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180; [2002] WASC 174
Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67
Borriello & Borriello (1989) FLC 92-049; [1989] FamCA 48
Bowen & Williams[2015] FamCA 545
Carolan & Lawler [2021] FedCFamC1F 239
Commonwealth v Milledge (1953) 90 CLR 157; [1953] HCA 6
Daniels and Walker [2000] 1 WLR 1382; [2000] EWCA Civ 508
Dovgan & Dovgan [2021] FamCA 306
Goodwin and Goodwin Alpe (1991) FLC 92-192; [1990] FamCA 147
HRBH v IABH [2009] FamCA 1131
Jess & Garvey [2021] FedCFamC1F 189
Keevers & Keevers [2021] FedCFamC1F 338
Neales & Neales [2021] FamCA 52
Neales & Neales (2022) FLC 94-079; [2022] FedCFamC1A 41
Padnall & Padnall (No 3) [2014] FamCA 904
Pitt & Pitt [2009] FamCA 620
Players Pty Ltd v Corporation of City of Adelaide [2001] SASC 369
Salmon and Ors & Salmon [2020] FamCAFC 134
Tsoutsouvas & Tsoutsouvasand Ors [2012] FamCA 521
Verdon & Verdon (2020) 62 Fam LR 573; [2020] FamCA 824
Ingleby, Richard and Anne-Marie Rice, “Professional Insights: When can a party to contested proceedings have leave to adduce evidence from an adversarial expert when a single expert has already been appointed?” (2014) 4 Family Law Review 249
Kari, Penelope, “Opinion: ‘Single experts’ – Guns for hire?” (2007) 29 Bulletin (Law Society of South Australia) 6
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 7 June 2022 Place: Parramatta Solicitor for the Applicant: York Law Family Law Specialists Solicitor for the Respondent: Michael Vassili Barristers & Solicitors ORDERS
PAC 3192 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORETTO
Applicant
AND: MS COSOLA
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
17 JUNE 2022
THE COURT ORDERS THAT:
1.Pursuant to Rule 7. 11 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth), that the respondent be granted leave to adduce valuation evidence from Mr B of C Real Estate and rely upon the report of Mr B dated 21 May 2022 as a valuation of the property located at F Street, Suburb D NSW as at the present date.
2.The time stipulated in Rule 7.31 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) with which the parties to arrange for the expert witness to confer, be varied to 14 days.
3.Costs in relation to the respondent’s Application in a Proceeding filed 30 May 2022 be reserved to trial.
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 Moretto & Cosola has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction
The applicant filed an Initiating Application on 8 July 2019 seeking property settlement orders against the respondent following the breakdown of their de facto relationship in December 2017. On 30 May 2022, the respondent filed an Application in a Proceeding seeking leave to adduce evidence from an expert other than the single expert with respect to the values of two real properties of the parties, which the applicant opposes.
The parties engaged a single expert pursuant to r 15.45 of the Family Law Rules 2004 (Cth) (the former provision equivalent to r 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”)). The parties engaged a valuer as the single expert who has undertaken a number of valuations of the two relevant properties (one owned by each of the parties) for the purpose of providing evidence of the value of each property at present, and upon dates relevant to the respective claims of the parties as to the commencement of their relationship.
The respondent is dissatisfied with the opinion of the single expert and has engaged another expert to provide a report, which values the applicant’s property at a considerably higher value than that assessed by the single expert.
The purpose of the rules relating to expert evidence are expressed in r 7.02 of the Rules as follows:
7.02 Purpose of Part 7.1
The purpose of this Part is as follows:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a proceeding;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness;
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if that is necessary in the interests of justice.
Where the parties have engaged a single expert, r 7.08 of the Rules prevents the parties from adducing evidence from another expert, save for the limited circumstances set out within, which provides:
7.08Appointing 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 the contrary opinion is or may be necessary for determining the issue; or
(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.
The purpose of r 7.08 of the Rules has been described as avoiding a “battle of experts” (Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 at [26]), which must be understood as referring to the disproportionate costs caused by allowing evidence from multiple experts in cases where the differences between the expert opinions do not reasonably justify those costs (direct and indirect). Importantly, as was observed in Tsoutsouvas, those costs may also include the party who accepts the opinion of the single expert seeking to have another expert give evidence so that they have an expert not constrained by the terms of the single expert rules (an “ironic consequence” of the rules noted by Richard Ingleby and Anne-Marie Rice, “Professional Insights: When can a party to contested proceedings have leave to adduce evidence from an adversarial expert when a single expert has already been appointed?” (2014) 4 Family Law Review 249, at 253). However, the rules will still have limited the case to three experts; far fewer than the six experts called in Commonwealth v Milledge (1953) 90 CLR 157 at 160. Another possible irony is that if the application of the rule is too severe in cases where there are genuine disputes about the expert opinion, the interlocutory disputes become hard fought, further increasing costs and distracting attention from the real issue in dispute.
The rules contained in r 7.08 of the Rules cannot be applied in a way that results in a significant valuation issue being largely foreclosed (at least on a practical level) from effective challenge in the litigation, as that would compromise the interests of justice and therefore go beyond the purpose of the rules: see r 7.02(c) of the Rules and the poignant example of a terrible injustice caused by the reliance upon a single expert discussed in Penelope Kari, “Opinion: ‘Single experts’ – Guns for hire?” (2007) 29 Bulletin (Law Society of South Australia) 6. Similarly, r 7.08 of the Rules is not to simply relieve judges of the burden of making findings as between competing experts where there is a real issue as to valuation. Rather, it is to ensure that judicial time (and thus public resources) are not wasted on protected hearings involving multiple experts where the nature of the dispute is disproportionate to the costs involved.
To the extent that it is necessary to carefully marshal the competing expert opinions, the rules provide for a compulsory conference of experts before trial (r 7.31 of the Rules) where:
7.31 Conference of expert witnesses
…
(3) 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 reason for disagreement on any issue; and
(d) identify what action (if any) may be taken to resolve any outstanding issues; and
(e) prepare a joint statement specifying the matters referred to in paragraphs (a) to (d) and deliver a copy of the statement to each party.
(4) If the expert witnesses reach agreement on an issue, the agreement does not bind the parties unless the parties expressly agree to be bound by it.
(5) The joint statement may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.
Such a balance was identified in Daniels and Walker [2000] 1 WLR 1382, where Lord Woolf MR placed weight upon whether the amount involved was disproportionate to the likely costs of multiple experts (at [29] and [31]). This approach, albeit under different rules, reflected the purpose of the rules in ensuring that there is, on a practical level, real proportionality between the costs of expert evidence (directly, and in increasing the costs of the litigation more generally) compared to the amounts involved in cases involving valuation evidence.
Concerns as to potential injustice if parties are confined to a single expert witness, where there were considerable differences in the amounts in relevant valuations, were the basis of decisions permitting evidence from another expert in Pitt & Pitt [2009] FamCA 620, Verdon & Verdon (2020) 62 Fam LR 573, Jess & Garvey [2021] FedCFamC1F 189, and Carolan & Lawler [2021] FedCFamC1F 239. Although, in other decisions, even large differences in the valuation amounts have not been sufficient, on their own, to persuade the court to permit evidence from another expert: see, for example, Keevers & Keevers [2021] FedCFamC1F 338; and Padnall & Padnall (No 3) [2014] FamCA 904. However, as the Full Court noted in Neales & Neales [2022] FedCFamC1A 41 that it is erroneous to refuse leave when focusing only upon the difference in values: at [42]. Whilst these cases appear to indicate a diversity of judicial opinion, they may be better explained by reference to the reasons of Watts J in HRBH &IABH [2009] FamCA 1131, where his Honour noted the potential practical difficulty that may arise where the single expert’s evidence on an important factor is so undermined by cross-examination that there would then be “a vacuum in the evidence”: at [8].
An evidential “vacuum” is to be avoided, if possible, particularly in valuation cases where the effective alternative of forcing a sale, even if it is open to the court, is a far from desirable option if one party wishes to retain a property. However, methods of addressing this potential difficulty are provided for in the rules. The rules enable a party to put questions to the single expert in order to clarify the opinion given, provided the questions are within strict parameters and time frames, expressed in r 7.26 of the Rules as follows:
7.26 Questions to single expert witness
(1) A party seeking to clarify the report of a single expert witness may ask questions of the single expert witness under this rule:
(a) within 7 days after a conference (if any) is held under rule 7.25; or
(b) if no conference is held under that rule—within 21 days after the party received the single expert witness’s report.
(2) The questions must:
(a) be in writing and be put once only; and
(b) be only for the purpose of clarifying the single expert witness’s report; and
(c) not be vexatious or oppressive, or require the single expert witness to undertake an unreasonable amount of work to answer.
(3) The party must give a copy of any questions to each other party.
It is also open to the parties to agree to arrange a conference between the single expert and another expert, and importantly for the court to make such an order: see r 7.25(7) of the Rules.
Not surprisingly, it has been held that these processes should be utilised prior to making an application to the court: Salmon and Ors & Salmon [2020] FamCAFC 134 at [40]. When framing questions or preparing for the cross-examination of the single expert there is nothing to preclude a party from relying upon the assistance of another expert: Salmon at [40]. Although, the costs of such processes is one of the reasons arguments have been put against single expert rules: see Penelope Kari, “Opinion: ‘Single experts’ – Guns for hire?” (2007) 29 Bulletin (Law Society of South Australia) 6.
Ultimately, a trial judge is not bound to accept the evidence of a single expert (Salmon at [41]), nor even any particular expert where there is more than one expert who gives evidence: see Borriello & Borriello (1989) FLC 92-049 at 77,558 and Goodwin and Goodwin Alpe (1991) FLC 92-192 at 78,275. Whilst a judge cannot simply average the values of differing experts (Commonwealth v Milledge (1953) 90 CLR 157 at 160–161; and Borriello at 77,558), a judge can nonetheless come to a figure that is different from that put forward by the experts, if the evidence is properly approached: see also Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180 at [76]. However, the judge cannot become a third valuer: Players Pty Ltd v Corporation of City of Adelaide [2001] SASC 369 at [81]. In this context, the discussion of Kent J in Salmon (at [43]–[46]) as to the findings that may be open with respect to capitalisation rates and discounts for minority shareholdings is instructive.
In cases where the valuation is based upon the comparable sales method this distinction can be a fine one, however it must be recalled that the expertise of the valuer (which goes beyond a non-expert or real estate agent providing an appraisal) is in making a nuanced assessment of which sales are truly comparable and then forming a view as to a valuation after weighing the different comparable sale prices. Where the values for which each of the parties contend fall within the ambit of a broad range that the single expert identifies, cross-examination would ordinarily be a sufficient tool to avoid injustice. Where the value contended by the party challenging the single expert is outside of the range identified by the single expert (after making use of the right to send questions to the expert and a conference between experts) the interests of justice would tend to weigh in favour of allowing evidence from the other expert, provided that such evidence is not obviously flawed and the difference involved is not out of proportion to the likely additional costs of permitting the evidence to be adduced.
The expert evidence in the present proceedings
The single expert in these proceedings was appointed in accordance with orders of a registrar made on 9 September 2019. The first report of the single expert was provided in March 2020. In December 2020 the respondent’s solicitors sought an updated valuation from the single expert, and for valuations on dates that may be found to be the date of the commencement of the relationship of the parties. There was dispute between the parties as to whether the retrospective valuations could be requested however, following discussions at an interlocutory hearing before Foster J, the respondent withdrew this part of her request. Updated valuations were obtained in November 2021 for a mediation on 14 February 2022, however the matter did not resolve at the mediation.
The respondent renewed her application for leave to call another expert at a directions hearing before the Chief Justice on 23 February 2022. On that same day, orders were made providing that:
4. Within 7 days of these orders, the Respondent write to the single expert, putting the Applicant on notice, specifying the precise concerns the Respondent has regarding the valuation, including providing an indication of the appraisals that have been obtained and any other comparable sales that may give rise to a concern regarding the accuracy or currency of the single expert valuation.
5. The single expert shall provide a response to any of the material provided by the parties, and an indication as to whether, upon consideration of the parties’ material, the single expert wishes to update or alter the valuation provided as at 29 November 2021, and the single expert shall provide an updated valuation as at the date of the new report, if there is a difference.
6. The single expert shall, at the cost of the Respondent, provide a valuation of both properties as at 8 July 2022.
The respondent then discontinued her application for leave to adduce evidence from another valuer.
The questions put to the single expert by the respondent’s solicitors were in the context of a long letter, much of which provided additional facts to the single expert the first for three pages (together with considerable argument), before setting out a number of actual questions about the valuation. The single expert provided his specific responses to each of the questions from the respondent on 14 March 2022, and affirmed the opinion in his email of 28 February 2022 inter alia that:
It is fair judgement and call to say, that the comparables sales data we used to prepare the valuation report for November 2021, the comparables above now show a higher value.
To me in fairness, $4 million to $4.5 million appears too high based on the above comparables.
… the [applicant’s property] value now seems to be in the range of $2.65 Million to $3.35 Million, say $3.0 Million as a fair market value, between the two.
On 7 April 2022, the applicant’s solicitors then wrote to the single expert suggesting that he had valued the respondent’s property on the basis of having only three bedrooms rather than four and, with respect to the applicant’s property saying:
In relation to the valuation of the [applicant’s] [Suburb D] property:-
1. Are you aware that the property at [E Street, Suburb D] sold recently for $3.51 million. The [E Street] property is a five bedroom, four bathroom property which is a far superior property to the subject property.
2. Further, noting that the subject has substantial damage including mould to the walls, waterproofing has been compromised, cracks in the wall, all bathrooms need renovations and generally the subject property has not been renovated for over 25 years. In light of the above matters, are you in a position to review the valuation of the [Suburb D] property.
(Letter of York Law Family Law Specialists dated 7 April 2022)
On 21 April 2022 the single expert responded to the applicant’s solicitor’s letter, acknowledging that the respondent’s property is a four bedroom property (although this is a fact disputed by the respondent). With respect to the condition of the applicant’s property, the single expert referred to the solicitors to the references to cracks in his earlier reports. The single expert was not dismissive of the potential issue and asked if there is structural damage and advised the solicitors that they may provide a report as to structural damage in which case this may affect the valuation.
On 21 May 2022 the respondent’s expert provided a critique of the single expert’s report of 2 March 2022, disputing the value ascribed by the single expert of $3 million, and expressing the opinion that the value of the property was $3.75 million. In support of the higher figure, the respondent’s expert said:
[The single expert has] analysed ten sales of considered comparable properties. Of the nine sales, the minimum sale was $3,560,000. Only one sale achieved $2,450,000 being below the above. Which has considerable allotment constraints in terms of access and allotment shape relative to the other sales used.
…
It is my considered opinion that the [single expert] valuation report (updated) has not divulged more deeply into the sales transactions to meaningfully draw the reasoning as to why the predominance of sales of $3,500,000 and above. Hence the lower valuation of $3,000,000.
(Report in Reply of [Mr B] dated 21 May 2022)
The obvious acrimony between the parties with respect to the expert evidence in this case was further heightened by the conduct of the solicitors, each technically breaching the rule prohibiting unilateral contact with the expert. The applicant’s solicitor drafted an affidavit for the single expert to sign, however forwarded it to the single expert without agreement nor even copying in the respondent’s solicitor. Whilst this appears innocuous, given that it is merely a formal affidavit annexing reports and letters, the affidavit omitted various reports relevant to the proceedings. The solicitor for the respondent spoke to the single expert by telephone without the agreement of the solicitor for the applicant. The contact was with respect to arrangements for a valuation in a different matter and the mention of this case incidental (the single expert has written to the parties setting out the terms of the conversation). In the context of this case, the comments by the Full Court in Bass & Bass (2008) FLC 93-366 that “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” (at [50]) are apt. I am not persuaded that these allegations bear on the question of determining whether to permit the respondent to adduce evidence from another expert.
Is there a substantial body of opinion contrary to the opinion given by the single expert?
The respondent argued that the case fell within the ambit of r 7.08(2)(a), which is set out above. The phrase “substantial body of opinion” refers to more than a mere difference in opinion between experts: Salmon and Ors & Salmon [2020] FamCAFC 134. Implicit in the phrase “substantial body of opinion” is the proposition that many other experts hold the relevant opinion. For example, in Salmon, the Full Court noted that if “a contrary opinion is founded upon identified and accepted methodology recognised within the field, or some identified and recognised field of expertise different to that founding the single expert opinion, then the requirement of ‘a substantial body of opinion’ will be fulfilled” (at [35]).
In the present proceedings, both experts applied the same valuation methodologies (having regard to comparable sales) to reach their opinions. There is no substantial body of opinion that separates the views of each expert, rather a dispute as to the application of accepted principles in the particular case. The respondent’s argument that the circumstances fall within r 7.08(2)(a) of the Rules must be rejected.
Is there ‘another special reason’ in this case?
The respondent’s alternative argument relied upon there being a “special reason” within the meaning of r 7.08(2)(c) of the Rules for permitting the respondent to adduce evidence from another expert. In reading this sub rule it is important to have regard to the purpose of the relevant rules (as identified above in r 7.08 of the Rules). It is also helpful to note that the use of the word “another” in this sub rule indicates that the drafters considered the matters in sub rules (a) and (b) to be “special reasons”: see Bowen & Williams[2015] FamCA 545 at [19]–[22]. Both sub rules (a) and (b) identify matters upon which the court could not make findings without evidence, and where such evidence is not likely to come from cross-examination of the single expert alone.
In the present case, as with many of the applications pursuant to this rule concerning valuations of real estate, the underlying reason that one party wishes to rely on evidence from another expert is because of a dispute as to the opinion of the single expert when applying an accepted methodology as to whether other properties (the sale prices of which may form the basis of the valuation) are comparable to the property being valued.
The starting position must be as outlined in Bowen that the rules require “something more than merely the existence of a different or contrary opinion advanced by the other expert”: at [20]. In Bowen, Tree J found that “to the extent that there is divergence between the two opinions, that is not sufficient to establish ‘another special reason for adducing evidence from’” the adversarial expert: at [31]. In the context of valuation evidence, Harper J said in Dovgan & Dovgan [2021] FamCA 306 at [175], “competing valuations of real property are frequent, if not routine” and that a “different or contrary opinion based on the same methodology would not constitute ‘another special reason’”. However, in cases concerning valuations where the amounts involved are significant (in the present case a difference of $750,000) this naturally gives rise to the question of whether the amount of the difference between the expert opinions can be “another special reason” within the meaning of the rule, however a more nuanced approach is required than merely identifying a difference in opinions, or the rule would be denied efficacy.
In the present proceedings the differences in the expert opinions flows not only from differences in opinion as to which of a number of properties in the area that have recently sold are properties comparable to the property in question, but the weight to be placed upon that sales information. Whether other properties are capable of being ‘comparable’ to the subject property is ultimately a question which the court may have to determine. This difference may be adequately dealt with in cross-examination of the single expert, who has already had the list of additional sales that are alleged to be comparable drawn to his attention. However, if the single expert’s list of comparable sales is not accepted by the court as a result of the cross-examination and the single expert denies that the alternative sales are comparable or that weight may be placed upon those sales, the question remains as to how the court is to strike a value for the property. Striking a value by reference to comparable sales is not so simple as making a finding that can be mathematically factored into the methodology of the expert, such as adopting a multiplier or minority shareholding discount rate in a business valuation case (see, for example, the discussion in Salmon), or making a finding of fact as to the actual revenue of a business, etcetera (see [15] above).
Whether cross-examination may be a sufficient tool to avoid injustice in this case depends upon whether it would be open to the court to make a finding as to the value of the property as contended for by the respondent if the single expert is successfully cross-examined to sufficiently weaken his evidence. As the value contented by the respondent is well outside the range ascribed by the single expert, after relevant information sharing and questions, it is difficult to avoid the conclusion that there is a real risk of an evidentiary “vacuum” arising in this case if the respondent’s contentions as to value are correct. Notably, this is not a case where the evidence of the respondent’s expert could be said to be obviously unrealistic or unpersuasive, rather a case where there appears to be a genuine dispute between the experts.
I am persuaded that the respondent has established a “special reason” in the context of this case, namely that there is a real risk that she will be unable to effectively put her case as to the value of the applicant’s property if she is limited to cross-examination of the single expert, in circumstances where the respondent’s case on this point is reasonably arguable and involves an amount so great that the additional litigation costs are not disproportionate.
Should the discretion to permit evidence to be adduced from another expert be exercised?
In considering whether the exercise the discretion to permit the respondent to adduce evidence from an expert other than the single expert I take into account the reasons for which r 7.08(2)(c) of the Rules has been satisfied. I note that there has not been a conference pursuant to r 7.25 of the Rules, however, there has been considerable exchange of views as facilitated by the Chief Justice’s orders of 23 February 2022.
The potential increase in the expense of the litigation (both directly and indirectly) of permitting another expert with respect to valuation of residential property will be very modest in the context of a case involving parties with total assets of over $3 million. The difference in the valuation amounts of around $750,000 far outweighs the likely additional expenses of the litigation of permitting evidence from another valuer.
The expert evidence concerns valuations in a purely financial case where no further involvement of the parties is required, nor are any delays in the proceeds likely to be caused by permitting the evidence to be adduced, leading to the view that there are no significant factors for which the potential salve of costs would not be sufficient. The costs caused by the additional evidence can also be the subject of an application for a costs order pursuant to s 117 of the Family Law Act 1975 (Cth), and any such costs order will be able to be recovered as each party, on the facts of this case, will inevitably retain sufficient property to meet such a costs order.
Finally, I have regard to the potential impact upon other litigants where additional evidence may take up the time of the court and delay hearings in other cases, and whether the extent of the valuation dispute justifies such additional public expense: see generally Tsoutsouvas at [17]–[18]. I am not persuaded that the additional time that would be involved in the hearing in this case will be significant, nor that it could be said to be of little utility in the context of this case.
I am therefore persuaded that the respondent has established “another special reason”, as that term is used in the relevant rule, in the context of the facts and circumstances of this case. I am further satisfied that I should exercise the discretion to permit her to adduce evidence from the expert she has engaged. As the trial date is close, the time limits under r 7.31 of the Rules are now impractical. Subject to argument to the contrary by the parties, I would vary the time in r 7.31 of the Rules to 14 days rather than 28 days.
I reserve the question as to the costs of this application to the trial.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 17 June 2022
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