Moretto & Cosola

Case [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…

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AGLC
Moretto & Cosola [2022] FedCFamC1F 433
Case
[2022] FedCFamC1F 433
Decision Date

CaseChat Overview and Summary

Moretto & Cosola was a proceeding in the Supreme Court of Victoria concerning a dispute between property owners regarding the valuation of their respective properties. The court was tasked with determining the value of two properties, where the parties disagreed on the appropriate method and expert to be relied upon in determining the value. The legal issues at hand were primarily concerned with the admissibility of expert evidence, particularly whether the respondent was entitled to call her own expert witness to provide a valuation of the properties, in addition to the single expert appointed by the court. The court had to consider the principles governing the admissibility of expert evidence, as well as the specific circumstances of the case, such as the range of values proposed by the single expert and the costs involved in permitting the respondent's expert to give evidence.

The court determined that the respondent was not entitled to call her own expert witness, as the values proposed by the parties fell within the range identified by the single expert. The court found that the expertise of the valuer was in making a nuanced assessment of comparable sales and forming a view as to a valuation after weighing the different comparable sale prices. The court emphasised that cross-examination would ordinarily be a sufficient tool to avoid injustice where the values for which each of the parties contend fall within the ambit of a broad range identified by the single expert. Furthermore, the court considered the costs involved in permitting the respondent's expert to give evidence and found that they were not justified given the narrow range of values proposed by the parties.

In light of the above, the court dismissed the respondent's application for leave to call another expert witness. The court ordered that 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. The court also ordered the single expert to 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. The court further ordered that the single expert shall, at the cost of the respondent, provide a valuation of both properties as at 8 July 2022.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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