Neales & Neales
[2022] FedCFamC1A 41
•28 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Neales & Neales [2022] FedCFamC1A 41
Appeal from: Neales & Neales [2021] FamCA 525 Appeal number(s): EAA 90 of 2021 File number(s): CAC 959 of 2019 Judgment of: ALDRIDGE, TREE & SCHONELL JJ Date of judgment: 28 March 2022 Catchwords: FAMILY LAW – APPEAL – Expert evidence – Appeal from orders dismissing the husband’s application to discharge the singe expert or in the alternative grant leave for an adversarial expert – Where there was a difference of about $11 million in valuations undertaken by the two experts – Where the husband sought to challenge the primary judge’s findings through contentions that the primary judge erred in failing to give sufficient reasons and in failing to properly consider the arguments advanced – Adequacy of reasons – Where the primary judge’s reasons are adequate – Where the husband asserted that the primary judge erred in applying r 15.49(2)(c) of the Family Law Rules 2004 (Cth) through adopting a “tick-and-flick” approach – Where the primary judge fell into error in confining the issue to differences in value as opposed to considering all the relevant matters in aggregate – Where the proposed adversarial expert did not have a substantial body of opinion – Where the single expert did not have a “closed mind” – Where the difference in value by itself was not sufficient for an adversarial expert – Where the primary judge fell into error by not considering the difference in value together with the other relevant matters such as the alternative methodologies used – Appeal allowed – Costs certificates issued to both parties. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Family Law Rules 2004 (Cth) r 15.49
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Georgeson and Georgeson (1995) FLC 92-618; [1995] FamCA 62
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Salmonand Ors & Salmon [2020] FamCAFC 134
Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521
Number of paragraphs: 65 Date of hearing: 3 March 2022 Place: Sydney Counsel for the Appellant: Ms Gillies SC with Ms Seric Solicitor for the Appellant: Macphillamy’s Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
EAA 90 of 2021
CAC 959 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NEALES
Appellant
AND: MS NEALES
Respondent
ORDER MADE BY:
ALDRIDGE, TREE & SCHONELL JJ
DATE OF ORDER:
28 MARCH 2022
THE COURT ORDERS THAT:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The orders of the primary judge made on 21 July 2021 are set aside.
4.The appellant husband (“the husband”) is granted leave to adduce and rely upon the evidence of Mr D as another expert.
5.The husband is granted a costs certificate pursuant to the provision of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment in respect of the costs incurred by him in relation to the appeal.
6.The respondent wife (“the wife”) is granted a costs certificate pursuant to the provision of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment in respect of the costs incurred by her in relation to the appeal.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Neales & Neales has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & SCHONELL JJ:
By Notice of Appeal filed 17 August 2021, the appellant husband (“the husband”) seeks leave to appeal, and if granted, appeals from orders made by the primary judge dismissing an application that sought to discharge the single expert, or in the alternative, leave to appoint another expert and upon granting of leave, the experts to confer.
For reasons which follow, leave to appeal will be granted, the appeal will be allowed, and leave given to the husband to rely upon another expert valuer.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The parties married in June 1981 and separated in April 2016. They have two adult children.
The asset pool includes the husband’s one-third shareholding in three entities that hold commercial properties in and around City X. Almost all of the properties are subject to established leases, including options to renew.
On 24 May 2019, the husband commenced the proceedings.
In late February 2020, the parties jointly instructed Mr B as a single expert to value the properties on the basis of: “Market Value (As Is) presuming a sale of the 100% Crown Leasehold interest/s subject to the existing lease agreements, or with vacant possession, as applicable” (Tender Bundle to the husband’s affidavit filed 31 March 2021, Annexure C).
Mr B valued the properties as at July 2020 between $33.835 million and $34.190 million.
In October and November 2020, the husband submitted various questions seeking clarification of matters pursuant to the Family Law Rules 2004 (Cth) (“the old Rules”). Mr B replied to those questions.
In March 2021, the husband instructed Mr D to comment on Mr B’s valuations and provide his opinion as to the value of the properties.
Mr D valued the properties in March 2021 at $22.465 million.
On 31 March 2021, the husband filed an Application in a Case seeking to discharge Mr B as the single expert, leave to rely upon Mr D as another expert, and a conference of the experts.
The hearing took place on 24 June 2021, and judgment was delivered on 21 July 2021 dismissing the application.
LEAVE TO APPEAL AND GROUNDS OF APPEAL
The facts relied upon by the husband that are said to ground leave were asserted errors in failing to give sufficient reasons and failing to properly consider the arguments advanced. This was said to give rise to a substantial injustice and a denial of natural justice.
The path to success on appeal from an interlocutory decision requires the husband to establish to the satisfaction of this Court that the primary judge’s determination was attended by “sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong” (Medlow & Medlow (2016) FLC 93-692 at [57]).
The determination of the primary judge is presumed to be correct unless it can be established that the discretion reposed in the primary judge miscarried in the terms articulated in House v The King (1936) 55 CLR 499 at 505.
Whilst there were only four grounds of appeal, they each contained numerous sub-parts, which in many respects overlapped and were somewhat repetitive. The husband’s argument on the appeal did not address the grounds seriatim, but was in the main, responsive to questions raised by this Court. Senior counsel for the respondent wife (“the wife”) responded to matters raised by the husband and the Court. Each party relied upon and did not resile from their Summary of Argument.
We are of the view that there is merit to Ground 2.2 and to the second limb of Ground 3.4, as set out below. We are satisfied that the husband would suffer a substantial injustice if leave to appeal were not granted because there are different methodologies that have resulted in a substantial difference in value, which has the potential to more adversely impact the husband than the wife. As the appeal will succeed, we will briefly address the other grounds.
Ground 1
1. That the Primary Judge erred in failing to deliver adequate reasons for determining to dismiss the applicant/appellant’s application to:
1.1. discharge the single expert; and in the event of not discharging the expert;
1.2. for leave to adduce and rely upon evidence of another expert witness, [Mr D]; and consequently ordering a conference to occur between the single expert and [Mr D] pursuant to rule 15.69.
(As per the original)
In DL v The Queen (2018) 266 CLR 1, the High Court observed:
130.… although the extent of reasons may depend on the circumstances of the case, reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.
(Footnote omitted)
The primary judge’s reasons complied with those requirements. Particularly, the primary judge identified the submissions of the husband that the single expert had not valued the properties based on the in-place leases, that he had ignored the leases, and that he had proceeded to value the properties based on market rent. In so doing, it was contended that the single expert acted contrary to his instructions.
The primary judge identified that the husband’s submission mischaracterised the single expert’s approach. The primary judge found that the single expert did not ignore the leases or the income derived from the leases. His Honour’s finding was that the leases were taken into account in the context of market rent subject to various adjustments.
The husband also contended that the expert did not disclose his process of reasoning, and in particular, that he failed to explain the calculation of the Net Present Value of Rental Reversion. The primary judge identified that the single expert was asked various questions related to such calculation and that he responded to them observing in reference to the answers that, “[i]t may be observed that Mr B explained and provided definitions of the inputs sought” (at [32]). The primary judge recorded that there was a complaint that the single expert had not referenced the actual mathematical formula, but observed in response that the questions did not call for the formula.
It was submitted that the single expert had adopted a closed mind. The primary judge concluded:
35. The husband also sought the exclusion of Mr B’s evidence on the basis that he has demonstrated a closed mind by virtue of his answers to the questions that he has been asked. Firstly, such a closed mind is not apparent, given his at face value responsiveness to that which he was asked. Secondly, if reliance is placed upon a failure to amend an opinion, such does not of itself indicate a closed mind. Such may simply result from the correctness of the opinion proffered in the first place.
The primary judge was satisfied that the expert had not closed his mind. The primary judge found that a case had not been established to discharge the single expert.
The husband also contended that the difference of approximately $11 million in value between the single expert and the husband’s expert, justified in part, the appointment of another expert, and that the husband’s expert was in possession of a substantial body of opinion contrary to that of the single expert. The primary judge identified the relevant Rules (as they were at the time) and made reference to Kent J’s decision in Tsoutsouvas & Tsoutsouvas and Ors [2012] FamCA 521 at [26], where his Honour observed:
44. …
In any case where a single expert has been appointed, allowing another party to tender evidence from another expert on the same issues creates an imbalance. That is, only one party may have what may be described as an adversarial expert, whilst the other party has only the evidence of the single expert who has acted within the constraints, in terms of instructions, as provided for in the Rules. The further possibility is the other party seeking to have their own expert to redress that perceived imbalance, undermining the original purpose of appointing a single expert; that is, to avoid a “battle of the experts”.
(Footnote omitted)
The primary judge concluded that contrary to the submissions of the husband, there was not a substantial body of contrary opinion, but rather an alternate opinion. The primary judge identified:
49.Here what is presented is an alternate opinion, by a person holding a relevant expertise, Mr D. In relation to the controversial area, being the significance of the leases to which the properties are subject, Mr D opines that the approach to those matters offered by him is preferable.
50.… What he proffered was an alternate approach that he opined was superior. That is insufficient to meet the requirement of r 15.49(2)(a). What has been offered is a merely contrary opinion. Under that circumstance, despite the significantly different outcome reached by the experts, the rule does not authorise the reception of the additional expert evidence.
The husband also submitted that there were matters known only to the other expert that were not known to the single expert. The primary judge rejected this as a basis for the appointment of another expert in part as the reason was as a result of the failure by the husband to provide information to the single expert.
Lastly, it was contended that there existed a special reason due to the difference in value between the two experts. The primary judge observed that to permit another expert just because of a divergence in value, even if substantial, was inconsistent with the purpose of the old Rules and having so concluded dismissed the husband’s application.
The primary judge carefully considered the arguments put forward by the husband and gave reasons for his determination. The path of reasoning is revealed.
Ground 1.1 as to error due to an inadequacy of reasons is not established.
Ground 1.2 as expanded through the Summary of Argument asserted that the primary judge failed to give reasons as to how the husband would be able to challenge the expert evidence other than through cross-examination, and failed to deal with the procedural difficulties the husband would face in the absence of an adversarial expert.
This contention presupposes that a trial judge accepts without question, in the absence of other expert evidence, the opinion of a single expert. As the Full Court in Georgeson and Georgeson (1995) FLC 92-618 reminds at 82,218–82,219:
Expert evidence may be adduced as to the proper method to be adopted, in the circumstances of a particular case, to assist the Court in forming an independent judgment on the issue of valuation by the application of the appropriate principles. Whilst an expert may thus suggest an approach as being appropriate in a particular case, before accepting it, the Court must come to its own conclusions as to whether that approach is appropriate in the circumstances.
The Court informs its conclusion as a consequence in part of the testing of the evidence. Such is the art of advocacy.
There is no merit to Ground 1.2.
Whilst not the subject of the specific ground of appeal, the Summary of Argument contented that an adjournment may arise, and that the case may go part heard or a more lengthy trial may arise by a failure to either discharge the expert or permit another expert, or a combination of both. The argument had the air of premature catastrophizing. No trial date has been set, the existing single expert evidence will in all likelihood need to be updated (the valuation date being July 2020), and further questions may be administered. It cannot confidently be asserted at this stage that any of these harbinger events may happen.
No error has been established in Ground 1.
Ground 2
2. That to the extent, if any, that the Court so determined, the Primary Judge erred in failing:
2.1. to find that that the single expert contrary to the written instructions of the parties, and without an application by the single expert pursuant to rule 15.60, disregarded and acted outside his express retainer [paragraphs 16-18 Judgment]; and /or
2.2. to materially consider and evaluate, in applying rule 15.49(2)(c), the aggregate of each of the matters identified in support of the application for leave to adduce the evidence of [Mr D], such that he adopted a “tick and flick” approach individually to each separate matter contended by the applicant/appellant; and/or
2.3. to determine that the opinion of the single expert was a theoretical opinion, and that the opinion of the proposed expert of the applicant/appellant was an opinion grounded in reality
(As per the original)
Ground 2.1 contended error on the part of the single expert in not following instructions, and in acting outside his retainer. It further contended that the single expert effectively ignored the existing leases in reaching his conclusion as to value.
It was not in issue that the single expert was instructed to determine market value. As part of that process, he had regard to the existing leases. He did not ignore them. The primary judge recorded:
20.Where there was a lease in place, it was taken into account, but considered in the context of market rent, with appropriate adjustments being made as between the market rent and the leased rent in order to arrive at a value for the commercial property. It cannot be said that he departed from his instructions in this respect, and so this ground falls away.
A further difficulty with the husband’s criticism of the single expert is that the other expert he retained did not opine that the single expert was wrong in adopting a market rental. The husband’s expert in commenting on the approach adopted by the single expert remarked:
If it is considered necessary to adjust for a demonstrably below market rental return, noting my comments further in this critique, this can be made by discounting the yield rate downwards on an actual return. This to my view is a more suitable valuation approach, rather than introducing more variables to the exercise…
(Tender Bundle to Mr D’s affidavit filed 31 March 2021, Annexure 3, p.4).
This passage amply demonstrates that, as between the experts, they each adopted what was an alternate methodology. We are not satisfied that the primary judge erred in finding that the single expert acted in accordance with his instructions in determining market value by having regard to market rent.
Ground 2.2 contended error by the primary judge in applying r 15.49(2)(c) of the old Rules in not considering in aggregate, each of the husband’s contentions, but rather adopting a “tick-and-flick” approach. In form, the ground, being as gracious as we can, should have been drafted with more care. It was both inappropriate and incorrect to describe the primary judge’s approach as a “tick-and-flick”. There is, however, force to the argument that in considering “another special reason”, the primary judge did not consider overall the thrust of the husband’s case for the appointment of another expert. As much is made plain in the husband’s Summary of Argument:
24. As set out in the case outline document it was the cumulative aspect of the complaints together with the differences between the two valuers that was sought to underpin the argument that there was a special reason for being able to rely on the reports of [Mr D].
25. In the judgement his Honour dealt with each matter raised singularly, but did not deal with the issues cumulatively when determining the application for [Mr D] to be an adversarial expert pursuant to rule 15.49(2)(c). When discussing rule 15.49(2)(c) his Honour only referred to the difference in valuation, a reference to the quantum, and not to the other complaints raised by the Appellant…
(Husband’s Summary of Argument filed 16 November 2021, paragraphs 24–25)
The husband argued before us that the following matters, which taken collectively, satisfied as another special reason:
(1)that the single expert and Mr D adopted alternative methodologies as found by the primary judge at [50];
(2)that matters were known to Mr D that were not known to the single expert. As the primary judge noted:
51.… it appears that there are matters relating to the lease status of some of the underlying properties the subject of the valuation. This was a matter, it appears, peculiarly in the knowledge of the husband, and within his ability to correct. While the additional information may technically bring the application within the rule, it is also a matter that can be dealt with by means of an application for directions pursuant to r 15.67A…
Singularly there may be force to the primary judge’s conclusions. However, in aggregate, we are of the view that it strengthens the husband’s argument;
(3)that whilst recognising that the significant difference in value of over $11 million does not of itself warrant another expert, if it arises as a result of a difference in methodology and information, it warrants consideration as another special reason; and
(4)in circumstances where the husband is a minority shareholder in the entities that hold the real estate, and given that the wife seeks a cash payment, it is the husband who will be left with the consequences of the findings as to value, such that given the substantial difference between the two positions, it constituted another special reason for the appointment of another expert.
We agree with the husband’s submission in relation to Ground 2.2. We are satisfied that the primary judge did not consider these matters in aggregate in addressing r 15.49(2)(c) of the old Rules, but rather confined his consideration to the issue of differences in value. In doing so, the primary judge fell into error.
Ground 2.3 contended that the single expert’s valuation was theoretical and not grounded in reality. The submission built upon the earlier contention (now established as erroneous) that the single expert had not valued in accordance with the leases, and so it went his valuation based on market rentals must be theoretical. The submission fails to acknowledge the approach of the single expert as identified by the primary judge in his reasons.
We find no error in Ground 2.3.
Ground 3
3. That the Primary Judge erred in finding:
3.1. that the methodology as to valuation of the 13 pieces of real property as opined by the single expert and the methodology as to valuation as opined by the proposed expert of the applicant/appellant constituted a substantial body of opinion as identified in rule15.49(2)(a) [paragraph 50 Judgment]; and that [Mr D] did not identify that the methodology grounding his opinion in reality constituted a substantial body of different foundation for his opinion; and
3.2. that the opinion sought to be adduced by the applicant/appellant in the evidence was insufficient to meet the requirement of 15.49(2)(a);
3.3. that the single expert did not have an apprehended closed mind as to any challenge to his opinions, including the methodology he applied to ground those opinions [paragraph 35 Judgment]
3.4. that pursuant to rule 15.49(2)(c) the difference in opinion between the single expert and the expert for which the husband sought leave to adduce and rely of $11,725,000 was insufficient, either alone and of itself, or in combination with the other matters prosecuted by the applicant/appellant, to achieve the threshold identified by the rule.
(As per the original)
As to Grounds 3.1 and 3.2, each of the experts had regard to the rent payable under the leases and made various adjustments. The primary judge concluded that the husband’s expert was “an alternate opinion”. The primary judge identified:
50. … the evidence from him does not go so far as to establish that the alternate methodology constitutes a substantial body of opinion. … What he proffered was an alternate approach that he opined was superior. That is insufficient to meet the requirement of r 15.49(2)(a). What has been offered is a merely contrary opinion. Under that circumstance, despite the significantly different outcome reached by the experts, the rule does not authorise the reception of the additional expert evidence.
As Kent J observed in Salmonand Ors & Salmon [2020] FamCAFC 134 (“Salmon”) at [35]:
35.… the words “substantial body of opinion” in r 15.49(2) are to be given real meaning, as was the approach taken by the primary judge. The approach that the words have meaning of substance has been adopted, correctly in my view, in other decisions at first instance in this Court. The mere expression of an opinion as to value by another expert, no matter how substantially contrary it is to that of the single expert, does not in and of itself constitute “a substantial body of opinion” within the meaning of the rule. If such 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…
(Footnote omitted)
We agree with both their Honours’ observations on the issue of a substantial body of opinion.
None of the matters raised by the husband in the Summary of Argument or orally identified a substantial body of contrary opinion.
Ground 3.3 and the contention that the way the single expert answered questions demonstrated that he had a closed mind is not established. Beyond an assertion, the matter was not taken further in the Summary of Argument and was faintly argued on the appeal.
We note the example referred to in the submission of the wife at trial, where her then counsel submitted:
[COUNSEL FOR THE WIFE AT TRIAL]: Well, simply in the terms of his responses to those two sets of questions. He has not said, “I am not going to answer that”, or anything of the kind. He has done his best to grapple with those questions, and at times, the questions put to him have, it would seem, confounded him. For example, page 86 of the bundle which I took your Honour to not so long ago, responds to questions 6 of the first set of questions. If one looks at page 86, what we’re actually looking at is the answer to question 6. And your Honour sees A, B, C, D. And below D, or just above E, [Mr B] says:
Beyond this response, A to D above, I am unsure how else to answer this question and would be happy to expand further if you would like to rephrase the question.
(Transcript 24 June 2021, p.35 line 43 to p.36 line 7)
An expert who expresses a willingness to expand on his answer if requested has not “closed his mind”. Establishment of a “closed mind” in the absence of cross-examination should only ever be established on the firmest of foundation. In this case, the evidence did not support it, and beyond hyperbole, we were not taken to any such evidence. It was not established how the primary judge erred in the conclusions he reached at [35] of his reasons. With respect, we agree with the primary judge’s conclusion.
Ground 3.4 had two limbs. The assertion in the first limb of Ground 3.4, that the mere fact of a significant difference in value between the two experts is sufficient of itself to warrant an adversarial expert, does not find favour in either the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) or the jurisprudence. As Kent J observed in Salmon and as referred to earlier:
35.… The mere expression of an opinion as to value by another expert, no matter how substantially contrary it is to that of the single expert, does not in and of itself constitute “a substantial body of opinion” within the meaning of the rule…
We agree with his Honour’s observation as far as the first limb of Ground 3.4 is concerned. A difference of opinion, even of this magnitude, does not simpliciter establish a basis for an adversarial expert.
The second limb of Ground 3.4, however, went further and substantially repeated the contention in Ground 2.2.
For the reasons provided in response to Ground 2.2, we are of the view that error has been established on the second limb of Ground 3.4.
Ground 4
4. That the Primary Judge, to the extent, if any:
4.1. misapprehended the evidence in support of the Application for Leave to Adduce and rely upon evidence of another expert witness, and the submissions in support thereof; and
4.2. erred in dismissing the application for leave to adduce expert evidence of the applicant/appellant prior to directing a conference between the single expert and [Mr D] pursuant to rule 15.69; and
4.3.erred in failing to identify that the refusal to permit the applicant/appellant leave to adduce and rely upon the evidence of [Mr D] compromised the interests of justice [paragraph 55 Judgment]; and
4.4. denied the applicant/appellant natural justice by preventing him the capacity at s. 79 trial to place relevant admissible opinion evidence in his case before the Court grounding the foundations to support findings of fact he seeks as to the value of the property of the parties.
(As per the original)
No argument in support of Ground 4.1 appears in the Summary of Argument and it was not advanced on the appeal.
Ground 4.2 suffers from an inherent difficulty in articulating error when no such application or proposition was advanced at the hearing. The husband cannot fairly criticise the primary judge for not doing what he was not asked. It would be entirely pointless and undermine the import of the Rules to order a conference of experts prior to determination of leave. It puts the proverbial cart before the horse.
The contention in the Summary of Argument in support of Ground 4.3 and 4.4, namely that the Court would have no evidence if Mr B’s report was demonstrated to be flawed, and thus the interests of justice was compromised or there was a denial of natural justice, is not sustainable. The reasoning of Kent J in Salmon demonstrates the erroneous nature of such a proposition. His Honour records:
41. Second, the submissions assume that a trial judge is bound to accept expert evidence of valuation, or expert evidence upon the identified issues, and that in the event that the trial judge does not accept the single expert’s evidence in some respect, there will be “no evidence” to enable those issues to be justly determined.
42. This contention ignores well settled principles as to the means by which a trial judge determines questions of valuation, as expressed by the High Court in Commonwealth v Milledge (“Milledge”) as “a commonsense endeavour, after consideration of all the material before the court, to fix a sum satisfactory to the mind of the court as representing the value” Milledge has often been applied by the Full Court of this Court in emphasis of the principle that a court must arrive at its own conclusion as to value by application of established principles of valuation.
(Footnotes omitted)
We agree with his Honour’s observations.
No error has been established in Ground 4.
CONCLUSION
We are satisfied that Ground 2.2 and the second limb of Ground 3.4 have merit.
RE-EXERCISE OF DISCRETION
We are persuaded for the reasons given earlier, that leave should be granted and the appeal allowed.
In the exercise of our discretion, we would permit the husband to rely upon another expert as it is established that there is another special reason for appointing another expert. Our reasons for finding that there is another special reason are:
(1)that as between the single expert and Mr D, they each have adopted an alternate methodology, which in part leads to a significantly different conclusion as to value;
(2)that there are matters known to Mr D that were not known to the single expert, which in part lead to a significantly different value; and
(3)that in circumstances where the wife seeks a cash payment and the husband will be left holding the properties, the consequences of the significant difference in value may more adversely impact the husband than the wife.
COSTS
Both parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) in the event that the appeal succeeded. Given that the appeal has succeeded on a question of law, such certificates are appropriate.
We will make orders accordingly.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Schonell. Associate:
Dated: 28 March 2022
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