On and On (No. 6)

[2007] FamCA 993

FAMILY COURT OF AUSTRALIA

ON & ON (NO. 6) [2007] FamCA 993

FAMILY LAW - PRACTICE AND PROCEDURE – Application brought by the husband for leave to call an additional expert witness in relation to the report of the single expert.  Important and significant valuation issue raised for determination on the appropriate methodology for the valuation of a large business.  In the exercise of discretion on the particular facts, the further report admitted into evidence.

Rule 15.49 of the Family Law Rules 2004

APPLICANT: Mr ON

RESPONDENT: Mrs ON

FILE NUMBER: MLF 7114 of 2001

DATE DELIVERED: 28 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 28 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

Orders

1. That the Form 2 Application filed by the husband on 28 February 2007 be dismissed.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed, a copy placed on the Court file and made available to the parties.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as ON & ON

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 7114  of 2001

Mr ON

Applicant

And

Mrs ON

Respondent

REASONS FOR JUDGMENT

1. In this matter I have before me a further Form 2 Application brought by the husband.  Although it has yet to be filed, I give the husband leave to file the Application in which he seeks an order that SF be permitted to value the property at T.

2. This is the third time that such an application has been made.  In support of his application, the husband relies upon what purports to be a breakdown of comparable sales, setting out such matters of size of property in square metres and square feet, sale price and date of sale.  That is the information upon which he relies.  That, and no more.

3. As I have said in earlier judgments on this particular issue, rule 15.49 of the Family Law Rules 2004 defines how I should approach an application of this nature. I make it clear that the Rules provide that I may allow a party to tender a report or adduce evidence from another expert witness on the same issue if I am satisfied that there is "a substantial body of opinion" contrary to the opinion given by the single expert.  Further, that the "contrary opinion is or may be necessary for determining the issue". 

4. It is clear from the Rules that my determination on this issue is discretionary and that the husband must meet the parameters prescribed by the Rules.  On the material before me, I do not propose to allow the application and it will be dismissed. 

5. The matters raised by the husband can be put by him, which he has said he proposes to do, to the single expert when called upon to give his evidence.  The single expert has attached to his affidavit filed 22 February 2007 all comparable sales evidence relied upon by him (nine in number) and added the additional words that “other sales had also been considered”, with full details being retained on the file.

6. Undoubtedly, these will be matters that will be put to him by the husband in the course of his evidence.  In the circumstances this application will be dismissed. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  27 August 2007.