Padnall & Padnall (No 3) - [2014] FamCA 904

FAMILY COURT OF AUSTRALIA

PADNALL & PADNALL (NO. 3)

[2014] FamCA 904

FAMILY LAW – EVIDENCE – Single Expert – Valuation of husband’s business interest – where single expert appointed but husband seeks to tender report of another expert witness – where significant difference in valuation and methodology – substantial body of opinion contrary to opinion given by single expert – leave granted to tender report.

Evidence Act 1995 (Cth) s 75
Family Law Rules 2004 (Cth) rr 15.49, 15.65

Knight &Knight [2007] FamCA 263
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Turnley & Turnley [2005] FamCA 584
Wilde & Wilde [2007] Fam CA 1044

APPLICANT:

Mr Padnall

RESPONDENT:

Ms Padnall

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

1244

2012

DATE DELIVERED:

23 October 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

17 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

David Burrell & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That leave be granted to the applicant husband to tender into evidence the reports of Mr H, Chartered Accountant dated 14 October 2013, 3 December 2013, 4 January 2014 and 26 September 2014 and to adduce further evidence from him at the final hearing of these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Padnall & Padnall (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1244 of 2012

Mr Padnall

Applicant

And

Ms Padnall

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The trial in respect of property issues is listed to commence on 1 December 2014.
On 4 September 2014, I delivered reasons in respect of various outstanding interim applications leaving paragraph 1 of the husband’s Application in a Case filed 7 February 2014 outstanding.
In that application the husband seeks the following orders:-
(1)That order 1 of the orders sought in the Application in a Case filed by the husband on 16 October 2013 be varied such that leave be granted to the applicant husband pursuant to Rule 15.49 of the Family Law Rules to tender the report of [Mr H], Chartered Accountant, dated 14 October 2013, 3 December 2013 and 4 January 2014 and adduce further evidence from [Mr H] as required throughout these proceedings as to the issue of the value to be attributed to the business currently conducted by [P] Pty Ltd, the business conducted by [B] Investments Pty Ltd and the applicant husband’s interest in each of and either of those companies.
I do not propose to repeat at length the background set out in my reasons for judgment delivered on 4 September 2014.
What is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Padnall & Padnall (No 3)

Details

AGLC: Padnall & Padnall (No 3) [2014] FamCA 904
Case: [2014] FamCA 904
Decision Date: 23 October 2014

CaseChat Overview and Summary

In *Padnall & Padnall (No 3)*, Berman J of the Family Court of Australia considered an application by the husband for leave to tender further evidence from a chartered accountant and to adduce further evidence from him at the final hearing. The dispute concerned financial matters within the context of divorce proceedings.

The primary legal issue before the court was whether to grant the husband leave to introduce new documentary evidence and expert testimony from his chartered accountant. This involved an assessment of whether such evidence was necessary or desirable for the proper and just determination of the financial proceedings.

Berman J granted the husband's application, allowing the introduction of four specific reports from the chartered accountant dated 14 October 2013, 3 December 2013, 4 January 2014, and 26 September 2014. The court also permitted the husband to adduce further oral evidence from the accountant at the final hearing. The order reflects the court's discretion to admit evidence that it considers relevant and helpful to resolving the financial aspects of the marriage breakdown.

Orders

Orders of the court

That leave be granted to the applicant husband to tender into evidence the reports of Mr H, Chartered Accountant dated 14 October 2013, 3 December 2013, 4 January 2014 and 26 September 2014 and to adduce further evidence from him at the final hearing of these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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