COUNSEL: Mr F M Douglas QC with Mr N Owens and Ms L Wilson - Appellant/Cross-Respondent Mr P Hallen SC with Mr J J Millar - Respondent/Cross-Appellant
SOLICITORS: Kenneally & Co - Appellant/Cross-Respondent Meyer Pigdon - Respondent/Cross-Appellant
CATCHWORDS: EVIDENCE – admissibility – expert evidence – valuation of property – joint expert report – whether valuation wholly or substantially based on expert’s opinion – Evidence Act 1995 s 79 EVIDENCE – proof of loss – where substantial loss proved by plaintiff but evidence does not enable precise quantification – duty of court to do its best to quantify such evidence FAMILY LAW – de facto relationships – adjustment of property interests – contributions – whether primary judge erred in evaluative assessment of parties’ non-financial contributions – whether primary judge’s evaluative assessment outside a reasonable range – Property (Relationships) Act 1984 s 20(1)(a), s 20(1)(b)
[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.
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AGLC
Paino v Paino [2008] NSWCA 276
Case
[2008] NSWCA 276
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Angela Paino (the appellant) and her former de facto partner, Angelo Paino (the respondent), regarding the adjustment of property interests. The primary judge had made orders concerning the division of property, and the appellant sought to appeal these orders. The case was heard in the Court of Appeal of New South Wales.
The legal issues before the Court of Appeal included the admissibility of expert valuation evidence concerning properties owned by the respondent in Filicudi, Italy, and whether the primary judge erred in his assessment of the parties' non-financial contributions to the relationship. Specifically, the court considered whether the valuation report was wholly or substantially based on the expert's opinion, as relevant to section 79 of the *Evidence Act 1995* (NSW). Furthermore, the court examined whether the primary judge's evaluative assessment of the non-financial contributions was outside a reasonable range, as provided for by sections 20(1)(a) and 20(1)(b) of the *Property (Relationships) Act 1984* (NSW).
The Court of Appeal allowed the appeal. It found that the primary judge had erred in rejecting the appellant's expert evidence regarding the Filicudi properties. The court reasoned that the expert report, while containing some factual information, was substantially based on the expert's opinion and therefore should have been admitted. The court also indicated that the primary judge's evaluative assessment of non-financial contributions might have been outside a reasonable range.
Consequently, the Court of Appeal ordered that the respondent pay the appellant's costs of the appeal. The matter of quantifying specific amounts (A, B, and C) was referred to another judge for determination based on the existing expert reports and cross-examination. The question of final orders and costs at first instance was to be considered at a later date.
Orders
Orders of the court
(1) Appeal allowed. (2) Order respondent to pay appellant's costs of the appeal to date and to have a certificate under the Suitor's Fund Act 1951 if otherwise entitled. (3) Refer to Barrett J or another judge or associate judge of the Equity Division, determination of the amounts (A), (B) and (C) on the basis of the existing experts' reports and cross-examination of those experts. (4) Stand over to a date to be fixed before the Court of Appeal the question of final orders and costs at first instance.
Background
Background to the litigation
The background can conveniently be taken from Barrett J’s reasons:“The parties and their background6. The plaintiff was born in Italy on 22 April 1954. She is now aged 51. She arrived in Australia with her parents at the age of 17 and, after completing her schooling, had several jobs (all of them secretarial or, in one case, ‘executive trainee’ for about six months) up to March 1981 when the defendant responded to an advertisement she had placed in a newspaper. She thereafter became the defendant’s secretary. The plaintiff has never married and has no children. Her name was originally Angela La Camera. Some time after her relationship with the defendant began, the plaintiff changed her name to Angela Paino.7. The defendant was born in Italy on 14 June 1929. He is now 76 years old. He arrived in Australia at the age of 19. He married in 1958 but he and his wife separated in about 1967. There were two children of that marriage – a daughter Corina (born 12 May 1960) and a son Stefano, or Steven (born 2 March 1962). Fairly soon after arriving in Australia, the defendant began to invest in real estate. He started a real estate agency in about 1958 and later branched out into property development. He bought and sold many properties. Among those he bought was a site at Randwick on which the Gemini Hotel was subsequently built. That hotel has for many years been owned by the defendant (or, more precisely, by companies owned by him) and has been the headquarters of his business. He maintains his main office there. The defendant bought the vacant residential land at 106 Wolseley Road, Point Piper in about 1975. Construction of a house on that site began in about 1978. The defendant and his two children moved into that house in 1980 or 1981 and it has remained his home since then. His daughter Corina lived there until about May 1987 following her marriage in December 1986. It was also the home of his son Steven until 1992. The house is a substantial waterfront property with extensive harbour views. 8. Certain business ventures of the defendant, apart from the Gemini Hotel, should be mentioned. He (or a company he owns) is the proprietor and operator of a Mitre 10 hardware store at Randwick. He controls a company called Gemini Industries which imports and sells bathroom ware and related products. He owns a tract of vacant land at Smithfield (just outside Cairns in Queensland) part of which is the site of a palm plantation. Until relatively recently, the defendant owned a hotel/motel at Griffith. He also owns a number of properties on the island of Filicudi in the Aeolian Archipelago off the coast of Sicily. He has purchased these progressively since the early 1970’s. It was from Filicudi that the defendant came to Australia.” It was common ground at trial that a romantic attachment between the appellant and the respondent began in 1981 or 1982 after she became his secretary, and that a sexual relationship between them existed from some time in 1982: primary judgment (at [12]). The primary judge found that the parties were in a de facto relationship from the time the appellant moved into the respondent’s Point Piper home in late 1988 until January 2001 – a relationship, for the purposes of the Act, of a little more than twelve years: primary judgment (at [47]).
Evidence
Evidence Before The Court
At the conclusion of his judgment (at [214]) the primary judge said he would hear the parties as to the precise order that should be made to give effect to his reasons and on the question of costs. On 5 September 2006 he delivered a judgment on costs in which he ordered each party to bear his or her own costs, subject to allowances by the appellant to the respondent of sums it is unnecessary to detail: Paino v Paino - Costs [2006] NSWSC 886. The parties have agreed that the question of costs should be argued and determined after resolution of the substantive appeal.The expert evidence issue As we have said, the appellant wished to tender valuation evidence of the value of the Filicudi properties. She was unsuccessful. The primary judge rejected her expert evidence: see Paino v Paino [2005] NSWSC 1313 (the “first expert evidence judgment”). Thereafter the respondent did not seek to tender any evidence of the value of the Filicudi properties. The expert evidence upon which the appellant sought to rely consisted of a report prepared over the signatures of Mr Piero Fumia, a real estate agent and Mr Aldo Natoli, a surveyor. She sought to adduce that evidence on 13 December 2005. The appellant’s counsel read an affidavit of Mr Natoli to which the report was exhibited. The report had been translated from Italian. It was described as “Counter Assessments to Valuation prepared by Geom. Angelo Scafidi covering real estate property located in the island of Filicudi in the Municipality of Lipari and relevant valuations on behalf of Mrs Angelo Paino.” The report was expressed in first person plural. It described the Aeolian island group in which Filicudi is found, and the island itself, in some detail: The Aeolian Islands are located in the Province of Messina. The report set out town planning restrictions to which the island was subject. It identified the land the respondent owned on the island from information derived from the respondent’s valuation prepared by Mr Scafidi and information provided by the appellant, as well as searches the authors had conducted in the Real Estate Register and the Land and Building Registry in Messina. It set out a description of the plots of land the respondent owned, recording their title details, area, location, zone and the extent of the respondent’s interest. The list was extensive, taking 25 pages of the report. Next, the report listed the buildings the respondent owned derived from the same sources, described their location and the available utilities. It then undertook a critical analysis of Mr Scafidi’s report. Finally it recorded the valuation criteria adopted both for different zones on the island, as well as for a number of different years. In the latter respect it is apparent the report was intended to deal with possible dates of valuing the parties’ contributions at the time the relationship commenced in or about 1982, at the time the appellant moved in with the respondent (1988) and then at the year of separation and each successive year up to 2005.