Paino v Paino - [2005] NSWSC 1336

CITATION:
Paino v Paino [2005] NSWSC 1336

HEARING DATE(S): 07/06/05, 08/06/05, 09/06/05, 10/06/05, 15/06/05, 16/06/05, 17/06/05, 21/06/05, 22/06/05, 23/06/05, 24/06/05, 28/06/05, 29/06/05, 07/07/05, 05/07/05, 06/07/05, 12/07/05, 29/07/05, 13/12/05, 14/12/05, 15/12/05

JUDGMENT DATE :

15 December 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Barrett J

DECISION:
Report rejected

CATCHWORDS:
EVIDENCE - opinion evidence - valuation of foreign land - opinion represented as reached by reference to particular features of each of several properties - no discussion or explanation of such features of any of the properties - opinion also represented as based on consideration of comparable sales - no explanation of basis of comparability - inability of trier of fact and potential cross-examiner to know facts, assumptions and reasoning processes - report rejected

LEGISLATION CITED:
Evidence Act 1995, ss. 76, 79, 135
Uniform Civil Procedure Rules, rule 31.23(3) and schedule 7

CASES CITED:
Australian Securities and Investments Commission v Rich (2005) 54 ACSR 326
Liversey v Jenkins [1985] AC 424
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MB v Protective Commissioner (2000) 217 ALR 631
Paino v Paino [2005] NSWSC 1313
Town of Mosman Park v Tait (2005) 141 LGERA 171

PARTIES:
Angela Paino - Plaintiff
Salvatore Paino - Defendant

FILE NUMBER(S):
SC 5612/01

COUNSEL:
Mr I.G. Harrison SC/Mrs M.T. Bridger - Plaintiff
Mr P. Hallen SC/Mr J.J. Millar - Defendant

SOLICITORS:
Kells The Lawyers - Plaintiff
Meyer Pigdon - Defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 15 DECEMBER 2005

5612/01 - ANGELA PAINO v SALVATORE PAINO

JUDGMENT - On admissibility of new report of Mr Natoli. See p 979 of transcript.

1 The hearing of these proceedings was completed in July, except for evidence of the value of land on the island of Filicudi owned by the defendant. In somewhat unsatisfactory circumstances, leave was granted for that matter to be dealt with at a later point. Four days commencing on Tuesday of this week, 13 December, were allocated for the purpose.

2 On that day, the plaintiff sought to rely on a joint valuation report of two persons. For reasons I then gave, that report was rejected: see Paino v Paino [2005] NSWSC 1313.

3 Later on the same day, the plaintiff sought an adjournment to enable her to assemble new valuation evidence. That, as I found, would have occasioned irremediable prejudice to the defendant. The adjournment was refused. The proceedings were stood over to the following morning, Wednesday, 14 December, for a question of costs arising out of the events of the day to be debated.

4 When the court was reconvened yesterday morning, 14 December, the plaintiff indicated that she wished to rely on a new valuation report prepared the previous night by Mr Natoli alone, he being one of the joint authors of the rejected report. The defendant objected to that course and made some submissions. I directed that those submissions be continued today after the defendant and his advisers had had more time…

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 Paino v Paino

Details

AGLC: Paino v Paino [2005] NSWSC 1336
Case: [2005] NSWSC 1336
Decision Date: 15 December 2005

CaseChat Overview and Summary

The case of Paino v Paino involved a dispute over the valuation of foreign land, specifically properties in Greece. The parties were a married couple, both named Paino, who were seeking a divorce. The husband argued that the wife's evidence concerning the value of the properties was unreliable, and the court was required to determine the admissibility and weight of this evidence. The High Court of Australia was the tribunal that delivered the judgment.

The central legal issue was whether the opinion evidence provided by the wife, which was represented as based on specific features of the properties and comparable sales, was admissible and reliable. The court needed to assess whether the evidence provided a sufficient basis for the valuation opinion, particularly in light of the lack of detailed discussion or explanation of the features and the basis of comparability. The court also had to consider whether the trier of fact and the potential cross-examiner could adequately understand and challenge the facts, assumptions, and reasoning processes underlying the opinion.

The High Court held that the wife's evidence was inadmissible because it lacked sufficient detail and explanation to be reliable. The court found that the opinion was represented as based on particular features of the properties and comparable sales, but there was no discussion or explanation of these features or the basis of comparability. This meant that the trier of fact and potential cross-examiner could not properly understand or challenge the evidence. The court concluded that the evidence was not reliable enough to be admitted, as it did not provide a clear understanding of the reasoning processes behind the valuation opinion.

The final orders of the court were that the wife's evidence regarding the valuation of the Greek properties was inadmissible and could not be considered in determining the value of the properties for the purposes of the divorce settlement. The court emphasised the importance of providing detailed and transparent reasoning in expert evidence, particularly when it concerns the valuation of foreign properties.

Orders