Persson & Marchand

Case [2024] FedCFamC1F 758

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Persson & Marchand [2024] FedCFamC1F 758   

File number: MLC 10930 of 2022
Judgment of: SCHONELL J
Date of judgment: 12 November 2024
Catchwords: FAMILY LAW - EXPERT EVIDENCE – Where the wife  seeks to adduce adversarial evidence as to the value of farming land and the matrimonial home – Where the husband sought orders to appoint a single expert as to repairs to the roof of the home – Discussion of ‘special reason’ for allowing adversarial evidence – Where there is a special reason for allowing adversarial evidence in addition to the evidence of the jointly appointed single expert – Application to adduce adversarial evidence as to the value of farming land allowed – Application and response otherwise dismissed.
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 7.1, rr 7.02, 7.08, 7.18
Cases cited:

Duffy v McGee [2022] IECA 254

Neales & Neales (2022) FLC 94-079

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance
Number of paragraphs: 68
Date of hearing: 4 November 2024
Place: Sydney via audiovisual link
Counsel for the Applicant: Mr Dickson KC
Solicitor for the Applicant: Lander & Rogers
Counsel for the Respondent: Ms Vohra SC
Solicitor for the Respondent: Kenna Teasdale Lawyers

ORDERS

MLC 10930 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS PERSSON

Applicant
AND:

MR MARCHAND

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Pursuant to r 7.08(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Applicant have leave to tender a report or adduce evidence from Mr B, Certified Practising Valuer, in relation to the property situate at and known as C Street, Town D, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (Town D property).

2.By consent the parties jointly appoint E Company as a single expert to prepare a report in relation to the timeframe for the Town D property to be included in the town boundary and the timeframe for rezoning and application for subdivision.

3.That the husband and wife jointly appoint a single expert to prepare a written report detailing works required concerning the roof of the building located at F Street, Suburb G and the estimated costs of any works required to repair the roof, at their joint expense.

4.The wife’s Application in a Proceeding filed 30 August 2024 and the husband’s Response filed 18 September 2024 are otherwise dismissed.

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…

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AGLC
Persson & Marchand [2024] FedCFamC1F 758
Case
[2024] FedCFamC1F 758
Decision Date

CaseChat Overview and Summary

Ms Persson and Mr Marchand are engaged in financial proceedings following the breakdown of their relationship. The dispute primarily concerns the valuation of their assets, particularly the former matrimonial home and farming land. The wife seeks to introduce adversarial evidence regarding the value of these properties, while the husband has applied for a single expert to be appointed to assess the repairs needed for the roof of the home. The court was tasked with determining whether there were special reasons to permit the wife to present adversarial evidence in addition to the jointly appointed single expert's assessment.

The court carefully considered the circumstances surrounding the adversarial evidence. It noted that the wife had engaged a second valuer to critique the initial valuation and provide an adversarial report. The court found that there were special reasons to allow this adversarial evidence, primarily because the wife had concerns about the initial valuation being biased, given the valuer's recent employment change. Additionally, the court acknowledged the wife's need to challenge the valuation of the farming land, which was a significant asset in dispute. The court ruled that the adversarial evidence was necessary to ensure a fair assessment of the property values.

Accordingly, the court granted the wife's application to present adversarial evidence regarding the value of the farming land, while dismissing the husband's application for a single expert to assess the roof repairs. The court also approved the joint appointment of a single expert to evaluate the potential for rezoning and subdividing the farming land. This decision ensures that both parties have a fair opportunity to present their case and challenge the valuations as needed.

The final orders of the court allow the wife to introduce the adversarial evidence from Mr B concerning the farming land, while dismissing the husband's application for a single expert for the roof repairs. The court also mandates the joint appointment of a single expert to assess the potential rezoning and subdivision of the farming land. These orders aim to facilitate a fair and comprehensive assessment of the parties' assets in the financial proceedings.

Orders

Orders of the court

MLC 10930 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS PERSSON

Applicant

AND:

MR MARCHAND

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Pursuant to r 7.08(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Applicant have leave to tender a report or adduce evidence from Mr B, Certified Practising Valuer, in relation to the property situate at and known as C Street, Town D, being the whole of the land more particularly described in Certificate of Title Volume … Folio … (Town D property).

2. By consent the parties jointly appoint E Company as a single expert to prepare a report in relation to the timeframe for the Town D property to be included in the town boundary and the timeframe for rezoning and application for subdivision.

3. That the husband and wife jointly appoint a single expert to prepare a written report detailing works required concerning the roof of the building located at F Street, Suburb G and the estimated costs of any works required to repair the roof, at their joint expense.

4. The wife’s Application in a Proceeding filed 30 August 2024 and the husband’s Response filed 18 September 2024 are otherwise dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I have read all of the evidence relied upon in the application but do not propose nor is it necessary to repeat all of it or all of the submissions in these reasons (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).BACKGROUND The husband and wife are involved in financial proceedings consequent upon the breakdown of their relationship. The husband contends the pool of assets is approximately $18,000,000 whereas the wife contends the pool is approximately $28,000,000. The parties are at issue in relation to the value of two pieces of real estate; one being the former matrimonial home at Suburb G in Victoria (“the home”) and the other being farming land of over 30 hectares (there is asserted to be an issue as to the exact size) at Town D in Victoria (“the land”). One of the issues in the proceedings is whether the land will be rezoned and whether it is subdividable. A subset of related issues flow from the answer. In December 2023, the parties jointly engaged M Company as a single expert to value the two properties. M Company subsequently appointed Mr K to value the land and Mr J to value the home. Each valuer prepared a report. In January 2024, Mr J valued the home at $4,500,000 and in February 2024, Mr K valued the land on its current market value at $8,000,000 and at a value of between $75,000,000 and $90,000,000 assuming it could be rezoned and subdivided. Following the release of the reports, the wife submitted questions to each valuer. In March 2024, Mr K left the offices of M Company and commenced working at N Company as a director of the valuations team. On 2 April 2024, the wife’s solicitors engaged Mr L of O Company to prepare an adversarial valuation in respect of the home. His report was prepared as at 6 May 2024 and valued the home at $4,150,000. On 23 April 2024, the wife’s solicitors engaged Mr B of N Company to prepare a critique of Mr K’s report and an adversarial valuation of the land. Following his engagement, Mr B advised the wife’s solicitors that Mr K had commenced employment with N Company. Upon being advised of this fact, the wife’s solicitors by letter dated 26 April 2024 indicated that they wished to proceed, but on the basis that Mr B provide an undertaking in the following terms:1.That you will not communicate with [Mr K] in relation to this engagement or his engagement to prepare a valuation of the [Town D] property whilst at [M Company] unless jointly authorised by the parties in this matter;2.You will not access any data, memorandum or correspondence that is in [Mr K’s] possession in relation to the [Town D] property; and 3.That there will be an electronic quarantine precluding [Mr K] from access to all relevant file data for this engagement. By return letter dated 30 April 2024, Mr B responded that N Company would provide undertakings as follows:1.We will not communicate with [Mr K] in relation to the present engagement or [Mr K’s] previous engagement to prepare a valuation report on behalf of his former employer ([M Company]) unless jointly authorised by the parties in the Family Law Matters.2.We will not access any data, memorandum or correspondence in [Mr K’s] possession in relation to the [Town D] property or [Mr K’s] previous engagement regarding this property, noting we have been provided with certain redacted materials by the legal representatives of the parties but nothing directly from [Mr K].3.We have instituted and will maintain (at least for the duration of the present engagement) an electronic quarantine precluding [Mr K] from access to all relevant file data for this engagement.

Evidence

Evidence Before The Court

It appears that Mr K remains unaware of the engagement of Mr B or the existence of his report.EVIDENCE OF MR B Mr B gave evidence that he commenced working at N Company in 1987 and is a senior executive. He said that Mr K commenced working for N Company in March 2024 albeit that he is in a separate team to him. His affidavit records:8.Lander & Rogers have informed me that I am required for cross-examination on 4 November 2024 and that I will likely be cross-examined with respect to my working relationship with [Mr K]. Given [Mr K] is an employee of [N Company], I considered it appropriate to inform [N Company’s] in-house legal team of the foreshadowed cross-examination. Upon being made aware, our in-house legal team determined that it holds a duty of care to [Mr K] to advise [Mr K] of the Wife's application to adduce evidence from me and the nature of the foreshadowed cross-examination on 4 November 2024. As a Board Director of [N Company] I want to ensure that there is no embarrassment or harm caused to [Mr K] as a result of the foreshadowed cross-examination.9.I am informed and readily believe that Lander & Rogers sent correspondence to Kenna Teasdale on 25 October to advise them of our in-house legal team's determination and a proposed joint letter to [Mr K] was provided. Annexed hereto and marked with the letters "[MB]-3" is a true and correct copy of the correspondence from Lander & Rogers and the proposed joint letter dated 25 October 2024.10.I am informed and readily believe that as at the date of affirming this affidavit, the Husband's lawyers have not signed the joint letter to [Mr K] to advise him of my involvement. Accordingly, to the best of my knowledge, I understand that [Mr K] remains unaware of my involvement in these proceedings.11.Should [Mr K] be made aware of my involvement in these proceedings, I confirm that I will not communicate with [Mr K] in relation to the present engagement or [Mr K's] previous engagement to prepare a valuation report except as agreed between the husband and the wife in thse [sic] proceedings or as otherwise ordered by this Honourable Court, and that I will otherwise continue to act in accordance with the undertaking provided on 30 April 2024. 12.I also wish to make the following points in advance of the hearing on 4 November 2024:(a)[Mr K] and I work in entirely separate teams, and there is no reporting relationship between [Mr K] and me.(b)I am not involved in any aspect of [Mr K's] supervision. [Mr K] reports to and is supervised by [Mr P].(c)Whilst I do not supervise [Mr K], my position as a Board Director may require me from time to time to consider career progression and remuneration of [Mr K].(d)[Mr K] undertakes valuations for [one of our] Practice Group […] and I undertake valuations for [another of our] Practice Group[s].(e)I have not been involved, and nor do I expect to be involved in preparing any valuations with [Mr K] going forward in circumstances where our teams operate separately. [Mr K], in his role at [N Company], is not involved in preparing any valuations relating to residential subdivision work. The only time there might be some cross‑over would be if a client had a portfolio which required expertise from both the […] Practice Group[s].(f)I was not involved in [Mr K’s] interview process, nor was I involved in any decision to hire him at [N Company].(g)There are [over 150] employees at [N Company] with [over 100] employees operating out of our Melbourne office. These numbers include myself and [Mr K].(h)The commentary I have provided pertains to a valuation report prepared by [Mr K], under the supervision of [Mr Q], whilst employed at [M Company]. It is not commentary on [Mr K] as a person and the type of valuation is not one that [Mr K] will be involved in whilst employed within the […] Practice Group at [N Company].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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