Pitt & Pitt - [2009] FamCA 620

FAMILY COURT OF AUSTRALIA

PITT & PITT

[2009] FamCA 620

FAMILY LAW – PRACTICE AND PROCEDURE – Whether leave should be granted to enable expert evidence to be given in relation to valuation of a company in addition to the evidence of the single expert – consideration of ground of a contrary substantial body of opinion

Family Law Rules 2004 (Cth) Rules 1.04; 15.42; 15.49(2)(a) and 15.52(3)

APPLICANT:

Ms Pitt

RESPONDENT:

Mr Pitt

FILE NUMBER:

SYC

2905

2007

DATE DELIVERED:

16 July 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rose J

HEARING DATE:

28 May 2009

11 June 2009

WRITTEN SUBMISSIONS:

28 May 2009
1 June 2009
3 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

R. Lethbridge S.C.

SOLICITOR FOR THE APPLICANT:

Slade Manwaring

COUNSEL FOR THE RESPONDENT:

C. Simpson S.C.

SOLICITOR FOR THE RESPONDENT:

Armstrong Legal

Orders

That pursuant to Rule 15.49, leave is granted to the Wife to tender the report of Ms N Accountant annexed to her affidavit sworn 22 May 2009 and filed 25 May 2009 in relation to the issue of the valuation of the shareholding of the parties in R Pty Limited.
That the Wife cause a sealed copy of the affidavit referred to in Order 1 to be served on Ms D accountant on or before 5pm 20 July 2009.
That the parties make arrangement for Ms D and Ms N to confer for the purposes of compliance with all of the provisions of Rule 15.69(3) on or before 5pm 7 August 2009.
That the parties arrange for Ms D and Ms N to lodge their completed Joint Statement referred to in Rule 15.69(3)(e) lodged with the Associate to the Honourable Justice Rose and served on or before 5pm 21 August 2009.
Costs reserved.

IT IS NOTED that publication of this judgment under the pseudonym Pitt & Pitt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2905 of 2007

MS PITT

Applicant

And

MR PITT

Respondent

REASONS FOR JUDGMENT

Introduction

The substantive proceedings between the parties in which each of them seek orders for property settlement have been set down for trial for seven days commencing 10am 31 August 2009.
On 1 May 2009 case management and pre-trial directions were made.
On 25 May 2009 an Application in a Case was filed on behalf of the Wife in which an order was sought that Ms N “be appointed as an adversarial expert in relation to the value of the parties’ shareholding in [R] Pty Ltd (“[R Company]”) and otherwise the matters specified in paragraph 1 of that Application.” Further directions were sought on the premise that the Wife’s Application would be successful. The Application is opposed. The parties are represented by Senior Counsel.
On 28 May 2009 against a background that the submissions on behalf of the Wife were set out in the “Outline of Case Document” filed in Court on that day, I made directions…

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 Pitt & Pitt

Details

AGLC: Pitt & Pitt [2009] FamCA 620
Case: [2009] FamCA 620
Decision Date: 16 July 2009

CaseChat Overview and Summary

In the matter of *Pitt & Pitt*, heard before Rose J, the Wife sought leave to tender an accountant's report concerning the valuation of a shareholding in R Pty Limited. The dispute centred on the admissibility of this report as evidence in the proceedings.

The primary legal issue before the court was whether to grant the Wife leave to tender the report of Ms N Accountant, annexed to her affidavit. This involved considering the rules of evidence and procedure applicable to the admission of expert reports in family law proceedings.

Rose J granted the Wife leave to tender the report, acknowledging its relevance to the valuation issue. The court then made further orders to facilitate the process, requiring the Wife to serve a copy of the affidavit on Ms D Accountant. Crucially, the court directed that Ms D and Ms N confer to comply with Rule 15.69(3) and subsequently lodge a joint statement with the Associate to the Honourable Justice Rose, with specific deadlines set for each step. Costs were reserved.

Orders

Orders of the court

That pursuant to Rule 15.49, leave is granted to the Wife to tender the report of Ms N Accountant annexed to her affidavit sworn 22 May 2009 and filed 25 May 2009 in relation to the issue of the valuation of the shareholding of the parties in R Pty Limited.

That the Wife cause a sealed copy of the affidavit referred to in Order 1 to be served on Ms D accountant on or before 5pm 20 July 2009.

That the parties make arrangement for Ms D and Ms N to confer for the purposes of compliance with all of the provisions of Rule 15.69(3) on or before 5pm 7 August 2009.

That the parties arrange for Ms D and Ms N to lodge their completed Joint Statement referred to in Rule 15.69(3)(e) lodged with the Associate to the Honourable Justice Rose and served on or before 5pm 21 August 2009.

Costs reserved.

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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