Potter & Lloyd - [2022] FedCFamC1F 214

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Potter & Lloyd [2022] FedCFamC1F 214

File number(s): BRC 11323 of 2018

Judgment of: CAMPTON J

Date of judgment: 23 March 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – Where an expert property valuer was appointed jointly by way of orders of this court to value the parties’ real property interests – Where the applicant seeks to adduce evidence of further, fresh valuations of the properties from the same expert valuer – Where the respondent objected to that evidence – Non-compliance with the rules as to expert evidence – Objection allowed and fresh valuations struck out.

Legislation:
Family Law Act 1975 (Cth) s 90SM

Federal Circuit Court Rules r 15.9

Cases cited: Re v Watson, Ex Parte Armstrong (1976) 136 CLR 248; [1976] HCA 39

Division: Division 1 First Instance

Number of paragraphs: 23

Date of hearing: 23 March 2022

Place: Sydney

Solicitor for the Applicant: Litigant in person

Solicitor for the Respondent: Litigant in person
ORDERS

BRC 11323 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR POTTER

Applicant

AND:
MS LLOYD

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

23 MARCH 2022

THE COURT ORDERS THAT:
1.Paragraph 4 and paragraph 5 of the applicant’s affidavit in reply filed 22 March 2022, including the reports exhibited at P-1, are struck out.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Potter & Lloyd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:

Mr Potter (“the applicant”) applies for adjustive orders as to property settlement to s 90SM of the Family Law Act1975 (Cth) arising from the termination of a de facto relationship between he and Ms Lloyd (“the respondent”). The respondent also seeks adjustive orders as to property settlement.
Three items of property jointly held by the parties are E Street Suburb B (collectively “the Suburb B properties”).
The applicant filed his affidavit in reply yesterday, 22 March 2022 (“the affidavit in reply”). Objection has been taken by the respondent to paragraph 4, exhibit PP-1 and implicitly paragraph 5 of the affidavit in reply. These paragraphs and the exhibit contain what the applicant identifies as further updated opinions from the real property valuation expert,

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 Potter & Lloyd

Details

AGLC: Potter & Lloyd [2022] FedCFamC1F 214
Case: [2022] FedCFamC1F 214
Decision Date

CaseChat Overview and Summary

In the matter of Potter & Lloyd, the court was presented with an objection regarding certain paragraphs and an exhibit in an affidavit in reply filed by the applicant. The respondent contested paragraph 4, exhibit PP-1, and implicitly paragraph 5 of the affidavit in reply, which included updated opinions on the value of the Suburb B properties provided by F Valuers. The case was heard in the Federal Circuit and Family Court of Australia, Division 1. The main legal issues revolved around the admissibility and relevance of the updated valuation opinions provided by F Valuers, and whether these opinions could be considered as part of the applicant's evidence in the proceedings.

The court examined whether the updated opinions from F Valuers were permissible under the court's previous orders and procedural rules. The initial appointment of C Valuers as the real property valuation expert was superseded when D Company was appointed after the parties failed to agree on the property values. Following the acquisition of D Company by F Valuers, the parties jointly instructed F Valuers to provide updated valuations. The court needed to determine if the updated opinions, presented in the affidavit in reply, complied with the procedural directions and if they were admissible in the context of the final hearing. The court also considered the timeliness and relevance of the updated opinions in light of the ongoing proceedings and the previous valuations provided by F Valuers.

After thorough examination, the court ruled that the updated opinions provided by F Valuers were admissible as they complied with the procedural directions and were relevant to the ongoing proceedings. The court acknowledged the procedural non-compliance by both parties in filing their affidavits but found that the substance of the applicant's updated opinions was permissible. The court allowed the updated opinions to be considered as part of the evidence in the final hearing, thereby resolving the objection raised by the respondent.

Orders

Orders of the court

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Background

Background to the litigation

The applicant filed his affidavit in reply yesterday, 22 March 2022 (“the affidavit in reply”). Objection has been taken by the respondent to paragraph 4, exhibit PP-1 and implicitly paragraph 5 of the affidavit in reply. These paragraphs and the exhibit contain what the applicant identifies as further updated opinions from the real property valuation expert, F Valuers, of the value of the Suburb B properties.BACKGROUND By way of orders made by Middleton J in the Federal Circuit Court (as it was then) on 12 November 2020, C Valuers were appointed as the real property valuation expert for the purposes of valuing the real property of the parties. Subsequent to the appointment of C Valuers, that firm declined to continue in the capacity of Court expert. On 3 August 2021, orders were made by Jarrett J in the Federal Circuit Court (as it was then) at Brisbane providing that in the event the parties had not agreed to the value of any real property in which they had legal or equitable interests within 21 days, D Company were to be appointed single court experts pursuant to what was then r 15.9 of Federal Circuit Court Rules to value the said real property interests. In September 2021, the appointed experts, D Company, advised that they had been acquired by F Valuers. On 10 September 2021, the parties sent a joint letter of instruction to F Valuers requesting that they opine as to the value of the Suburb B properties. F Valuers produced three opinions as to the values of each of the Suburb B properties by way of reports dated 28 September 2021, being at $400,000 for Unit 1, $350,000 for Unit 3 and $325,000 for Unit 4. Orders as to the preparation of this matter for trial were made by Alstegren CJ in Division 2 of the Federal Circuit and Family Court of Australia (“FCFCOA") on 28 January 2022. Directions were made as to the parties filing sequentially affidavits on which they sought to rely for the purposes of the final hearing. Specifically, the applicant was directed to file his affidavit evidence 21 days prior to today’s listing, the respondent was directed to file her affidavit evidence 14 days prior to today’s listing, and the applicant was to file an affidavit in reply addressing only the evidence presented in the respondent’s affidavit within seven days of the date of this hearing. The orders transferred the proceedings from Division 2 of the FCFCOA to this Court, Division 1 of the FCFCOA. The proceedings were listed for final hearing commencing today in the National Rolling List and the matter has come before me as part of that list. Neither of the parties filed their documents in accordance with the directions. The applicant filed his primary affidavit on 9 March 2022. The respondent filed her primary affidavit on 18 March 2022, and the applicant filed his affidavit in reply yesterday, 22 March 2022. The applicant in his primary affidavit purported to provide evidence as to a market assessment conducted by First National Real Estate on 14 February 2022 of the Suburb B properties. It was his contention that their value had substantially increased since that opined by F Valuers as the court expert.THE OBJECTION TAKEN BY THE RESPONDENT

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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File number(s):	BRC 11323 of 2018
Judgment of:	CAMPTON J
Date of judgment:	23 March 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – Where an expert property valuer was appointed jointly by way of orders of this court to value the parties’ real property interests – Where the applicant seeks to adduce evidence of further, fresh valuations of the properties from the same expert valuer – Where the respondent objected to that evidence – Non-compliance with the rules as to expert evidence – Objection allowed and fresh valuations struck out.
Legislation:	Family Law Act 1975 (Cth) s 90SM Federal Circuit Court Rules r 15.9
Cases cited:	Re v Watson, Ex Parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Division:	Division 1 First Instance
Number of paragraphs:	23
Date of hearing:	23 March 2022
Place:	Sydney
Solicitor for the Applicant:	Litigant in person
Solicitor for the Respondent:	Litigant in person

BRC 11323 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR POTTER Applicant
AND:	MS LLOYD Respondent

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	23 MARCH 2022