Rojo and Durban

In the Family Court of Australia, Justice Barry considered an application by Mrs Rojo (the applicant wife) against Mr Durban (the respondent husband) concerning the valuation of a company, B Pty Ltd trading as DS. The dispute centred on the appointment of a single joint expert to value the company and to report on the extent to which the conduct of either party may have affected its value. The wife sought the appointment of Ms E of H Pty Ltd as the expert, while the husband initially opposed the need for an expert, later proposing Mr H of V Company.

The court was required to determine four key issues: firstly, which of the proposed experts should be appointed as the single joint expert; secondly, the scope of the expert's report, specifically whether it should include an examination of the parties' conduct affecting the company's value; thirdly, the allocation of the expert's fees, particularly who should bear the initial costs; and finally, the process for preparing the letter of instructions to the expert. The court also had to consider the Family Law Rules regarding the appointment and use of single expert witnesses, which favour their use to ensure efficiency and cost-effectiveness.

Justice Barry reasoned that the appointment of a single joint expert was appropriate and necessary given the dispute over the company's valuation and the allegations of conduct affecting it. He preferred Ms E of H Pty Ltd over Mr H of V Company, noting that Ms E provided a more realistic cost estimate and that neither party had any prior association with her or her firm, thereby avoiding potential perceptions of bias. The court found that examining the conduct of the parties was highly relevant to the valuation, as numerous allegations had been made, and it would be artificial to exclude such considerations from the expert's report, though the ultimate determination of conduct would remain with the trial judge. The wife's proposal to pay the initial $30,000 of the expert's fees was deemed reasonable, with the ultimate allocation of costs reserved for the trial judge.

Consequently, the court ordered the appointment of Ms E of H Pty Ltd as the single joint expert to value B Pty Ltd trading as DS at specified dates and to report on the impact of the parties' conduct on its value. The wife was ordered to pay the expert's fees and expenses up to $30,000 in the first instance, with any excess to be met equally by the parties, and the ultimate apportionment of these costs reserved for the trial judge. The parties were directed to confer on a letter of instructions within 21 days, with a mechanism for court settlement if agreement could not be reached. Costs were reserved.