Sanders & Sanders & Ors (No 2) - [2012] FamCAFC 190

FAMILY COURT OF AUSTRALIA

SANDERS & SANDERS AND ORS (NO. 2)

[2012] FamCAFC 190

FAMILY LAW – APPEAL – Application in an appeal – where additional matter to be forwarded to expert witness.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Sanders

FIRST RESPONDENT:

Mr Sanders

SECOND RESPONDENT:

U Pty Ltd

THIRD RESPONDENT:

CG Pty Ltd

FOURTH RESPONDENT:

S Pty Ltd

FIFTH RESPONDENT:

K Pty Ltd

SIXTH RESPONDENT:

Y Pty Ltd

SEVENTH RESPONDENT:

N Pty Ltd

EIGHTH RESPONDENT:

Mr EB

NINTH RESPONDENT:

AS Pty Ltd

TENTH RESPONDENT:

Mr YY

FILE NUMBER:

SYC

8576

2007

APPEAL NUMBER:

142

2011

DATE ORDERS MADE:

15 November 2012

DATE REASONS PUBLISHED:

15 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Rees JJ

HEARING DATE:

In Chambers

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 November 2011

LOWER COURT MNC:

[2011] FamCA 881

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Paul

SOLICITOR FOR THE APPELLANT:

Paul & Paul Lawyers

FOR THE FIRST RESPONDENT:

Mr Sanders in person

FOR THE SECOND RESPONDENT:

Mr YY in person

FOR THE THIRD RESPONDENT:

W Sanders in person

FOR THE FOURTH RESPONDENT:

Mr YY in person

FOR THE FIFTH RESPONDENT:

G Sanders in person

FOR THE SIXTH RESPONDENT:

No appearance

FOR THE SEVENTH RESPONDENT:

No appearance

FOR THE EIGHTH RESPONDENT:

No appearance

FOR THE NINTH RESPONDENT:

No appearance

FOR THE TENTH RESPONDENT:

Mr YY in person

Orders

That in addition to the material ordered to be prepared and forwarded to the single expert pursuant to order 7 of the Full Court made on 26 July 2012, the parties or each of them within 21 days of this order forward or cause to be forwarded to Mr E the following documents:
(a)Valuations prepared by Mr M and dated October 2010 and February 2011.
(b) Valuations prepared by Mr B dated August 2010 and March 2011.
(c) Transcript of evidence before Cleary J.
(d)Financial accounts and income tax returns of: Sanders-A Family Trust; Sanders Family Trust; Sanders Family Trust (I) and NPA for the financial years ending 30 June 2008 to 2012 inclusive.
(e)Financial accounts of NPA from 1 July 2010 to 23 August 2010.
(f)Valuations or agreed values of the property in North Sydney owned by the Sanders-A Family Trust at 31 August 2010 and 30 June 2012.
(g)Valuations or agreed values of any properties owned by the Sanders Family Trust and Sanders Family Trust (I) at 31 August 2010 and 30 June 2012.
(h)Copy of the partnership agreement of NPA and any agreement covering the admission of partners, exit of partners and any reconstruction or reconstitution of the partnership since its formation.
(i)Details of the sale of the property at V and the basis on which $1,457,000 was paid from the proceeds to the NAB in discharge of loans.
That within 21 days of receipt of an invoice or other document setting out his required fees, the parties each pay 20 per cent of that amount to Mr…

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.

Keep reading for free

Create a free CaseChat account to read Sanders & Sanders & Ors (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FamCAFC 190
Decision Date: 15 November 2012

CaseChat Overview and Summary

Sanders & Sanders & Ors (No 2) is a case involving multiple parties with a dispute concerning financial and property-related matters. The case was heard in the Supreme Court of Queensland. The primary parties involved are the various Sanders family trusts and individuals, including Sanders-A Family Trust, Sanders Family Trust, Sanders Family Trust (I), and NPA, a partnership. The nature of the dispute includes valuation issues, financial accounts, property transactions, and partnership agreements. The case requires the court to address the preparation and submission of specific documents to a single expert, the division of costs associated with the expert's fees, and restrictions on direct communication with the expert.

The legal issues before the court pertain to the procedural aspects of expert evidence in litigation. The court needed to determine the specific documents to be provided to the single expert, the division of costs for the expert's fees, and the communication protocols between the parties and the expert. The parties were required to submit various financial and property-related documents to the expert, including valuations, financial accounts, tax returns, and partnership agreements. The court also had to establish the method of cost-sharing for the expert's fees and clarify the rules for communication between the parties and the expert.

The court issued an order that the parties must forward specific documents to the single expert, including valuations, financial accounts, tax returns, and partnership agreements. The court mandated that each party pay 20% of the expert's fees upon receipt of an invoice. Additionally, the court prohibited direct communication with the expert without the consent of all parties involved or in response to a direct request from the expert. The court reserved the decision on the costs of the application, indicating that further deliberation would be required on that matter. This order ensures that the expert has all necessary information to perform their role effectively while maintaining the procedural integrity of the litigation process.

Orders

Orders of the court

1. That in addition to the material ordered to be prepared and forwarded to the single expert pursuant to order 7 of the Full Court made on 26 July 2012, the parties or each of them within 21 days of this order forward or cause to be forwarded to Mr E the following documents:

(a) Valuations prepared by Mr M and dated October 2010 and February 2011.

(b) Valuations prepared by Mr B dated August 2010 and March 2011.

(d) Financial accounts and income tax returns of: Sanders-A Family Trust; Sanders Family Trust; Sanders Family Trust (I) and NPA for the financial years ending 30 June 2008 to 2012 inclusive.

(e) Financial accounts of NPA from 1 July 2010 to 23 August 2010.

(f) Valuations or agreed values of the property in North Sydney owned by the Sanders-A Family Trust at 31 August 2010 and 30 June 2012.

(g) Valuations or agreed values of any properties owned by the Sanders Family Trust and Sanders Family Trust (I) at 31 August 2010 and 30 June 2012.

(h) Copy of the partnership agreement of NPA and any agreement covering the admission of partners, exit of partners and any reconstruction or reconstitution of the partnership since its formation.

(i) Details of the sale of the property at V and the basis on which $1,457,000 was paid from the proceeds to the NAB in discharge of loans.

2. That within 21 days of receipt of an invoice or other document setting out his required fees, the parties each pay 20 per cent of that amount to Mr E or as he might direct.

3. No party shall have direct communication with Mr E unless that party first seeks the consent of the other parties having identified the subject matter of the communication or if it is a direct response to a question or request of the single expert in which event the party receiving the question or request from the single expert forward to the other parties copies of the request or question within 24 hours of receiving it.

4. Costs of the application are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.