SPURLING & SPURLING

[2018] FamCA 11

FAMILY COURT OF AUSTRALIA

SPURLING & SPURLING [2018] FamCA 11

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment  of single expert witness

APPLICANT: Ms Spurling

RESPONDENT: Mr Spurling

FILE NUMBER: HBC 369 of 2017

DATE DELIVERED: 16 January 2018

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 21 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Fitzgerald & Browne

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Wright Lawyers & Associates

Orders

1. Pursuant to Family Law Rules, B Valuers be appointed as a single expert witness to value and provide a written report of the land, building and water rights at “C Street, D Town in New South Wales and E Street, D Town in New South Wales.

2. The husband provide access for the expert to the properties at C Street and E Street for the purpose of the report.

3. The parties do all things to cause a joint letter of instruction to issue within twenty one (21) days.

4. Within seven (7) days of any request for further information or documents, the parties provide such information or documents to the expert.

5. The costs of the single expert report be paid by F Pty Ltd.

6. The solicitors are restrained from charging their respective clients any legal fees relating to the preparation and filing of their respective submissions on the appointment of a single expert together with the affidavits filed specifically in support of those submissions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spurling & Spurling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 369  of 2017

Ms Spurling

Applicant

And

Mr Spurling

Respondent

REASONS FOR JUDGMENT

1. Ms Spurling (‘the wife’) and Mr Spurling (‘the husband’) are engaged in Family Law property proceedings following the breakdown of their marriage.

2. The husband’s parents have been joined as interveners to these proceedings.

3. The matter came before me on 13 December 2017 and one of the issues was the appointment of a valuer to value a property.

4. On that day I directed the solicitors to either agree on a single expert or make brief written submissions to the court in relation to the appointment of an expert.

5. On Tuesday 19 December 2017 I received, on behalf of the wife, six pages of written submissions and an affidavit of the wife sworn 19 December 2017.

6. I was asked to have regard to a reply filed 12 December 2017 and affidavit filed 23 November 2017.

7. The affidavit of 19 December 2017 contained almost six typed written pages of material and ten pages of annexures.  Neither the submissions nor the affidavit material was brief.

8. The solicitor for the husband filed his submissions which contained nine typed pages of material and relied upon an affidavit of the husband’s solicitors of some four typed pages and about twenty one pages of annexures.  This was in relation to the selection of the valuer.

9. Each of the valuers nominated have qualifications sufficient to undertake the work of valuing the properties.  The fees offered by Mr G totalled $12,100.

10. The wife, in her submissions, submitted that it ought to be Mr H.  Mr H’s fees will be $19,250.  A difference of about $7,000.

11. Both valuers are qualified and as such, in those circumstances, I have appointed Mr G as single expert for the purpose of valuations.

12. In his submissions, the solicitor for the husband asserted I ought to read a series of documents for the appointment of a valuer.  I think not.

13. I have read the curricula vitea of the valuers and made an appropriate decision.  The court did not invite the parties to provide affidavit material, however they did so. 

14. The submissions and affidavits were well beyond what was necessary or proportionate in this case.  As such I will not permit the legal practitioners to charge for the fees for the preparing of the submissions or the affidavits filed with them.  I will make that direction.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on

16 January 2018.

Associate:     

Date:              21 December 2017