Tang & Fan
[2022] FedCFamC1F 834
Federal Circuit and Family Court of Australia
(DIVISION 1)
Tang & Fan [2022] FedCFamC1F 834
File number(s): SYC 6104 of 2015 Judgment of: CHRISTIE J Date of judgment: 31 October 2022 Catchwords: FAMILY LAW – APPOINTMENT OF SINGLE EXPERT VALUER – Where the parties were directed to jointly appoint a single expert valuer – Where the parties are unable to agree and seek directions from the Court. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 7.03, 7.05, 7.18. Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 20 October 2022 Place: Sydney Solicitor for the Applicant: Litigant in Person Solicitor for the Respondent: Litigant in Person ORDERS
SYC 6104 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TANG
Applicant
AND: MS FAN
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
31 October 2022
THE COURT ORDERS THAT:
1.Mr G be appointed as single expert valuer to prepare a report for the Court.
2.Within seven days of the date of these orders, the applicant is to send the single expert a letter of instruction signed by both parties in the form set out in annexure “A”.
3.The parties are to share the costs of the single expert equally up to $1,100 with the wife to fund any amount in excess of $1,100.
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 Tang & Fan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
The applicant husband and respondent wife are involved in proceedings for adjustment of property interests following the breakdown of their marriage.
The parties have completed property proceedings in Country B. The proceedings before this Court are concerned primarily with the assets of the parties in Australia.
The matter has come before the Court on an interlocutory basis because the parties have been unable to consensually progress the appointment of a real estate valuer, as single expert, to value a property in Sydney, Australia.
In order to ensure that the matter progresses to final resolution it is necessary for me to determine which expert should be appointed and the terms of engagement.
The law
Expert witnesses are governed by Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
Rule 7.03(3) of the Rules provides that “a party must not communicate unilaterally with a single expert witness, except as permitted by these Rules”.
Rule 7.03(4) requires any communications with a single expert be provided to all parties simultaneously.
Rule 7.05 gives the Court the power to appoint a single expert from those nominated by the parties if they cannot agree.
If the parties cannot agree on the instructions to the single expert the Court may give directions about the form and content of any instructions: r 7.05(f) of the Rules.
Consideration
The parties tried to agree on the appointment of an expert in early 2022.
To give some idea of the lack of trust the parties have in one another, they cannot agree about the address of the property. Mr Tang (“the husband”) says it is C Street, Suburb D. Ms Fan (“the wife”) says it is E Street, Suburb D. They both agree it is the one property. The valuer will be informed that the one piece of property has two street addresses.
In early 2022 the wife nominated three valuers. The husband selected from those valuers a firm of valuers: F Pty Ltd (“F Pty Ltd”). Subsequently the husband withdrew his agreement to F Pty Ltd on the basis of his concern that the wife had communicated with that firm.
As I understand the submissions, the husband is concerned that F Pty Ltd received information from the wife in these proceedings that she would meet any shortfall in fees should the husband fail to do so. As best I can tell the husband was concerned that, as a consequence of this representation, he could not be confident that the proposed single expert would bring an unbiased mind to the exercise of undertaking a valuation, that is the single expert may value the property in a manner which was favourable to his former wife.
The wife agrees that she spoke to an employee of F Pty Ltd – not the valuer - about the cost of the valuation report. She said that she would guarantee that, should her former husband fail to pay his share of the fee, she would make the payment.
It is not suggested by the husband that the wife had any discussion with the valuation firm about the value of the property or about any issue save the payment of the costs of the report.
The wife seeks that Mr G (“Mr G”) of F Pty Ltd be appointed as single expert. It is not suggested she has had any contact with Mr G. The wife prefers Mr G as he has significant experience as a valuer. The husband agrees Mr G is qualified. The husband’s opposition to the appointment of Mr G is two fold:
(1)Concern about the wife having spoken to F Pty Ltd; and
(2)The cost of valuation.
Prior dealings
The Rules impose a duty on a single expert such that the expert witness’s duty to the Court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness: r 7.18(2).
The requirement that communication of instructions be in writing and forbidding unilateral communication is designed to increase trust and confidence in the process and protect the integrity of the evidence. The parties and the Court will have confidence that all know what material the expert has had access to in preparing the report.
From time to time there will be the need for communication between the lawyers (and in this case the parties acting for themselves) to clarify matters such as timing and fees. In this case that communication was not with the proposed single expert but with someone in an administrative capacity in the office of the single expert. Ideally such communication should remain in writing (for example by email) and be copied to all parties. The wife freely admits that she had discussions about payment of the cost of the report with the office. She has not communicated with the single expert. Given the nature of the husband’s concern, I am comfortably satisfied that the wife’s queries have not fallen foul of the Rules and will not jeopardise the independence and integrity of a report by Mr G.
Cost of Valuation
It is true that the husband proposes a valuer who is cheaper. The husband would be required to pay $220 more if Mr G is appointed over the husband’s preferred valuer Mr H but that is understandable given their significant disparity when it comes to experience in the field. I am not confident that the valuer proposed by the husband should be selected merely because he is cheaper. In reaching that conclusion I place reliance upon the fact that the husband originally agreed to Mr G and withdrew his consent only following concern that the wife had had communication with the office.
Some time has passed since the wife’s initial inquiries concerning the costs of the report. I will make an order that each party pay half but in the event that the report costs more than $1,100 I will make the wife responsible for the amount which is in excess of $1,100 consistent with her submissions.
It follows that I will appoint Mr G as single expert witness because he has the qualifications and I have concluded that his independence is not impugned by the wife’s inquiries about his fees.
The parties have not been able to agree about the terms of the letter of instruction. In order to ensure the matter progresses I have settled the letter of instruction on the basis of the parties’ evidence.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 31 October 2022
Annexure A
Court file number: SYC6104/2015
Mr G
F Pty Ltd
By email: …@...Dear Mr G,
Re: Tang & Fan Family Law single expert valuation
The applicant in the proceedings is Mr Tang (“the husband”). The respondent in the proceedings is Ms Fan (“the wife”).
The husband and wife are representing themselves in this case and their contact details appear at the foot of this letter of instruction.
The husband and wife are providing this joint letter of instruction in accordance with an order of the Court appointing you as single expert for the purpose of preparing a report for the Court in respect of the following property:
E Street, Suburb D NSW also known as C Street, Suburb D NSW (lot …).
You have been appointed pursuant to Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Family Law Rules”). Please find enclosed:
(a)Court brochure, expert witnesses in family law; and
(b)Division 7.1.4, 7.1.5 and 7.1.6 of the Family Law Rules.
Your firm provided a quotation for $1,100. We confirm that the costs of your report are to be shared equally between the parties. Please forward an invoice to each party for half of your fee.
Please advise in writing the timeframe for completion of the report and make any request for documents you may require from each party in writing copied to both parties. Thank you for your assistance.
Please make the arrangements for inspection in writing addressed to both parties. Both parties understand that you will not be seeking their input clarifying the inspection itself and all instruction on that day will be limited to facilitating access.
Yours faithfully,
Mr Tang Ms Fan
…@... …@...
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