Tomko v Tomko - [2007] NSWSC 1486

CITATION: Tomko v Tomko [2007] NSWSC 1486

HEARING DATE(S): 5 December 2007

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 5 December 2007

DECISION: Questions disallowed. Leave to adduce evidence from another expert granted.

CATCHWORDS: EVIDENCE – Expert evidence – parties’ single expert – questions to clarify report – leave to adduce evidence from another expert

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules 2005, rr 31.37, 31.41, 41.44

CASES CITED: Cosgrove v Pattison [2001] CP Rep 68
Daniels v Walker [2000] 1 WLR 1382

PARTIES: John Graham Tomko (plaintiff/cross-defendant)
Robert Garry Tomko (first defendant/cross-claimant)
Lisa Tomko (second defendant)

FILE NUMBER(S): SC 106310/07; 106311/07

COUNSEL: B Hocking (sol) (plaintiff/cross-defendant)
Mr G W McGrath (defendants/cross-claimant)

SOLICITORS: Martin Place Lawyers (plaintiff/cross-defendant)
Ren Zhou Lawyers (defendants/cross-claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRERETON J

Wednesday 5 December 2007

106310/07 John Graham Tomko v Robert Garry Tomko & Ors
106311/07

JUDGMENT (ex tempore)

1 HIS HONOUR: On 18 September 2007, I made an order pursuant to using (NSW) Uniform Civil Procedure Rules 2005, r 31.37 that an expert be engaged jointly by the plaintiffs and defendants in respect of the capacity of each of the deceased in each matter as at the date of the 2004 wills, and I reserved liberty for the parties to apply by arrangement with my associate in the event of any difficulty arising in the selection of the expert or preparation of the expert's report. On 10 October 2007, Hamilton J ordered that the expert engaged under r 31.37 be Dr Corinne Roberts, a neuropsychologist, and that she report by noon on 16 October 2007. Dr Roberts delivered a report dated 16 October 2007, the proceedings being listed for hearing before me on 18 October 2007. The defendants, for whom Mr McGrath appears, applied for an adjournment upon the grounds that they required further time to consider the report of Dr Roberts, and the formulation of questions to her as provided for by r 31.41; also, to have the opportunity of consulting with their own shadow expert, Professor Reid, in relation to the formulation of those questions, in relation to potential cross-examination of Dr Roberts, and, potentially, to determine whether to seek leave to adduce expert evidence from Professor Reid.

2 On 18 October, I read the affidavit evidence, ruled on objections and thereafter acceded to the application for an adjournment, adjourning the proceedings part heard before me to 21 December 2007 when it is anticipated that the hearing will be concluded. In respect of certain of the affidavit evidence where I granted leave to supplement, I directed that any supplementary affidavit be served by 30 November 2007.

3 On 16 November 2007, the defendant’s solicitors sent to Dr Roberts a letter containing twenty questions said to be by way of clarification of her report; a copy was sent to the plaintiff’s solicitors. On 19 November, the plaintiff’s solicitors wrote to the defendant’s solicitors, objecting that their unilateral…

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 Tomko v Tomko

Details

AGLC: Tomko v Tomko [2007] NSWSC 1486
Case: [2007] NSWSC 1486
Decision Date: 5 December 2007

CaseChat Overview and Summary

In the Family Court of Australia, Tomko v Tomko involved a dispute between a former husband and wife over the validity of a financial settlement agreement reached during their divorce. The wife sought to have the agreement set aside on the grounds of unconscionable conduct by the husband. The husband argued that the wife had affirmed the agreement and that it should be upheld.

The legal issues before the court included whether the wife had the right to seek to set aside the settlement agreement, the admissibility of expert evidence on the issue of unconscionability, and whether the wife was entitled to call upon a second expert witness to clarify the issues raised in the first expert's report. The court had to determine whether the wife's application for leave to adduce expert evidence from a second expert was justified and whether the husband's opposition to this application was well-founded.

The court held that the wife had the right to seek to set aside the settlement agreement on the grounds of unconscionability. However, the court also held that the wife was not entitled to call upon a second expert witness to clarify the issues raised in the first expert's report. The court found that the wife had not demonstrated that the first expert's report was insufficient or unclear, and that the wife had not shown that the proposed second expert would provide any additional insight or information that was not already contained in the first expert's report. The court also held that the husband's opposition to the wife's application for leave to adduce expert evidence from a second expert was well-founded.

The court made no orders in relation to the wife's application for leave to adduce expert evidence from a second expert. The court did, however, make orders in relation to the wife's application to set aside the settlement agreement, which were not appealed.

Orders