Vida & Vida (No 3)
[2025] FedCFamC1F 191
•12 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vida & Vida (No 3) [2025] FedCFamC1F 191
File number: SYC 1533 of 2019 Judgment of: ALDRIDGE J Date of judgment: 12 March 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the single expert under r 7.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for the payment of his fees – Where the expert was asked to value entities up to June 2024 – Where the expert had concerns about the accuracy of the 2024 accounts and relied on the 2023 accounts – Where the court has found the 2024 accounts were not a true reflection of the value of the entities – Where the husband relied on the report – Where the husband disputes the charge of interest – Husband to pay the single expert’s fees including interest. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.19 Division: Division 1 First Instance Number of paragraphs: 12 Date of hearing: 12 March 2025 Place: Sydney Solicitor for the Applicant: Marsdens Law Group Counsel for the First Respondent: Ms Wallace Solicitor for the First Respondent: Simone Legal Solicitor for the Second Respondent: Newnhams Solicitors The Third and Fourth Respondents: No appearance required Other – Single Expert: In person ORDERS
SYC 1533 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VIDA
Applicant
AND: MR VIDA
First Respondent
MS B VIDA
Second Respondent
N PTY LTD (and another named in the Schedule)
Third Respondent
MR DD
Other
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
12 MARCH 2025
THE COURT ORDERS THAT:
1.In accordance with Order 1 made upon the delivery of my reasons for judgment on 12 March 2025, the parties are to provide to chambers an agreed minute of order or, failing agreement, individual minutes of order, by 4.00 pm on Monday 31 March 2025.
2.The minutes of order produced in accordance with Order 1 above are to provide for payment by the husband of the single expert’s outstanding fees, including interest.
3.The matter is relisted at 9.30 am on Thursday 3 April 2025.
4.The listing in Order 3 above will be vacated in the event the parties submit an agreed minute of order as per Order 1.
5.By consent, the orders dated 24 March 2023 shall continue in force and effect until the making of final orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Vida & Vida has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
This morning I published reasons for the property orders I intend to make in this matter and will shortly make directions about the timetable for sorting that issue out. Whilst judgment was reserved the single expert in this matter, Mr DD, exercising his entitlement under r 7.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) raised with the court non-payment of part of his fees.
I made directions for the parties to exchange written submissions and evidence on the topic which they have done and this morning I have heard oral argument. As I understand it, the objection to paying the balance of Mr DD’s fees comes down to two things. First, he did not carry out the work he was asked to do, and secondly, he has wrongfully claimed interest.
As to the first, the single expert was asked to advise on the value of N Pty Ltd and a number of other entities up to June 2024. He had the 2023 accounts and he asked for management accounts for 2024. There is a bit of a dispute as to when he got those management accounts, but he certainly ultimately did get the management accounts and ultimately the 2024 draft financial statements as well.
As is apparent from his evidence in the proceedings, Mr DD had some difficulty with these documents. That difficulty is explored in my reasons as to the parties’ property division and for the reasons I gave, I was not prepared to accept the 2024 accounts as a basis for ascertaining the true value of the company, largely because of the extraordinary and unexplained drop in revenue for that year.
It is therefore understandable why the single expert raised issues with the accounts as he did and felt that he was unable to rely on them to do the task initially requested of him. Be that as it may, he completed the report which was relied upon by all parties including the husband.
Included in the correspondence were questions raised by the single expert as to payment of his fees and the husband’s lawyers assured him that he would be paid. They now instruct counsel to argue that he should not be paid for carrying out the work. That is an unfortunate coincidence of fact, it seems to me. It is a sad day when expert witnesses cannot rely on the assurances of lawyers given to them.
In any event, the short point is the work carried out by Mr DD, whether it met the inevitable requirements or not, was relied upon by the husband, amongst others, and I therefore do not see why he should not pay for it.
The second issue is the question of interest. Mr DD was first engaged by a different set of solicitors to those currently instructed by the husband in 2019 and he delivered to them a detailed letter of engagement which included terms as to interest on non-payment of fees. Much later, the current solicitors for the husband sent the single expert a letter of instructions to which he responded by setting out charges and estimates for the various work involved. It could not be described as a letter of engagement.
The question is then whether the initial terms, in effect, applied to the second letter of instruction. Presumably, the husband was aware of the letter of engagement from 2019, and whether his solicitors were aware of it but not him is beside the point as they were his agents. Therefore, the husband had knowledge of the terms and conditions of Mr DD and in sending the later request for further work to be performed by him via his current solicitors, it seems to me it is easy to infer that work would be on the same terms set out in the letter of engagement that was obtained earlier.
I should add, however, that the amount in issue on this question is just over $800 which is presumably more than it has cost each of the parties to argue about it this morning.
In any event, I am satisfied that the single expert ought to be paid and the orders to give effect to my reasons will include such a provision. If it does not, I will select one of the properties owned by the husband and charge it with payment of Mr DD’s fees.
Mr DD has informed me that he has issued three categories of invoice as well as an invoice in respect of his preparation for making the application determined today. All of these invoices should be included in the fees to be paid by the husband.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 28 March 2025
SCHEDULE OF PARTIES
SYC 1533 of 2019 Respondents
Fourth Respondent:
M PTY LTD
0
0
1