Wakefield and Wakefield - [2015] FamCA 851

FAMILY COURT OF AUSTRALIA

WAKEFIELD & WAKEFIELD

[2015] FamCA 851

FAMILY LAW – PROPERTY SETTLEMENT – Interlocutory Proceedings – Where the wife sought to adduce adversarial expert evidence – Where the wife raised questions with the court appointed Single Expert and continued to be concerned by points of difference – Where those matters are the disparity in valuation in the context of the size of the asset pool and reasons for the disparity and genuine differences within the expertise of the experts – Wife granted permission to rely on the adversarial report – Where the two experts are to participate in a conclave

Evidence Act 1995 (Cth), ss 56
Family Law Act 1975 (Cth), ss 123
Family Law Rules 2004 (Cth), rr 15.42, 15.49, 15.52

Darrow & Darrow [2015] FamCA 597
Lister & Lister (2015) 52 Fam LR 174
Moss & Moss [2012] FamCA 538

APPLICANT:

Ms Wakefield

RESPONDENT:

Mr Wakefield

FILE NUMBER:

NCC

2589

2014

DATE DELIVERED:

30 September 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

29 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Kearney (SC)
SOLICITOR FOR THE APPLICANT:	Fox Legal

COUNSEL FOR THE RESPONDENT:

Mr Rugendyke

SOLICITOR FOR THE RESPONDENT:

Penny Waters Armstrong Legal

Orders

Leave is granted to the wife to adduce evidence in the proceedings concerning the value of the rural property “B” via C Town in the State of New South Wales being the report of 27 July 2015 prepared by Mr D, Certified Practising Valuer.
That within 28 days of the date of these orders or such other date as may be agreed between the parties in writing, the experts, Mr E of F Pty Ltd and Mr D of D Valuations:
(a) Confer in relation to their opinions as to:
(i)The value of B on a per hectare basis; and
(ii)To the Dry Sheep Equivalent applicable to B for the purpose of the valuation exercise; and
(b)Within 28 days after the experts’ conclave pursuant to (a) above, prepare a joint report identifying the areas of agreement and disagreement addressing such matter as include:
(i)The basis on which the land at B is classed;
(ii)The value to be ascribed to each class of land;
(iii)The DSE applicable to B for the purpose of assessing the value of the land;
(iv)The relevant sales evidence to be considered when assessing the value of B; and
(v)Such other matters as the valuers or either of them considers relevant in assisting the court to determine the value of B.
The cost of Mr E attending at the experts’ conclave and undertaking the work required by these directions be borne equally by the parties.
The cost of Mr D attending at the experts’ conclave and undertaking the work required by these directions be borne by the wife.
That the costs of the wife be considered with the costs of the cause.
That the proceedings be listed for directions (and consideration of allocation of dates for final hearing) on Wednesday 4…

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 Wakefield and Wakefield

Details

AGLC: Wakefield and Wakefield [2015] FamCA 851
Case: [2015] FamCA 851
Decision Date: 30 September 2015

CaseChat Overview and Summary

In the matter of *Wakefield and Wakefield*, heard before Cleary J, the wife sought leave to adduce further evidence concerning the valuation of a rural property. The dispute centred on the accurate valuation of this property, which was a significant asset in the proceedings.

The primary legal issue before the court was whether to permit the wife to introduce a valuation report prepared by Mr D, a Certified Practising Valuer, dated 27 July 2015. This evidence was crucial for determining the value of the rural property, which was a key component of the overall asset pool in the proceedings.

Cleary J granted the wife leave to adduce the valuation report. The court then issued directions aimed at facilitating a more precise and agreed valuation of the property. These directions mandated a conference between two expert valuers, Mr E and Mr D, to discuss and identify areas of agreement and disagreement regarding the property's value per hectare, its Dry Sheep Equivalent (DSE), the classification of its land, relevant sales evidence, and any other pertinent matters. The court also made orders concerning the costs associated with these expert consultations and directed that the matter be listed for further directions and the allocation of hearing dates.

Orders

Orders of the court

Leave is granted to the wife to adduce evidence in the proceedings concerning the value of the rural property “B” via C Town in the State of New South Wales being the report of 27 July 2015 prepared by Mr D, Certified Practising Valuer.

That within 28 days of the date of these orders or such other date as may be agreed between the parties in writing, the experts, Mr E of F Pty Ltd and Mr D of D Valuations:

(a) Confer in relation to their opinions as to:

(i) The value of B on a per hectare basis; and

(ii) To the Dry Sheep Equivalent applicable to B for the purpose of the valuation exercise; and

(b) Within 28 days after the experts’ conclave pursuant to (a) above, prepare a joint report identifying the areas of agreement and disagreement addressing such matter as include:

(i) The basis on which the land at B is classed;

(ii) The value to be ascribed to each class of land;

(iii) The DSE applicable to B for the purpose of assessing the value of the land;

(iv) The relevant sales evidence to be considered when assessing the value of B; and

(v) Such other matters as the valuers or either of them considers relevant in assisting the court to determine the value of B.

The cost of Mr E attending at the experts’ conclave and undertaking the work required by these directions be borne equally by the parties.

The cost of Mr D attending at the experts’ conclave and undertaking the work required by these directions be borne by the wife.

That the costs of the wife be considered with the costs of the cause.

That the proceedings be listed for directions (and consideration of allocation of dates for final hearing) on Wednesday 4 November 2015 at 9.30 am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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