Yamikani & Ain
[2024] FedCFamC1F 24
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yamikani & Ain [2024] FedCFamC1F 24
File number: SYC 1342 of 2020 Judgment of: CHRISTIE J Date of judgment: 31 January 2024 Catchwords: FAMILY LAW – EVIDENCE – Application to adduce expert evidence – Valuation of real property – Where a party unilaterally engages an expert to prepare an adversarial report – Where the experts are $200,000 apart in their respective valuations of the same property – Where the value of the property is an issue in dispute and relevant to the determination of proceedings – Where the amount the valuers are apart in their valuations is not trivial – Orders requesting a joint conference of the experts – Leave to rely on the adversarial report granted. Legislation: Evidence Act 1995 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.02 and r 7.11
Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 30 January 2023 Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Gordon & Barry Lawyers Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Cunningham Legal ORDERS
SYC 1342 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR YAMIKANI
Applicant
AND: MR AIN
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
31 JANUARY 2024
THE COURT ORDERS THAT:
1.The applicant have leave to rely on the report of Mr C attached to the affidavit filed 10 January 2024.
2.The applicant provide Mr B with a copy of the Affidavit of Mr C filed 10 January 2024 forthwith if not previously supplied.
3.The applicant provide to Mr C and Mr B forthwith:
(a)Experts’ Conferences – Guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia;
(b)A request that the experts confer by phone as soon as practicable;
(c)A request that Mr C and Mr B reach agreement on outstanding issues if practicable;
(d)A request that Mr B prepare a Joint Draft Statement which includes a list of the issues which are agreed and not agreed and identify the reasons for disagreement on any issue, to be provided to Mr C as soon after the conference as practicable;
(e)A request that Mr C provide the Finalised Joint Statement to the parties after review by him as soon as practicable.
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 a pseudonym Yamikani & Ain has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
On 30 January 2024 the applicant made an oral application for leave to adduce expert evidence from Mr C, real property valuer.
The respondent did not oppose leave being granted to make the oral application but opposed the granting of leave to lead the evidence.
The parties had historically engaged Mr C to provide a joint valuation of the subject property D Street, Suburb E (“the Suburb E property”) in 2021. Mr C valued the property at that time at $1.5 million.
In November 2023 Mr B was selected by the parties as an alternative single expert. He produced a valuation report for the Suburb E property as at December 2023 of $1.4 million.
The applicant engaged Mr C to again value the Suburb E property as at December 2023 and he was provided with Mr B’s valuation. Mr C’s valuation provides a value of the Suburb E property as at December 2023 of $1.6 million.
The receipt of expert evidence is governed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the provisions of the Evidence Act 1995 (Cth).
The Rules are plainly designed to curtail expert evidence but not at the expense of a just outcome.
Rule 7.02 of the Rules says that evidence should be restricted to that which is necessary to resolve or determine a proceeding.
In the context of this case, one party asks that I make an order for sale of the Suburb E property. If I make that order, then it is less important for me to identify with precision the value of the property because the value will be set by the market. The other party asks that he be permitted to retain the property. If that order is made it will be important to know the value of the property since it will form some or all of his entitlements under the order.
The value of the property may be significant if I make an order permitting the respondent to retain the property but also make orders which depart from those which he seeks. In that case, it may be important to understand if he can realistically retain the property.
Plainly, at this preliminary stage, the value of the Suburb E property is both itself an issue in dispute in the proceedings and relevant to determination of the proceedings overall.
Rule 7.11 governs applications for permission to adduce expert evidence.
I am obliged to consider any additional costs. This factor does not loom large since the applicant has engaged the proposed expert and would be responsible for any attendant costs. I am also not persuaded that the leave will impact on the timing of the trial.
I accept the concession by the applicant that this is not a complex issue.
Both Mr B and Mr C are appropriately qualified and it does not appear on its face that one or other of them is possessed of specialised knowledge or information unknown to the other.
Counsel for the applicant highlighted:
(a)The differences in the approach to the comparable sales methodology which emerge from the two reports – namely Mr C’s analysis of price per square metre;
(b)The decision taken by the experts to rely on different market comparables; and
(c)The $200,000 difference in ultimate opinion (and its significance, at least on one view in this case)
as supporting leave being granted.
Senior counsel for the respondent said that these matters were not the subject of questions to the expert under the Rules and could be the subject of cross-examination. This submission is factually accurate. However, if cross-examination undermines the single expert value then the Court may be faced with two choices – sale of the property or adjournment to (ironically) permit further expert evidence.
In this case the questions which were put to Mr B seem to be more appropriately classified as cross-examination, as opposed to clarification, and the responses of Mr B do not necessarily clarify his expressed opinion.
I am sympathetic to the argument that the court should be slow to appoint a second real property valuer in circumstances where the existing valuer’s methodology (comparable sales) is the same as the proposed valuer and both valuers acknowledge that the value expressed is usually within a range.
Here however, it seems expedient in the interests of justice to order a joint conference and allow the filing of an adversarial report to provide the Court with the opportunity for the parties to test the evidence of both valuers on what – at this stage of the proceedings – is an important issue for determination and where a $200,000 difference cannot be dismissed as “trivial”.
I therefore propose to permit the report.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 31 January 2024
0
0
2