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  • Unreported Judgment

D v S

 

[2009] QSC 446

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

D v S [2009] QSC 446

PARTIES:

D

(applicant)

v

S

(respondent)

FILE NO/S:

SC No 2550 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

9 December 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

8 December 2009

JUDGE:

Margaret Wilson J

ORDER:

Application dismissed

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – EVIDENCE – EXPERT EVIDENCE – where proceeding is between former de facto partners pursuant to Part 19 of the Property Law Act 1974 (Qld) – where applicant seeks various interlocutory orders – where interlocutory dispute has been resolved except whether applicant should have leave to rely on an affidavit of expert – where order by consent for single expert – where further order by consent for joint appointment of expert to update valuations –where applicant relies on r 429N(3)(a)(i) of the Uniform Civil Procedure Rules 1999 (Qld) – whether Court should allow party to call further expert

Property Law Act 1974 (Qld), Part 19
Uniform Civil Procedure Rules 1999 (Qld), r 429N(1), r 429N (3)(a)(i), r 429H(6)

COUNSEL:

R Hamwood for the applicant.

M Bland for the respondent.

SOLICITORS:

Edwards Lawyers for the applicant.

Harrington Family Lawyers for the respondent.

 

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MARGARET WILSON J 

 

No 2550 of 2008

D Applicant

and

S Respondent

 

BRISBANE 

 

..DATE 09/12/2009

 

JUDGMENT

HER HONOUR:  This is a proceeding between former de facto partners pursuant to part 19 of the Property Law Act. 

By application filed on 13 November 2009 the applicant Ms D seeks various interlocutory orders.  The interlocutory dispute has been resolved in all respects but one - whether she should have leave to rely on an affidavit of Scott Iveson, valuer, filed 13 November 2009.

Mr Iveson valued two properties:

6-8 Kyabra Street, Fortitude Valley; and

280 Wights Mountain Road, Wights Mountain.

Those valuations were performed at the request of the applicant. 

The parties had previously consented to orders:

1)appointing Barry Stanaway of John Watt and Associates as the single expert to value the real property (PD McMurdo J 4 April 2008); and

2)that they jointly instruct Mr Stanaway to provide updated valuations (White J 19 February 2009).

Rule 429N of the Uniform Civil Procedure Rules provides that where the Court appoints an expert in relation to an issue in a proceeding, the expert is to be the only expert to give evidence on the issue unless the Court otherwise orders.

Sub-rule (3) provides -

"However, the Court may, on its own initiative or on application by a party, appoint another expert (the other expert) to prepare a report in relation to the issue if-

(a) after receiving a report from the expert originally appointed (the first expert), the Court is satisfied-

(i) there is expert opinion, different from the first expert's opinion, that is or may be material to deciding the issue; or

(ii) the other expert knows of matters, not known by the first expert, that are or may be material to deciding the issue; or

(b) there are other special circumstance."

By rule 429H(6), where the parties jointly appoint an expert to give evidence on an issue, he is the only expert who may give evidence on the issue unless the Court otherwise orders.

The valuation evidence may be summarised as follows -

Property

Stanaway

14 May 2008

Stanaway

14 April 2009

Iveson

17 August 2009

Wights Mountain 

$800,000.00

$800,000.00

$1,000,000.00

Unit 2E

Glenfalloch

$260,000.00

$275,000.00

 

6 Kyabra Street 

Newstead

$2,800,000.00

$2,300,000.00

$3,200,000.00

Brendale

$850,000.00

$1,100,000.00

 

Caboolture

$2,080,000.00

$1,900,000.00

 

Rural properties

$950,000.00

$1,000,000.00

 

The applicant relies upon rule 429N(3)(a)(i) - that there is expert opinion different from the first expert's opinion that is or may be material to deciding the issue.  In submissions her counsel referred to Mr Iveson's report about the Kyabra Street property - in particular page 15 paragraph 9.0 where he expressed an opinion in relation to:

-yield;

-rate per square metre;

-relevant comparable sales; and

-assessment of softening in the market

different from that of Mr Stanaway.

The applicant relies also on special circumstances.  Her counsel points to the course of communication between the parties' solicitors and Mr Stanaway and to the forensic accountant Mr Box's input into that communication, and submits that she is justifiably concerned as to the impartiality of Mr Stanaway and as to the integrity of the instruction and reporting process.

Counsel for the applicant submitted that there had been some urgency in obtaining the updated valuations, because on 19 February 2009 White J had ordered that the parties file a request for trial date by 27 March 2009.  I note in passing that such a request has still not been filed. 

On 4 March 2009 the applicant's solicitors received from the respondent's solicitors a draft joint letter of instruction addressed to Mr Stanaway.  The respondent's solicitors called for a response the next day.  No response was forthcoming.  On 6 March 2009 the respondent's solicitors sent the letter of instructions to Mr Stanaway signed only by them. 

On 10 March 2009 the applicant's solicitors wrote to the respondent's solicitors seeking an amendment to the joint letter of instruction with respect to arrangements for access to one of the properties.

On 12 March 2009 the applicant's solicitors wrote directly to Mr Stanaway referring to "the joint letter of instruction from [the respondent's solicitors] and ourselves in which we seek that you provide updated valuations in this matter."  They went on to give instructions about the bases upon which the Brendale and rural properties were to be valued.  Mr Stanaway responded on 19 March observing that he had not received a copy of the joint letter of instruction of 6 March signed by the applicant's solicitors, and saying that on the assumption it was a joint letter of instruction he would require the letter of 12 March altering his instructions to be signed by the respondent's solicitors before he would alter the basis of his assessments or apportion values to individual areas. 

On 20 March the applicant's solicitors asked Mr Stanaway for a copy of the letter of 6 March.

There was ongoing correspondence about amendment of the instructions in relation to the valuing of the Brendale and rural properties.

On 14 April 2009 Mr Stanaway sent his updated valuations of the Kyabra Street and Wights Mountain properties to the respondent's solicitors.

On 22 May 2009 a notice of change of solicitors for the applicant was filed.

I am satisfied that there was no material input into the communications by Mr Box.

As counsel for the respondent submitted, Mr Iveson did no more than express a different opinion from that of Mr Stanaway.  The solicitors for the respondent were somewhat high-handed in demanding a response to the joint letter of instruction the next day.  But the applicant's solicitors could have responded seeking more time.  They did not do so.  In their letter to Mr Stanaway of 12 March they adopted the joint letter of instruction and sought an alteration not previously foreshadowed.  Viewed objectively, there is not basis for questioning the impartiality of Mr Stanaway or the integrity of the instructing and reporting process.  Special circumstances have not been made out. 

I am not satisfied that the further opinion of Mr Iveson would be material to deciding the question of valuation.  This is simply a case of the applicant having agreed to a joint valuation and then not liking the joint valuation she received.  It is not necessary to ensure a fair trial of the proceeding that there be more than one expert on the value of the real estate.  To allow the applicant to rely on the evidence of another expert in the circumstances would unnecessarily increase the costs of the litigation. 

The application is refused.

...

HER HONOUR:  Order as per draft.

Close

Editorial Notes

  • Published Case Name:

    D v S

  • Shortened Case Name:

    D v S

  • MNC:

    [2009] QSC 446

  • Court:

    QSC

  • Judge(s):

    M Wilson J

  • Date:

    09 Dec 2009

Litigation History

No Litigation History

Appeal Status

No Status