This case involves the Wife’s application to adduce adversarial evidence as to the value of farming land and the matrimonial home.
The Court allowed the applicant to adduce the adversarial expert evidence.
The relevant facts and considerations
- The Husband contended that the property pool was approximately $18,000,000. The Wife contended that it was approximately $28,000,000.
- There was a dispute about the former matrimonial home (the home) and farming land (the land). One of the issues is whether the land will be rezoned and whether it is subdividable.
- The home was valued by the jointly appointed single expert at $4,500,000 and the land at $8,000,000 at current market value and a value of between $75,000,000 and $90,000,000 assuming it could be rezoned and subdivided.
- The Wife obtained adversarial expert evidence valuing the home at $4,150,000. The Wife obtained a critique of the valuation of the land, and her expert assessed the current market value at $13,700,000 and a value of $126,500,000 assuming it could be rezoned and subdivided.
- The Wife contended in support of her application to adduce evidence from an adversarial expert (in summary) that:
- The land
- The valuations were $5,700,000 apart as to market value and approximately $50,000,000 apart at the lower end of range in the event of subdivision.
- There were comparable sales not known by the single expert.
- The single expert did not compare ‘like with like’.
- The single expert made assumptions beyond his expertise and there were issues in relation to his calculations of land area.
- The home
- The valuers disagree about the internal and external condition of the home, the number of bedrooms, the appropriateness of comparable sales and the difficulties of vehicular access.
- The Husband contended (in summary) that:
- There was a conflict of interest in the Wife’s adversarial expert acting.
- The Wife’s adversarial expert did not depose to any substantial body of opinion contrary to the single expert.
The outcome
The Court stated:
'The choice of expert is very much a lottery. The parties do not know when they select their expert what the ultimate opinion might be. Despite some appearance to the contrary, there is no magic or exalted status that accrues the single expert by virtue of the lottery that selects them. It is for that reason that the Rules permits a party to seek leave to tender and/or adduce evidence from another expert'.
'Sight must not be lost of the fact that the Court’s determination is to ensure justice is accorded to each of the parties. The Rules are not to be construed as a straightjacket restricting the interest of justice, rather, they are designed to serve the interest of justice'.
- While it was already established that a difference of opinion as to value doesn’t establish a basis for an adversarial expert, that 'the more substantial the difference, in the absence of challenge as to expertise and/or experience, calls for closer attention to the matters that are said to be the basis for the contrary opinion'.
- The Court could not be satisfied that having one expert would ensure the interest of justice are not compromised and granted leave for the Wife’s to adduce evidence from her adversarial expert.
Issues to note
- The challenge of single expert evidence in larger property pools is becoming increasingly more common, despite the Family Law Rules requiring single expert evidence. It is important that financial advisers and family lawyers work closely together to carefully review family law valuations and make a determination about whether adversarial expert evidence should be obtained and if so whether leave should be sought to rely upon that evidence.
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