When couples separate, one of the most important issues to resolve is the division of property. This can be a complex and challenging process, especially when there are assets of significant value. In some cases, the parties may disagree on the value of an asset, which can lead to delays and additional costs.
If the parties cannot agree on the value of an item of property it will need to be formally valued by a single expert witness. For real estate this may be a registered valuer, or a business valuation is usually undertaken by a forensic accountant. Formal valuations can be costly and there are specific rules which need to be followed for the reports to be able to be relied upon in any court proceedings. Accordingly, it is important that legal advice is obtained prior to engaging any expert valuation. In addition, the expert must abide by a code of conduct.
A single expert witness is appointed by the parties jointly and the expert is not able to take instructions from either party directly. All instructions must be in writing from both parties. This can be of benefit where there are concerns that one party might try to unduly influence the expert.
It is possible that, once the report is received, one or both parties do not agree with the expert’s opinion. The rules prevent a party from adducing evidence from another expert on that issue without first obtaining the Court’s permission.
So, where does this leave a party who does not agree with the report? There are a few options.
Firstly, the parties may seek a conference with the expert for the purpose of clarifying the report. There are specific timeframes for the arrangements for the conference to be made, so it is important to seek prompt legal advice. The purpose of the conference is not to interrogate the expert witness, but rather to clarify the valuation.
Secondly, the parties may ask clarifying questions to the expert witness. This can be done following a conference, or instead of a conference. Written questions can only be asked once and for the purpose of clarifying the report. Further, the questions cannot be vexatious/oppressive or require the expert to undertake an unreasonable amount of work to answer.
Costs will be payable to the expert for the conference and/or clarifying questions so this will need to be weighed up against the concerns the party has as to the valuation. That is, there must be evidence that the valuation is incorrect rather than a mere belief that there is an error.
It may be that the concerns a party has with the valuation can be dealt with by way of cross-examination at a court hearing.
In some cases, a party may obtain evidence from a second expert, known as an adversarial expert. Leave must be obtained from the Court before the adversarial expert evidence can be relied upon at Court and there are rules associated with their appointment and report. In addition, they may be required to conference with the single expert prior to any court hearing.
The rules regarding expert evidence can be complex and it is important that you have an appropriately qualified family lawyer to assist you determine the best path for your circumstances.
It is important to note that the court is not bound by the valuation reports. The court will consider all of the evidence, including the valuation reports, and make a decision on the value of the asset based on what it considers to be fair and equitable.
Here at Gillard Family Lawyers, we have experienced solicitors in the area of family law to help you manage your trust and property settlement matters. We pride ourselves on empathy and compassion, so if you need legal help with a Family Law matter, simply get in touch with our friendly team.
