Antoun & Antoun (No 5) [2025] FedCFamC1F 605 (13 August 2025)

1. The husband's Application in a Proceeding filed 6 August 2025 seeking to discharge the single expert is dismissed.
2. The final hearing on 15 September 2025 is vacated.
3. The applicant provide to the respondents a copy of the second amended Points of Claim in the format prescribed by Rule 2.52(3) within 14 days of these Orders.
4. The respondents provide the applicant with an amended Points of Defence in the format prescribed by Rule 2.52(3) within 28 days of these Orders.
5. The costs of and incidental to the Application in a Proceeding and the costs thrown away from vacating the final hearing dates be reserved to the next court date.
6. The matter be listed for a case management hearing on Thursday 25 September 2025.
7. Within 28 days of these Orders, each party file and serve an affidavit annexing:

(a) A list of documents disclosed to the other parties;

(b) A list of any further documents sought by way of disclosure; and

(c) A list of the documents requested by Ms AP that they have not yet provided to her.

1. On the next court date, each party ensure their representatives are in a position to address:

(a) The terms of any letter of engagement or retainer agreement for Ms AP or any other single expert and, if not agreed, that the parties include in their affidavits an annexure of a copy of the proposed document by the wife with the proposed amendments clearly marked;

(b) Whether orders should be made requiring the parties to lodge their tax returns for the 2024/2025 year by 1 November 2025 or some other date;

(c) Whether the date for valuations should be changed to 30 June 2025 given that there is a real possibility that those financial statements should be prepared in a manner timely to enable a trial early next year; and

(d) Whether Ms AP should be directed to notify the court in the event that any party fails to provide documents she requests so that the matter may be relisted, and Ms AP be requested to attend in person or by AVL for that further hearing of the matter.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Antoun & Antoun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The first respondent husband filed an Application in the Proceeding on 6 August 2025 seeking orders discharging the single expert in the matter (Ms AP) and for the appointment of a substitute single expert (Ms AR) to value the corporate entities involved in the litigation.
2. The proceedings concern property settlement orders sought by the wife. They are complex as the wife alleges that the husband holds much of the property in companies and trusts and that he has divested himself of title or control over property. There are associated claims pursuant to s 106B of the Family Law Act 1975 (Cth) to set aside transactions and claims in equity with respect to remedial trusts. The claims are pleaded against the 17 respondents in a 67-page Points of Claim document. For present purposes it is unnecessary to traverse the details of all of the different claims.
3. On 6 August 2025, the husband's solicitors wrote to chambers requesting that the matter be urgently listed for an interim hearing as, if the application was granted, Ms AR would require instructions to proceed by no later than Friday 8 August 2025, Friday last week.
4. I listed the matter for an interim hearing on 8 August 2025. At the hearing, the counsel for the husband confirmed that a judgment by 13 August 2025 would be sufficient for the purposes of instructing Ms AR (in the event the application was granted). Based on this information and knowing the parties had a judicial settlement conference listed yesterday, I reserved my judgment on this application until 13 August 2025.
5. The husband's Application in a Case was prompted by an email from Ms AP on 25 July 2025 which indicated that she would not be in a position to complete her valuation report in time for the final hearing, currently scheduled for 15 September 2025. Ms AP's inability to complete the expert report is not caused by any default of hers, rather, the failure of the respondents to provide relevant documents to Ms AP to ensure that she had the necessary information to write her report. Ms AP had indicated on more than one occasion that she required at least 12 weeks from the provision of the financial statements to complete her report. Whilst in the abstract this seems a lengthy period, given the very large number of entities involved and the level of complexity of the structures and claims in this litigation, I am not persuaded that there is anything unreasonable about the time frame that Ms AP has put forward.
6. It is convenient to put the issues in this application into context.
7. The case itself was commenced in 2017. It has had a raft of interlocutory disputes. In late 2017, orders were made first appointing Ms AP as the single expert for the purposes of valuing the various corporate entities and requiring the parties to settle a joint letter of instructions to Ms AP.
8. By 2023, the matter was placed in the docket of a major complex financial proceedings list judge. Orders were made on 14 August 2024 again requiring the parties to settle a joint letter of instruction to Ms AP. On this occasion, that letter of instruction was to be finalised by 15 November 2024. The orders relevantly provided:
   1. By no later than 15 November 2024, the parties shall confer and agree upon a joint letter of instruction to:

a) [Mr AS] of [AT Valuers] for any real property valuations; and > > b) [Ms AP] of [AV Company] for the Trust and Corporate entities.

2. The matter be adjourned to Division 1 of Federal Circuit and Family Court of Australia on 11 March 2025 at 10.00am for Hearing before the Hon. Justice Williams. 3. The parties shall be at liberty to relist the matter before her Honour Justice Williams on 7 days' notice should the parties be unable to agree the joint letter of instruction and/or the parties to be responsible for the costs of the valuations.
3. The draft letter of instruction was only provided by the wife on the 14 November 2024. Following this the husband sought changes, which were agreed to by the wife by the 18 November. One of the other party's solicitors sought changes on the 18 November and the solicitor representing what is referred to in litigation as AU Group, sought changes on 11 December 2024.
4. On 17 January 2025, a joint letter of instruction was provided to Ms AP. Ms AP quickly responded. On 21 January 2025, she wrote back to the parties informing them that in order to proceed, she needed joint instructions as to the date at which the valuation was to address the value of the entities for the purposes of the report. She also required a long list of documents, financial statements, and income tax returns for the three years prior to the date that would be chosen to be the date for the valuation. The single expert also appears to have set up a system for the parties to be able to electronically upload the documents required by her and arrangements were subsequently put in place for the various persons that required it to have access to make those uploads.
5. On 29 January 2025, the wife's solicitors wrote to the parties asking them when they would provide the documentation requested by Ms AP. On 10 February the wife's solicitors forwarded to the respondents an updated letter of instruction that included a valuation date and updates to the letter to include some additional parties that had since been joined to the proceedings. On the 19 February, the wife's solicitors sent a further updated letter of instruction to the respondent solicitors and also sought an update as to the provision of the financial statements requested by Ms AP.
6. On 20 February Ms AP again requested the parties to provide financial statements and income tax returns. On the 21 February, the wife's solicitors again asked the respondents' solicitors for an update on when they might comply with Ms AP's request.
7. By 28 February Ms AP wrote to the parties urgently requesting instructions as to the valuation date to be adopted for the report as well as the financial statements and tax returns. She indicated that a number of documents had still not been provided. At that stage the final hearing was listed for the 26 May 2025 and Ms AP advised the parties that she would need to commence working on the matter by the 3 March 2025 in order to complete the report in a timely fashion. It is clear that at least by that point, there would have been no doubt by the parties about the reasonable length of time it would take Ms AP to carry out the work once she had actually received all of the relevant documents.
8. On the 11 March 2025, Ms AP sent a letter setting out that she was unable to finalise the report by 26 May as she had not received all of the financial statements. The annexure to that letter set out a large list of outstanding items that Ms AP required. She again required the valuation date, she reiterated she needed twelve weeks to do the work, and she set out that she would be able to give fee estimates only after she had actually seen the documents to be able to peruse them and estimate the costs that would be involved in carrying out the work. By 13 March 2025 it appears the parties had finally agreed on a valuation date being 31 December 2024, which was acknowledged by Ms AP on 14 March in an email.
9. The retainer agreement and arrangement for fees led to a further protracted dispute between the solicitors. Remarkably however, the documents required by Ms AP were still not all uploaded to her portal and even as at today have not all been produced. It seems that the disputes that ensued as to the form of the retainer agreement and arrangements for payment were used by the 2nd, 3rd, 9th, 10th, 11th, 13th, 14th, 15th and 17th respondents as a basis for refusing to provide documents to the expert.
10. Fortunately for the parties, the trial dates of 26 May 2025, were vacated administratively. However, the valuation issues were not brought to the attention of the court. On 18 March, it seems that the solicitors for the AU Groupwrote to Ms AP stating that they needed until 14 April 2025 to provide their financial reports and that they had only just commenced preparing their 2024 tax returns. On the 14 April 2025 the wife's solicitors wrote asking for an update and sent another follow up email on 1 May 2025.
11. By 5 June the single expert notified the parties that she needed to begin working on the report in order to meet the trial date that was now set for September.
12. The applicant eventually sought a directions hearing which proceeded before Anderson J on the 9 July 2025. His Honour made orders that resolved any payment issues and provided that:

(7) Within seven days from the date of these orders, the respondent husband is to provide all outstanding documents as requested by [Mr AS] and [Ms AP] and should any further request be made, the respondent husband shall provide the documents requested or details required as soon as possible, and no later than 7 days from the date of such request or to answer such query.

(8) In the event that the single experts make any further document or information requests of the parties, all parties in the proceedings are to provide the documents or information requested or particulars required as soon as possible, and no later than 7 days from the date of such request or query.

(9) Within 7 days from the date of these Orders, the parties are to execute a further Joint Letter of Instruction to [Ms AP] of [AV Company] for the valuation of:

(a) [PP Pty Ltd] ; and

(b) [QQ Pty Ltd].

(10) By no later than 4pm on 25 July 2025, the 2nd, 3rd, 9th, 10th, 11th, 13th, 14th, 15th and 17th Respondents shall upload to [AV Company's] document portal those documents requested by [Ms AP] with respect to the following entities:

(a) [B Pty Ltd] (Second Respondent);

(b) [PP3 Pty Ltd] (Tenth Respondent);

(c) [AF Pty Ltd] (Eleventh Respondent);

(d) [H Group] (Thirteenth Respondent);

(e) [H6 Pty Ltd] (Fourteenth Respondent);

(f) [QQ1 Pty Ltd] (Fifteenth Respondent);

(g) [Q Pty Ltd] (Seventeenth Respondent).

1. The parties appear to have continued to haggle over the terms of the letter of instruction and/or engagement for the expert and then further disputes as to the provision of documents broke out. The expert, even on 25 July, again informed the parties that she could not complete the report unless she had 12 weeks and by that time she still didn't have all of the material.
2. Some of the disputes appear to sound in disclosure disputes. For example, it is now alleged that a loan from one of the respondents to another, both corporate entities, involving in excess of $1m has been removed from the lender's balance sheet prior to the lender going into liquidation.
3. The follow on from all of these difficulties is that the respondents seek to discharge the single expert and replace her with an expert that they have nominated who says she would be able to complete the valuation in the time left between now and trial. Whether she has in fact seen all of the material is unclear to me, and even if she has, I have some reservations about whether she would have the capacity to undertake such a large task in the time frame. However, there was no active dispute to that proposition so I proceed on the basis that the alternative expert could, if pressed, have a valuation by the commencement of trial.
4. The situation that now confronts us is that there is currently no valuation report. The single expert is not able to prepare one in time for the final hearing on 15 September and lest there be any confusion, I add again, through no fault whatsoever of the single expert whom it seems to me has been prompting the parties for a long time to provide her with the information she clearly needed to undertake the work she had been asked to do. Indeed, we are still in a situation where there is outstanding material and ongoing disclosure disputes.
5. The wife is therefore faced with the unfortunate choice of either accepting the expert proposed by the husband's solicitors (and a reduced ambit for the report) or vacating the trial that is listed in September. She prefers to have the trial adjourned and seeks the costs thrown away by an adjournment so as to ensure that Ms AP can undertake a proper valuation as the single expert that had been appointed by the court.
6. It seems to me that whilst there is much of the detail that can be argued about in terms of delays from time to time, the activeness of the various lawyers, and indeed much argument was directed towards whether or not the wife could have done more to have effectively pushed the case along. In reading the documents as a whole, I am of the view that in substance, the problem has been caused by the respondents and their conduct towards the process of valuation. It does not appear to me to be appropriate to allow that to result in them having the ability to remove the single expert who has long been appointed, replace that expert with one of their own choosing, and have a reduced ambit for the expert report.
7. As a consequence, I am not persuaded to discharge Ms AP. The matter cannot proceed on 15 September in these circumstances and the trial date must be vacated.
8. I have reflected on how to best manage this case into the future. I am mindful of the fact that there has been an enormous number of interlocutory events in this matter. However, it appears to me that it can only progress to trial if the parties are closely managed by the court from this point forward which will necessarily mean more interlocutory events than the average case. However, I see no way in which one could reasonably expect the matter to be ready for trial without intense judicial management of the proceedings.
9. I will hear further arguments as to the appropriate directions for the ongoing management of the matter.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.