Tyler v Thomas - [2006] FCAFC 6 - FCAFC 2006 case summary — Zoe

CTHFCAFC

Tyler v Thomas

[2006] FCAFC 6

Federal Court of Australia (Full Court)|2006-07-01|Before: Bennett J, System J, Graham JJ

View original source

At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2006-07-01

Before

Bennett J, System J, Graham JJ

Source

Original judgment source is linked above.

Judgment (42 paragraphs)

[1]

introduction 1 I have had the benefit of reading in draft the reasons for judgment of Bennett J. I gratefully adopt her Honour's summary of the factual background to this appeal and of the submissions of the parties in support of the grounds of appeal. I am thus able to turn directly to the grounds of appeal.

[2]

ground A: What was transferred? 2 The appellant ('Mr Michael Tyler') contended that the property interests transferred by Mr Douglas Tyler to him had no market value. This contention was founded on the premise that, as at the date of the transfers, Mr Douglas Tyler held only a bare legal title as registered proprietor of the relevant properties with the beneficial interests in the properties being held by the Commonwealth Development Bank of Australia Limited ('CDB'). 3 The evidence before Raphael FM revealed that after Mr Douglas Tyler defaulted under the mortgage given by him to CDB, CDB brought proceedings against him in the Supreme Court of New South Wales ('the Supreme Court'). On 14 December 1999 CDB obtained judgment in the Supreme Court proceedings for $569 452.56 and an order for possession of the properties. 4 On an unknown date in November 2000 each of Mr Douglas Tyler, Mr Michael Tyler and CDB executed a deed ('the Deed'). The recitals to the Deed, after referring to the circumstances outlined in [3] above, note that on 13 April 2000 CDB obtained possession of the properties but that, without the consent of CDB or the Supreme Court, Mr Douglas Tyler 'has re‑entered and remains in possession of the security properties'. The recitals further note that Mr Michael Tyler had agreed to purchase the properties from CDB. However, the operative clauses of the Deed constitute an agreement between the parties to adopt a different course, namely the course of having Mr Michael Tyler purchase the properties directly from Mr Douglas Tyler. It appears that this latter course avoided the need for the payment of stamp duty on the transfer of the properties. 5 Clauses 1‑3 of the Deed are in the following terms: '1. Within seven days of signing this deed Douglas Tyler will deliver to the Bank a signed contract for sale of the security properties between himself as vendor and Michael Tyler as purchaser for the price of $635,000. 2. Michael Tyler will 2.1 exchange contracts to purchase the security property on or before 10 November 2000 ("the exchange date"); and 2.2 complete the sale on or before 22 November 2000 ("the completion date"). Releases 3. Upon receipt of the net proceeds of sale by the completion date 3.1 the Bank agrees not to enforce the judgment debt and releases Douglas Tyler from any further claims arising out of the matters the subject of the proceedings or the re‑entry of the security properties; 3.2 Douglas Tyler releases and discharges the Bank from all suits, actions, causes of action, claims and demands whatsoever and wheresoever and this deed may be pleaded as a bar to any action, suit or proceeding which may be commenced by any party to this deed other than any action, suit or proceeding to enforce this deed in respect of any matter or thing in any way arising from or related to or connected with the matters the subject of the proceedings.' 6 Clauses 1 and 2 of the Deed were complied with. By a contract dated 10 November 2000 Mr Douglas Tyler agreed to sell to Mr Michael Tyler the whole of his interest in the properties and Mr Michael Tyler agreed to purchase that interest. 7 On 22 November 2000 two transfers were executed by Mr Douglas Tyler as transferor and by Mr Peter Patrick Marr, solicitor, for Mr Michael Tyler as purchaser. The first of the transfers identifies Mr Douglas Tyler as the registered proprietor of an estate in perpetual leasehold in the land identified in folio identifier 79/752847. The second of the transfers identifies Mr Douglas Tyler as the registered proprietor of an estate in fee simple in the land identified in folio identifiers 1/409844, 29/752847, 32/752847, 48/752847, 49/752847 and 83/752847. 8 In the case of each of the two transfers the interests held by Mr Douglas Tyler in the relevant land was transferred to Mr Michael Tyler free of any encumbrance. Thus, in each case the interest transferred to Mr Michael Tyler gave him, as against Mr Douglas Tyler, the exclusive right to occupy the land. 9 It is apparent that Mr Michael Tyler agreed to complete the purchase of the properties without vacant possession of them being provided to him by Mr Douglas Tyler who is his uncle. Moreover, he chose thereafter not to assert against Mr Douglas Tyler his right to vacant possession of the properties. Indeed the recitals to a deed made on 16 September 2001 between Mr Michael Tyler and Mr Douglas Tyler record that '[i]t is the owners [sic] intention that the occupier, who is the owner's uncle, continue to occupy the property on conditions set out in this deed'. 10 Nonetheless, it is clear that the property actually transferred by Mr Douglas Tyler to Mr Michael Tyler was the whole of Mr Douglas Tyler's interest in the land the subject of the contracts exchanged between them. As at the date of the two transfers Mr Douglas Tyler was, by the terms of the Deed, empowered by CDB to transfer to Mr Michael Tyler his unencumbered interest in that land notwithstanding his default under the mortgage. In the circumstances that happened CDB exchanged its rights under the mortgage for the right to receive the net proceeds of the sale of the properties. 11 The appellant contended that the circumstances of this case are analogous to those considered by the Full Court in Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217 ('Mateo'). In that case the beneficial interest in a matrimonial home was vested in the wife by an order of the Family Court of Australia. The subsequent transfer to her of the husband's interest in the property was necessary only to perfect her interest in the property. By the time of that transfer the husband had no beneficial interest in the matrimonial home to transfer to the wife; he was not capable of transferring to her more than his bare legal title. The circumstances of this case are not analogous to those considered in Mateo. The Deed rendered Mr Douglas Thomas capable of transferring, and he did transfer, to Mr Michael Tyler the beneficial interest in the properties. 12 For the above reasons the contention of the appellant that the property interests transferred by Mr Douglas Tyler to Mr Michael Tyler had no market value must be rejected.

[4]

ground C: appointment of court expert 15 There is no challenge to the validity of r 15.09 of the Federal Magistrates Court Rules ('the Rules') which relevantly provides: '15.09 (1) The Court may, at the request of a party or of its own motion: (a) appoint an expert as court expert to inquire into and report on a question arising in the proceeding; and (b) … (c) give … directions, including to extend or supplement the inquiry or report. (2) If possible, the court expert should be a person agreed upon between the parties.' 16 Rules 15.10, 15.11 and 15.12 of the Rules relevantly provide: '15.10(1) The court expert must give the report to the Registrar together with the number of copies the Registrar directs. (2) The Registrar must send a copy of the report to each party. (3) The Court may: (a) receive the report in evidence; or (b) allow the examination of the court expert; or (c) give other directions as to the use of the report. (4) A party wishing to cross-examine the court expert: (a) must arrange for the attendance of the court expert; and (b) may issue a subpoena requiring his or her attendance; and (c) unless the Court otherwise directs, must pay the reasonable expenses of the attendance. 15.11 Unless the Court otherwise directs, the parties are jointly liable to pay the reasonable remuneration and expenses of the court expert for preparing a report. 15.12 If a court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the court.' 17 The above rules are in substantially the same form as O 34 of the Federal Court Rules ('the FCRs'). They may be assumed to have been modelled, at least in part, on O 34 of the FCRs. Guidance on the proper approach to the exercise of the power to appoint a court expert pursuant to r 15.09 of the Rules can thus be obtained from authorities concerning O 34 and comparable rules of other courts. It is also helpful, in my view, to give some consideration to the history that lies behind O 34 of the FCRs and similar rules. 18 It has been said the common law has recognised the power and right of a judge to call an expert witness since at least the fourteenth century when, in an appeal of mayhem in 1345, it is reported that surgeons were summoned to say if a wound was fresh (Anon. Lib. Ass., 28, pl. 5, cited in J Basten, 'The court expert in civil trials - a comparative appraisal', Modern Law Review, vol 40, 1977, p 174 at p 175; see also I Freckleton and H Selby, Expert evidence, 3rd edn, Lawbook Co, 2005, p 690). 19 However, whether because of what Basten JA (as the learned author of the above article may now be referred) described as the 'emasculating' provisions of rules of court that authorised the appointment of court experts 'on the application of any party', or for some other reason, it became accepted in the United Kingdom and Australia in the early twentieth century that a judge could not call a witness not called by either party over the opposition of a party (see Justice I Sheppard, 'Court witnesses - a desirable or undesirable encroachment on the adversary system', Australian Law Journal, vol 56, 1982, p 234). The position may have been less strict in equity suits where the paternity or wardship of children was in issue (see, for example, Re S (infants) [1967] 1 All ER 202 and In Re L (An Infant) [1967] 3 WLR 1149). 20 The dangers historically thought to attend the appointment of a court expert included that a perception might arise that the judge had abandoned the traditional judicial role under the common law system which is to resolve the dispute between the parties on the basis of the evidence called by the parties. This traditional approach is well illustrated by the observation of Lord Denning in Jones v National Coal Board [1957] 2 QB 55 at 64: 'The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well.' 21 A further danger thought to attend the appointment of a court expert was that the court might attach undue weight to the report of the court expert should a party seek to contradict its contents (see In Re Saxton Dec'd [1962] 1 WLR 968 at 972). 22 Modern amendments to rules of court which authorise the appointment of a court expert on the application of a party or on the court's own motion reflect a change in philosophy as to the proper role of courts in the management of litigation. It is now widely accepted that courts carry responsibility to assist in the just, efficient and cost‑effective resolution of disputes giving rise to litigation. Indeed, the Australian Law Reform Commission in its Report No 89 'Managing Justice: A Review of the Federal Civil Justice System' stated at 1.14: 'One of the major thrusts of this report is that our civil justice system works best when judicial officers take an active role in managing proceedings from an early stage.' (emphasis in original) 23 It is presumably for the above reason that, as the authorities reveal, orders made under rules of court for the appointment of a court expert have generally been made well before trial in the course of the case management of the proceeding. Indeed, Basten JA observed in the article referred to in [18] above at p 185: 'No doubt a judge would be unwilling to make an order at a very late stage, or during the hearing as this would lead to delays and would fail to save any expenditure on presentation of partisan evidence.' 24 In Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350 Pincus J granted an application made after the close of pleadings for the appointment of a court expert under O 34 of the FCRs. The applicant in that case was in liquidation. His Honour at 351 noted that if the application proved unsuccessful the whole of the amount available for the payment of costs and creditors might be swallowed up in pursuing the application. His Honour went on to observe: 'It is suggested that courts should be cautious in applying rules of this sort. There does not seem to me, however, to be any special need occasion for caution. An architect … is available to do the report for a fee of $600 - ie about one-half of 1 per cent of the anticipated costs of the whole case. It is true that, as counsel for the respondent contend, the expert's report may not resolve the matter. The case might still continue. On the other hand, even if that occurs, the report is admissible in evidence O 34, r 3(3)) and may be expected to assist the court to resolve the issues. It is, of course, possible that the report will assist towards settlement of the case, a matter which has apparently been discussed between the parties. Looking at the matter more broadly, the case seems one peculiarly suited to treatment of this sort. The amount in issue is very much less than the expected cost of the litigation and a competent person is available to look into the central questions requiring expert resolution, on behalf of the court. Experience suggests that too often expert witnesses display a degree of partiality, whereas the court-appointed expert may be expected to be indifferent as to the result of the case.' 25 In Britten v State of Western Australia [2001] FCA 1256 Gray J appointed an anthropologist as a court expert to inquire into and report upon the identity of persons claimed by an illiterate applicant to be the holders of native title in certain land. This step was taken by his Honour on his own initiative shortly after the matter came into his Honour's docket. His Honour was faced with a legislative requirement to deal with the claim of the applicant together with another claim that covered in part the same land. For this reason it was necessary for the Court to know the identities of all those who were said to be the holders of native title in the land in question. His Honour concluded that it would be undesirable in the circumstances to require an unrepresented party who did not read or write to provide a list of the names of the persons that she claimed held native title to the land. 26 In Trade Practices Commission v Arnotts Limited (1989) 21 FCR 318 Beaumont J noted that an order had earlier been made by consent in that case appointing a court expert to report on whether, in effect, certain survey material prepared by a research centre provided a sound basis for the drawing of conclusions as to the views of the population of Australia. Similarly in First Netcom Pty Ltd v Telstra Corporation Ltd (2000) 101 FCR 77 at [10] the Full Court noted that: '…in the course of general case management in relation to the proceeding, the primary judge appointed Mr Roger Amos pursuant to O 34, r 2(1)(a) of the Federal Court Rules 1979 (Cth) to inquire into, and to prepare a report to the Court concerning, the questions to be determined in the proceeding.' 27 In Gale v New South Wales Minister for Land & Water Conservation (2001) 6(4) AILR 66; [2001] FCA 1652 Madgwick J refused an application to appoint a court appointed expert under O 34 r 2 of the FCRs in circumstances in which expert evidence had already been filed by both parties to the proceeding but the expert evidence filed on behalf of the applicant had been shown to be deficient and the applicant was unable to fund the provision of additional expert evidence. Madgwick J at [5] observed: 'Order 34 r 2 does not authorise the Court to act for the purpose of assisting any particular party to a proceeding against others in the gathering or presentation of evidence, although unintended or incidental assistance to a party may be the consequence of the Court's utilisation of that power. The touchstone is the interests of justice.' 28 Additional guidance on the proper approach to the exercise of the power to appoint a court expert may be gleaned from the judgment of the Court of Appeal in Abbey National Mortgages plc v Key Surveyors Nationwide Ltd [1996] 3 All ER 184. The primary judge in that case had, in reliance on O 40 of the Rules of the Supreme Court, appointed a court valuation expert. Order 40 authorised the Court, in any matter in which any question for an expert witness arose, on the application of any party to appoint an independent expert. At 187‑188 the Court of Appeal stated: 'In submitting that the judge had no power under the order to make the order he did for appointment of a court expert, Mr Leighton Williams advanced four main submissions. These were: (1) that the order was only applicable to questions of a scientific or technical kind; (2) that it was only appropriate to appoint an expert under the order to give an opinion on a subsidiary question, and not on the major issue which the court had to resolve; (3) that a court expert appointed in present circumstances would not be an "expert" within the meaning of the order, since he would necessarily lack personal knowledge or experience of market conditions and values in many of the areas upon which he would have to report; and (4) that the court expert was in truth being invited to give an opinion on the answer to 51 questions and not to one, so that the parties were each entitled under r 6 to call a witness to give evidence on each of those 51 questions. As to the first of these contentions, we strongly suspect that the draftsman of the order did indeed envisage its use to resolve questions of a scientific or technical kind. The draftsman may also have envisaged the use of the order to resolve subsidiary questions and not the major issues in the case. We do not, however, find anything in the language of the order which restricts its use to cases in which the assistance of a court expert is sought tor solve questions which are scientific or technical or subsidiary. Times change and procedure develops. We do not think that the terms of the order forbid an appointment such as the judge made if it was otherwise appropriate. We do not accept the third contention, that a court expert so appointed would not be "expert". Rule 1(1) envisages that a court expert may be appointed to inquire and report. He may therefore have to qualify himself to give expert evidence. What is required is that the expert, when so qualified, should possess the expertise of his professional calling. So far as the fourth convention, based on r 6, is concerned, we think that "the question reported on by the Court expert" must be read to mean "the question or questions". If more than one question is asked of the court expert, it does not in our view follow that each party is entitled to call one expert on each of the questions so asked.' 29 Notwithstanding the limited case law on the circumstances in which the discretionary power of a court to appoint a court expert should be exercised, the following broad principles can, I consider, be deduced from the authorities: (1) the power to appoint a court expert is part of the armoury made available to courts for the purpose of ensuring the just, efficient and cost‑effective management of litigation; (2) the power to appoint a court expert is to be broadly understood and is not available to be exercised only where litigation calls for expert evidence of a scientific or technical kind; (3) a court expert may be appointed to express an opinion on the major issue to be decided in the litigation; (4) generally speaking, the correct approach will be to regard the appointment of a court expert as the first step, but not necessarily the only step, in the obtaining of expert evidence on a particular issue; (5) ordinarily the appropriate time for the exercise of the power is well before trial so that the parties have adequate time to give consideration to the report of the court expert and to make decisions on whether they wish to challenge any part of that report; (6) the power to appoint a court expert is not ordinarily to be exercise for the purpose of assisting an impecunious party to gather evidence - although the appointment of a court expert may in fact provide such assistance. 30 As the Court of Appeal observed in Abbey National Mortgages plc v Key Surveyors Nationwide Ltd at 185, it is not of itself an argument against an order concerning expert evidence that the form of the order is novel, even bold and innovatory. Their Lordships pointed out, with reference to the United Kingdom, at 185‑186: 'There can be no purpose in commissioning expensive and far‑reaching reports on civil procedure if lessons which emerge are not heeded. Exhortations to trial judges to be interventionist and managerial would be futile if every managerial initiative by a trial judge were to be condemned as an unwarranted departure from orthodoxy. It would be most unfortunate if the Court of Appeal were to block reasonable attempts to mitigate the defects of established practice. At the same time, of course, both trial judge and [the] Court of Appeal must be constantly alert to the paramount requirements of justice; justice to the plaintiff and justice to the defendant. To expedite the just despatch of cases is one thing; merely to expedite the despatch of cases is quite another. The right of both parties to a fair trial of the issues between them cannot be compromised.'

[6]

31 In this case no order for the appointment of a court expert was made ahead of trial. Rather the Federal Magistrate, by consent, fixed a timetable for the parties to file and serve their respective evidence in chief in affidavit form. The respondent (the applicant in the Federal Magistrates Court) filed and serve an affidavit sworn by Kenneth James Potter, a certified practising valuer. Annexed to Mr Potter's affidavit were three reports prepared by Mr Potter. The appellant (the respondent in the Federal Magistrates Court) apparently decided against calling evidence in chief from an expert valuer; he did not file and serve an affidavit sworn by a valuer. 32 On the first day of the trial counsel for the respondent sought to adduce in evidence the reports annexed to Mr Potter's affidavit. Mr Marshall, counsel for the appellant, objected to the reports being received in evidence. The next morning counsel for the respondent tendered various documents said to be relevant to the issue of the value of the properties. His Honour did not formally rule on their admissibility or the admissibility of the reports annexed to Mr Potter's affidavit. 33 Rather the Federal Magistrate raised the possibility of his exercising the power to appoint a court expert to provide a valuation of the land in question. Mr Marshall opposed the adoption of this course and asked for a ruling that the reports of Mr Potter were not admissible in evidence. His Honour expressed the view that there was a public interest element to the litigation because its outcome could affect the amount of the payments to be made to creditors of Mr Douglas Tyler. His Honour went on to say: 'I don't know what the value of this property is, but if the value of the property is more than [sic] the matter ought to be looked in to and that is a public interest matter and if all we are going to do is spend the whole of the rest of the day arguing piece by piece over every piece of paper that Mr Skinner -Mr Skinner is not entirely innocent in this, Mr Marshall, don't let me think that he is, he should have brought Mr Potter along and he should have done it properly, but he didn't and that is all going to be reflected in costs I have no doubt, but I am not going to sit here all day and argue about whether this - can this go in and this, whether the valuer looked at the other premises, properties.' 34 Mr Marshall protested that the situation that had arisen was the responsibility of the respondent. He submitted that the pleadings disclosed that the value of the properties was in dispute and the respondent had not properly attended to the preparation of his case. 35 Counsel for the respondent supported the appointment of a court expert: '… because otherwise we are going to be left with arguments about admissibility up hill and down dale.' 36 The Federal Magistrate determined to appoint a court expert to consider the value of the properties and to adjourn the hearing accordingly. Neither party had applied for an order that the hearing be adjourned although counsel for the respondent had on the first day identified the seeking of an adjournment as an option available to his client. Additionally the later support of counsel for the respondent for the appointment of a court expert presumably carried with it support for an adjournment of the hearing to allow a court expert to be appointed and to provide his or her report. 37 I infer that, the order for the appointment of a court expert having been made, counsel for the respondent implicitly withdrew the tender of the reports annexed to Mr Potter's affidavit and of the various documents said to be relevant to the issue of the value of the property. Certainly those particular tenders were not thereafter pressed. 38 The Federal Magistrate's published reasons for appointing a court expert record that his Honour 'would have been disinclined' to receive in evidence the reports prepared by Mr Potter. The reasons also record that his Honour was 'faced with a very lengthy argument as to admissibility of documents prior to some more lengthy cross‑examination of a valuer'. After observing that there was a public interest in the outcome of the proceeding, his Honour expressed the view that he was 'required to balance all the interests when coming to a decision such as the one that I have proposed'. 39 His Honour observed at [10]-[12]: 'My main concern when considering the question of appointment of a valuer was that I do not consider these proceedings just to be proceedings "inter partes". They are bankruptcy proceedings. There is a public interest in the outcome of these proceedings. If Mr Skinner is successful his client will have the benefit of additional funds to satisfy unsecured creditors of the bankrupt, that are not currently available. This is an important matter to take into account. It is doubtless the very reason why the trustee has bought the proceedings in the first place. I believe I am required to balance all the interests when coming to a decision such as the one that I have proposed. It is to be hoped, although it is not necessarily required, that a valuation by a court expert will be accepted by the parties as a fair and true valuation of the land as at the date of the transfer. It would certainly give the court some confidence although of course the rules provide for the report to be the subject of cross-examination and other evidence if necessary. The current state of the valuations is not good. The range itself tells how difficult a decision I am faced with. The range is somewhere between the $635,000 paid for the land and $1,300,000. In all the circumstances and, whilst not in any way deprecating the situation of the respondent, I am of the view that the appointment of a court expert and the adjournment of the case is the appropriate way to proceed.'

[8]

40 In my view, if it were established that the Federal Magistrate has exercised the power in r 15.09 of the Rules for the principal purpose of curing deficiencies in the evidence of the respondent, it would be appropriate for this Court to intervene on the basis that his Honour had proceeded on an erroneous principle. Generally speaking, a trustee in bankruptcy who institutes a proceeding, whether under s 120 of the Bankruptcy Act or otherwise, is under the same obligation to adduce admissible evidence in support of the claim made in the proceeding as any other litigant who institutes a proceeding. It is also appropriate to observe that an order made under s 120 of the Bankruptcy Act, unlike an order for the sequestration of the estate of a debtor, does not affect any person's status. The 'public interest' in the outcome of the proceeding before his Honour was no more than the sum of the private interests of those unsecured creditors of Mr Douglas Tyler who were likely to benefit from an increase in his bankrupt estate. 41 If it were established that his Honour had exercised the power in r 15.09 of the Rules for the principal purpose of negating the obligation that otherwise fell on him to rule on the objections taken to the receipt into evidence of the documents tendered by counsel for the respondent, I would also take the view that it would be appropriate for this Court to intervene on the basis that his Honour had proceeded on an erroneous principle. Similarly I would take that view if it were established that his Honour was principally motivated by a desire to avoid difficulties which he perceived to attend the assessment of conflicting expert evidence. It is part of the proper function of a judicial officer to rule on objections to evidence and to assess conflicting expert evidence. 42 However, while certain of his Honour's observations are open to be understood to indicate that his Honour's order was motivated by some or all of the above considerations, I am not satisfied that when taken in context his Honour's observations are to be understood as indicating that his Honour's order for the appointment of a court expert was not made to advance the just, effective and cost‑efficient management of the proceeding. I am, therefore, not satisfied that it is appropriate to conclude that his Honour exercised the power vested in him by r 15.09 of the Rules for an improper purpose. Rather, it seems to me that this Court should conclude that his Honour exercised the power to appoint a court expert because he was satisfied that the appointment would, or might, facilitate settlement of the proceeding or alternatively shorten the hearing time necessary for the just judicial determination of the proceeding. The other benefits that his Honour identified as flowing from the appointment of a court expert do not, in my view, detract from the propriety of the course adopted by his Honour. 43 Nonetheless I consider it appropriate to observe that it is likely to be a rare case in which it is appropriate for a court expert to be appointed after the commencement of a hearing. As mentioned above, the late appointment of a court expert is likely to lead to delays and may additionally disrupt the orderly and cost-effective preparation of the proceeding for hearing.

[10]

ground D(c): increase in valuation by 5% 45 The classic definition of the test of value of land is that stated by Griffith CJ in Spencer v The Commonwealth (1907) 5 CLR 418 at 432: 'In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring "What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?" It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural.' 46 As the value of particular land on a particular day is, as the Chief Justice observed, necessarily to some extent conjectural, no valuation of land can sensibly pretend to be precisely accurate to the last dollar. Rather, as the Full Court of the Victorian Supreme Court observed in Karenlee Nominees Pty Ltd v Gollin & Co Ltd [1983] 1 VR 657 at 669: 'The valuation of land and buildings involves matters of judgment … There is no scientific exactitude in the valuations of land and buildings. They are as hypothetical as is the hypothetic purchaser whom they assume.' 47 Mason J expressed the same idea when, in Federal Commissioner of Taxation v St Helens Farm (A.C.T.) Pty Ltd (1981) 146 CLR 336 at 381, he stated: 'Valuation is a matter of estimation, not of precise mathematical calculation.' 48 When the court expert, Mr Knight, acknowledged in the Federal Magistrates Court that there would be a 5% either way leeway on his valuation he was merely, and properly, acknowledging the inexact nature of any exercise of valuation. He was not expressing an opinion that the correct valuation might be either a figure 5% lower than his valuation or, alternatively, a figure 5% higher than his valuation. 49 In the events that happened the Federal Magistrate was not confronted with differing opinions of expert valuers. Only Mr Knight expressed an expert opinion on the value of the property transferred by Mr Douglas Tyler to Mr Michael Tyler. In reaching his own view as to the value of the property his Honour was assisted by the cross‑examination of Mr Knight by counsel for each party. Senior counsel for the respondent, Mr McEwen SC, attempted to demonstrate that Mr Knight's valuation was too low. Counsel for the appellant sought to demonstrate that it was too high. 50 His Honour concluded that Mr Knight was an impressive witness who had detailed knowledge of the relevant area. On the topic of the comparable sales on which Mr Knight placed reliance his Honour said: 'I am not convinced that Mr Knight has made any serious errors in calculation when commenting upon his comparables … This does not mean that Mr McEwen's cross examination was not effective and did not point up some approaches that needed explanation. But I think that Mr Knight did provide adequate explanations.' 51 His Honour also concluded that Mr Knight 'stood his ground very well' in the face of what he described as 'intelligent and experienced cross examination' of Mr Knight by counsel for the respondent. 52 This ground of appeal raises the issue of whether the Federal Magistrate was in the above circumstances entitled to adopt a value for the transferred property which was 5% higher than Mr Knight's valuation because his Honour 'was left with the view that his figure of $720,000 may have been towards the low end of any range'. His Honour explained the view with which he was left by reference to: 'the values placed on some of the other comparable properties where I believe Mr Knight may have overvalued their access or their size when reducing his figures on the property in question.' 53 Whether the Federal Magistrate was entitled to adopt a value for the transferred property that was 5% higher than Mr Knight's valuation will depend on whether his Honour, by doing so, arrogated to himself the role of an expert and accorded primacy to his opinion over that of Mr Knight. 54 His Honour did not make a finding that Mr Knight's valuation was in fact attended by any error. Nor did his Honour identify the evidence which supported the conclusion that Mr Knight may have undervalued some of the comparable properties by overvaluing their access or their size. He did not give detailed consideration to how any error of this kind would have led to an increase of 5% in the valuation arrived at by Mr Knight. 55 In Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 at 544‑545 Wells J observed: 'It would never occur to a trial judge who, for example, had heard many cases in which expert medical evidence had been tendered, to choose between the conflicting testimony of two medical witnesses by applying to it his own medical knowledge. That knowledge would, no doubt, have been of inestimable value in understanding the testimony; in suggesting questions; in comparing one set of opinions with another. But it would be quite contrary to principle, I apprehend, for the judge to bring a third set of opinions into the arena, and to supplement or condemn testimony properly adduced before him in reliance on his own theoretical grasp of principles and precepts of medicine. The judge may have proper and rational grounds for preferring one expert to another; such grounds are well‑known and accepted. He may, by a consideration of the whole of the evidence, expert and non‑expert, be able to conclude that one opinion is more likely to be sound than another or others, even though both or all opinions are given by men of integrity, learning and skill, and are supported, within self‑ordained limits, by impeccable reasoning. He may, because he has been persuaded by the evidence of one expert, find that there is a fatal flaw in the reasoning of another. It may appear that, having regard to the whole of the evidence, certain factual assumptions, and hence the opinions based on those assumptions, are not well founded. But the judge cannot arrogate to himself the role of an expert who is, in any respect, primus inter pares. In the Land and Valuation Court I seek to be informed and, as best I can, to evaluate; I do not sit to use such acquired knowledge of valuation principles as I have acquired in order to confirm or to condemn. I must act on the evidence, and if any of it is, in any wise, defective, incomplete or irreconcilable then I must make such use as I can of whatever other evidentiary material is available to correct, complete or reconcile.' See also Players Pty Ltd v Corporation of The City of Adelaide [2001] SASC 369. 56 A court is not obliged to accept the evidence of a particular valuer, even in a case where only one expert opinion as to value is adduced. However, in making adjustments to a valuation the court must find support for the adjustment in the evidence, apply proper principles and avoid casting itself in the role of an additional expert (Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180 at [76]). 57 It seems to me that in adopting a value for the transferred property that was 5% higher than Mr Knight's valuation the Federal Magistrate may well have erred. As noted above, the value adopted by his Honour finds no apparent support in the evidence. It seems that his Honour may well have brought his own opinions to bear in the very field in which expert testimony was adduced from, as it happened, an expert appointed by the court. 58 However, as the resulting 5% increase in the value ascribed to the property had no impact on the outcome of the application heard and determined by his Honour, it is unnecessary to reach a concluded view on this issue. Even if his Honour erred in the way alleged in this ground of appeal, the appellant is not on that basis entitled to any relief on appeal.

[14]

Background 62 The respondent is the trustee in bankruptcy of the estate of Mr Doug Tyler. The sequestration order was made on 14 February 2003. The bankruptcy is deemed to have commenced on 27 May 2002. Mr Doug Tyler was the registered proprietor of the land, the subject of these proceedings ('the proceedings'). On 22 November 2000, Mr Doug Tyler transferred the properties to Mr Michael Tyler, his nephew, and the appellant in these proceedings. The properties are located at Tyringham, near Dorrigo in northern New South Wales. Prior to the transfer, the properties were mortgaged by Mr Doug Tyler to the Commonwealth Development Bank of Australia Ltd ('the CDB') to secure the repayment of a loan of $535,000 and payment of related interest and charges. 63 Mr Doug Tyler defaulted under that loan agreement. Following mediation pursuant to the Farm Debt Mediation Act 1994 (NSW) there was a settlement agreement between Mr Doug Tyler and the CDB but Mr Doug Tyler breached the terms of that agreement. The CDB issued a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) dated 10 March 1999 and brought proceedings for possession of the properties in the Supreme Court of New South Wales. On 14 December 1999, the CDB obtained judgment for $569,452.56 and possession of the properties. On 22 November 2000, following the transfer of the properties, pursuant to a deed between Mr Doug Tyler, Mr Michael Tyler and the CDB of a date in November 2000 ('the deed'), the CDB received $635,000, the purchase price of the properties, and mutual releases were given by Mr Doug Tyler and the CDB. 64 Mr Doug Tyler remained in occupation of the properties, despite an attempt on the part of the CDB to remove him prior tothe transfer to Mr Michael Tyler. He is still in occupation. 65 The trustee commenced proceedings in the Federal Magistrates Court seeking a declaration pursuant to s 120 or s 121 of the Bankruptcy Act 1966 (Cth) ('the Act') that the transfer of the properties was void against the trustee. The main issue before the Federal Magistrate was whether the transfer was for 'less value than the market value' of the properties. If so, the transfer was void against the trustee under s 120. 66 Raphael FM held that s 120 applied, so that the transfer was void. Accordingly, his Honour did not find it necessary to consider whether the sale of the properties was also void as against the trustee by reason of s 121 of the Act. 67 Mr Michael Tyler appeals that decision. The grounds of appeal relate largely to the determination of the market value of the properties. The application under s 121 is the subject of the trustee's notice of contention. 68 I now deal with the issues raised in the grounds relied upon in the appeal. Ground A(a) was not pressed.

[21]

The relevant facts 79 Directions had been given prior to the commencement of the hearing before the Federal Magistrate that evidence was to be given by affidavit. Such evidence, as filed by the trustee, included an affidavit of Mr Potter, a valuer, and annexed three reports of valuations. During the hearing, Mr Marshall objected to the admissibility of Mr Potter's reports. At the end of the second day, Raphael FM gave judgment in Thomas v Tyler [2004] FMCA 864. A number of matters as recorded in that judgment are relevant: · Mr Marshall objected to the third of three valuations by Mr Potter. His Honour expressed himself disinclined to allow that evidence but did not rule on the objections or the admissibility. · No valuation evidence was served on behalf of Mr Michael Tyler. · By noon on the second day of hearing, his Honour was faced with lengthy argument as to admissibility of documents and lengthy cross-examination of Mr Potter. · His Honour expressed the view at [5] that 'because [his Honour] took the view that the evidence of value of this property is an essential integer of the establishment of the case under s120/121', he proposed to appoint a Court expert to provide a valuation of the property pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 ('the Rules'). · This proposal was supported by counsel for the trustee but opposed by Mr Marshall. · Mr Marshall's objection was, in effect, that the trustee had not sufficiently prepared his case and should abide by the consequences. · Mr Marshall also opposed an adjournment for the purposes of appointment of a Court expert on the basis of disadvantage caused by delay. · Raphael FM said that an 'important matter' was the interests of third parties, the unsecured creditors, and that their interests should also be part of the necessary balancing of interests. · The Court expert's evidence would hopefully, although not necessarily, be accepted by the parties. The expert would be subject to cross-examination. · The current state of the valuation evidence before his Honour was 'not good'. 80 His Honour decided to proceed with the appointment of a Court expert and adjourned the matter for four months. Both parties were permitted to make submissions to the expert, which they did. The expert delivered a report. No further valuation evidence was filed although his Honour adverted to the possibility that a party could adduce expert evidence contrary to that of the Court expert. 81 In his reasons, after the evidence of the Court expert and submissions on behalf of the parties, his Honour relied upon the evidence of the Court expert in determining the market value of the properties.

[22]

The submissions 82 Mr Marshall does not challenge the validity of Rule 15.09 of the Rules under which Raphael FM proceeded or his Honour's power to appoint an expert under that Rule. He submits, however, that it was not an appropriate exercise of discretion in the circumstances. 83 In particular, he submits that his Honour erred in weighing "the public interest", the interest of third parties, against the obligation on litigants to prove their case in accordance with the rules of evidence. In various ways, Mr Marshall's complaint is that the ordinary rules of evidence and proof of case were not followed, that the trustee was permitted to hear the objections to his evidence and then have the advantage of supporting a Court-appointed expert and that Mr Michael Tyler was entitled to assume that evidence served in accordance with the Court's directions and rules was the evidence he was to meet. 84 Mr Marshall submits that the Court has no power to adjourn hearings to permit a party 'to repair its evidence' and no power to appoint an expert to fill a crucial gap in the evidence to prove an obvious element of a party's case. The question, as he put it rhetorically, is 'where an applicant seeks recovery under the Act, directions have been made for the filing of evidence, the evidence is inadequate and an essential element of the case is not made out, how far does the Court go in assisting a party?'. 85 Mr Marshall submits that his Honour's decision was based on the following principles: 'a. that there is a distinctive public interest in the outcome of bankruptcy proceedings such as to ensure that such proceedings are 'not just…interpartes'; b. that the obligation on litigants to prove their case in accordance with the rules of evidence has to be weighed against 'the public interest', not only in bankruptcy proceedings but wherever one of the litigants can show "there is a public interest in the outcome of [the] proceedings"; c. alternatively, that the rules of evidence apply to hearings in a flexible way and can in practice be allowably evaded by convincing the Court that some other principle (including, but perhaps not only public interest of the type that Raphael FM claims to exist in bankruptcy proceedings) should prevail over such rules and that the matter should be adjourned to allow the defects in the evidence to be cured; d. that in some circumstances (including but perhaps not only where there is a public interest in the outcome of the proceedings) a Court can permit a litigant to hear its opponent's objections to its expert evidence before it makes a decision regarding whether or not to pursue or endorse the appointment of an expert by the Court; e. that proper preparation of triable evidence is not (especially in respect of expert evidence) an essential requirement of a litigant's preparation for trial; f. that in certain circumstances (including but perhaps not only where there is a public interest outcome in the proceedings) a respondent (in this case Michael Tyler) should not be allowed to assume that the evidence (especially expert evidence) served in accordance with the Court's directions and rules is the evidence that the Respondent will need to meet and deal with in order to successfully defend the proceedings at trial.' He contends that each of those principles is erroneous. He also submits that the appointment of the expert only benefited one party, the trustee. 86 Mr Cotman contends that the purpose of the appointment of the expert by Raphael FM was the interests of justice, the avoidance of lengthy argument and cross-examination and to assist his Honour, to give him confidence in the evidence of value of the property, in the absence of evidence from Mr Tyler. 87 Rule 15.09 relevantly provides: '(1) The Court may, at the request of a party or of its own motion: (a) appoint an expert as court expert to inquire into and report on a question arising in the proceeding; and (b) give directions about an experiment or test (other than a testing procedure for section 69W of the Family Law Act) for the purposes of the inquiry or report; and (c) give further directions, including to extend or supplement the inquiry or report. (2) If possible, the court expert should be a person agreed upon between the parties.' 88 Rules 15.10, 15.11 and 15.12 provide for the Court expert to provide his or her report to the Court and for the Court to send a copy to each party. The parties may cross-examine the expert and may adduce evidence of another expert on the question with the leave of the Court. Unless the Court otherwise directs, the parties are jointly liable for the expert's fees.

[23]

Consideration 89 In Minnesota Mining & Manufacturing Company v Beiersdorf (Australia) Limited (1980) 144 CLR 253 ('3M'), Aickin J considered the effect of Order 38 rule 2 of the High Court rules, which had been utilised by Murphy J, as trial judge, to appoint a Court expert to inquire into specific questions and to report to the Court. O 38 r 2 provided that, in a case involving a question for an expert witness, the Court or a Justice may 'in its or his discretion at any time on the application of a party' appoint an independent expert to inquire and report. O 38 r 3(1) provided that the report, 'so far as it is not accepted by all parties' is still furnished to the Court. No application was made to cross-examine the expert, who was a person agreed between the parties. Aickin J affirmed, at 270, that the Court expert should not be asked questions which can only be decided by the Court. In 3M, expert evidence was also called by the parties but Aickin J, with whom Barwick CJ and Wilson J agreed, took the evidence of the Court expert into account but made it clear that he was not, of course, bound by it. 90 In Gale v New South Wales Minister for Land & Water Conservation (2001) 6(4) AILR 66, Madgwick J considered some of the factors to be taken in an account on application by a party for the appointment of a Court expert pursuant to O 34 r 2(1) of the Federal Court Rules. That rule is to the same effect as Rule 15.09 of the Rules. The application to Madgwick J was made prior to the commencement of the hearing. As his Honour points out at [5], the power to appoint an expert exists to ensure that the Court has all the necessary technical information it needs to minimise the prospect of a miscarriage of justice. The Rule does not authorise the Court to act for the purpose of assisting a party in gathering or presenting evidence, although this may be the consequence of the Court's utilisation of the power. Noting that the applicant had legal representation and that he had filed expert evidence which was deficient, Madgwick J took into account the fact that the applicant had no, or insufficient, funds to retain an additional expert and the probability of success if the independent expert evidence were obtained. Madgwick J characterised the application for the appointment of the expert by the Court as one not primarily to assist the Court but to assist the applicant to gather further evidence. His Honour declined to appoint an expert witness. 91 However, as noted by Madgwick J in Gale and as implicit in Rule 15.09, if the discretion is otherwise properly exercised, the fact that, in the result, one party is or is perceived to have been advantaged does not mean that it was an improper exercise of the power in Rule 15.09 or the direction thereby conferred. 92 In this case, the evidence of valuation called by the trustee was under challenge. Mr Marshall challenged the trustee's expert's (Mr Potter's) report on the basis that it did not comply with the requirements set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Mr Marshall made the decision not to present evidence in opposition. His position was that this would have left the trustee without any admissible opinion evidence upon which to rely to prove an essential element of his case. That was a position he was entitled to take. The result would have been that there was no evidence of market value and the trustee would have failed to make out his case under s 120 of the Act. 93 Raphael FM should have ruled on the admissibility of the evidence when objection was taken (Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411). Mr Marshall pressed his Honour to take that course. If that resulted in the rejection of the expert evidence of the trustee, so be it (cf Fina Research SA v Halliburton Energy Services Inc (2003) 59 IPR 91). His Honour adverted to the "public interest" in the matter, represented by unsecured creditors that were not parties to the proceedings. His Honour cited at [10] the benefit to them of additional funds if the trustee is successful as 'an important matter to take into account'. While the unsecured creditors are affected by the outcome, I would not have thought that this represented the 'public interest' in the sense of the interests of justice, which were cited as the 'touchstone' of the purpose of an appointment under O 34 r 2 of the Federal Court Rules in Gale. 94 His Honour did offer the opportunity to file further expert evidence. However, it is not to the point that Mr Tyler had the opportunity to tender an expert report after receipt of the Court expert's report or that Mr Marshall had the opportunity to cross-examine the expert. His Honour's instincts were correct, in that he indicated that he would not permit an adjournment to enable the trustee to 'strap up' his case. He recognised at [5] that the evidence of value was 'an essential integer of the establishment of the case under ss 120/121' and, at [11], that the current state of the valuations was 'not good'. It was his Honour's own proposal that the Court expert be appointed. That proposal was supported by counsel for the trustee and opposed by Mr Marshall. His Honour expressed the hope that the valuation by the Court expert would be accepted by the parties. 95 The appointment of the Court expert by the Federal Magistrate was not pursuant to an application by a party but the result was assistance to the trustee, whose evidence of valuation may not have been admissible. 96 In his decision on the application of s120 of the Act, Raphael FM said at [4]: 'When the case commenced before me the applicant intended to tender certain evidence of a valuation nature. For reasons which I discussed in my judgment with the citation Thomas v Tyler [2004] FMCA 864 I did not admit that evidence and determined instead to appoint a count appointed valuer pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001. This occurred and a detailed report was received from Mr LM Knight, the registered value agreed to by the parties. His report which was received in February 2005 was considered by both parties…' 97 That is not strictly what occurred. His Honour made no ruling on the valuation evidence of the trustee's valuer, Mr Potter, which was objected to by Mr Marshall. 98 There is no doubt that there is, in Rule 15.09, power to appoint a Court expert to inquire into and report on a question arising in the proceeding. The valuation of the property was a question arising in the proceeding. No limitation on the discretion to make that appointment is provided, except for the suggestion in Rule 15.09(2) that, if possible, the Court expert should be a person agreed upon between the parties. 99 I have no doubt that the decision by the Federal Magistrate to appoint the Court expert was motivated on his Honour's part by a desire to advance the efficiency of determination of the matter before him and the administration of justice. However, in my view, it cannot be said that the "public interest" referred to, the interests of the unsecured creditors (of unknown number), can be said to justify the appointment of the Court expert during the course of the proceeding where the respondent had identified and challenged an 'essential integer' of the applicant's case. It was not appropriate to appoint the Court expert, necessitating an adjournment, rather than to rule on the admissibility of the evidence. The appointment of the expert by the Court was solely to the advantage of the applicant. The disadvantage to the respondent, including the taking of decisions based upon the way the applicant presented his case, is not balanced by the subsequent right to put material to the Court expert and to cross-examine him. Nor is it balanced by the right to call additional expert evidence to answer that of the Court expert. 100 The next question is whether the matter should be referred back to the Federal Magistrate. Mr Cotman submits that no interest is served in returning the case so that the evidence can be repeated. He says that, in view of the evidence of value which is available, it cannot be said that any different result would have been achieved at the trial. He also maintains that there was other sufficient evidence of valuation before the Federal Magistrate. The admissibility and sufficiency of that evidence have not been determined. 101 Unfortunately, I cannot agree that there is an alternative to sending the matter back to the Federal Magistrate. If there is other sufficient evidence of valuation, that will have to be considered. It may be necessary for his Honour to rule on the reports of Mr Potter. It has not been established in this appeal that no different result would have been achieved at trial if the Court expert had not been appointed.

[24]

Ground D (a) and (b): Raphael FM erred in deciding the market value of the Properties as at 10 November 2000 was $758,000 as he rejected questions sought to be put to the Court appointed valuer on the topic of the discount to be applied to the market value of the Properties for the inability to give any purchaser vacant possession and for not attempting to value the inability any hypothetical vendor of the Properties to give vacant possession. 102 Mr Doug Tyler was in occupation of the property at the time of trial, more than four years after attempts by the CDB to evict him. That occupation since the transfer has been permitted by Mr Michael Tyler. The evidence was that the CDB had formed the view that forcible eviction would be expensive and time consuming. Mr Marshall wished to cross examine the Court expert on the effect on the valuation of the properties of Mr Doug Tyler's presence. This entailed an assumption that the vendor, Mr Doug Tyler, could not give vacant possession because of his own occupation. Some cross-examination took place. Counsel for the trustee objected to the cross-examination and his Honour curtailed it. As Mr Cotman points out, the Court expert declined to speculate on the hypothetical issue as put to him. Mr Marshall contends that curtailment of cross examination was a denial of procedural fairness, as the evidence would have affected the valuation. 103 I see no basis in this ground of appeal. I do not accept that the fact that Mr Doug Tyler was in possession of the properties, necessarily affects the value of the property. The evidence is that, while an understanding of the agreement that Mr Doug Tyler would remain in occupation existed as between himself and his nephew as at 17 November 2000, the deed formalising that arrangement was not executed until 16 September 2001. The transfer was on 22 November 2000. It cannot be assumed that, in order to effect a sale, Mr Doug Tyler would not have been a willing and not over-anxious vendor and would not have vacated the premises, whether or not he had previously asserted a disinclination to do so.

[25]

Ground D(c): Raphael FM erred in failing to deduct 5% from the market value figure of $720,000 arrived at by the Court appointed valuer despite the uncontradicted evidence, and the Magistrate's finding that there was a 5% either way leeway on the valuation, and instead increased that valuation by 5%. 104 At [17], Raphael FM noted the acknowledgment by the Court expert that 'there would be a 5% either way leeway on his valuation'. His Honour, at [18], said that he thought the valuation was 'towards the low end of any range' and increased the value of the properties from the expert valuation of $720,000 by 5%, to approximately $758,000. 105 Mr Marshall contends that the Court is obliged to consider the lowest amount in the range as the amount which the purchaser ought to have paid in order to prevent s 120 of the Act being invoked. This would have been $682,000 which, it is submitted, would have meant that 'the [Federal] Magistrate would then have had even better reason to mould appropriate relief in terms of ordering a payment to represent the difference between market value and price paid rather than a reconveyance'. 106 Mr Cotman's response is straightforward: the Court was not bound to accept, without qualification after hearing the evidence, the conclusions of the expert of market value (3M at 675 and ff). It was clearly put to the Court expert in cross-examination that he had erred on the side of caution in his valuation and his Honour was entitled to form the view that the total market valuation was understated for the reasons set out at [18]. 107 I agree that the Federal Magistrate was not bound by the conclusions of the Court expert in making the finding of fact of market value. I have had the benefit of reading in draft the reasons for judgment of Branson J. I agree, with respect, with her Honour's judgment at [45] to [57]. One difficulty is that the learned Federal Magistrate gave no detailed reasons or basis for his substitution. 108 Section 120 of the Act refers to consideration of less value than the market value of the property as a circumstance in which the transfer is void against the trustee. No further guidance is given in the Act for the determination of market value other than the meaning of market value in s 120(7) as the market value at the time of the transfer. The Explanatory Memorandum at 84.13 provides: 'The expression "market value" is intended to refer to the value of the property concerned if it were disposed of to an unrelated purchaser bidding in a market on an ordinary commercial basis for property of the kind disposed of, without any sort of discount or incentive for purchase being offered. The expression is not intended to include a situation where the property was being disposed of at a "fire sale", at discounted prices because of some immediate need on the part of the owner to liquidate his or her assets. Of course, there may be differing opinions as to the precise market value of some property, for example house properties, where valuers or real estate agents may give kerbside valuations which spread over a range of monetary values. However, if the property was transferred for an amount less than the lowest amount in the range, the transfer would be a transfer at undervalue, for the purposes of the section.' (emphasis added) 109 Even assuming that the Federal Magistrate should have taken as the market value the lowest amount in the range rather than the highest amount, this would have resulted in a market valuation of $684,000, which is still of more value than the amount paid upon the transfer, namely $635,000. 110 Mr Marshall then submits that this amount should be further discounted to allow for the inability to give vacant possession. For the reasons I have already given, I am of the view that no such discount should have been applied. 111 Accordingly, even if the Federal Magistrate was in error in increasing the value of the properties by 5% over the market value found by the Court expert, it would not have affected the conclusion of a transfer at less than market value. The appellant is not entitled to any relief on this ground of appeal.

[31]

GRAHAM J 120 The main issues in this matter are (a) what constitutes the giving by a transferee of "consideration of less value than the market value of the property" transferred within the meaning of s 120(1)(b) of the Bankruptcy Act 1966 (Cth) ("the Act"); (b) whether mid-trial, it is appropriate for a trial judge to order the appointment of an expert as a Court-appointed expert to determine the market value of property which has been the subject of a transfer to which s 120 applies. 121 One of the other issues is to determine whether the relevant transfer of property was void against the Respondent in accordance with s 121(1) of the Act. That section will not be enlivened unless the property transferred "would probably have become part of the transferor's estate or would probably have been available to creditors if [it] had not been transferred". The Respondent who has raised the application of s 121 in his notice of contention, readily concedes that neither of the preconditions for the operation of the section would apply in the circumstances of this case. 122 In the circumstances, it is necessary to focus upon the terms of s 120 of the Act and upon s 30(1) of the Act. These sections relevantly provide:- "30(1) The Court: (a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy …; and (b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter. … 120(1) A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor's bankruptcy if: (a) the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and (b) the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property. … (3) Despite subsection (1) a transfer is not void against the trustee if: (a) the transfer took place more than 2 years before the commencement of the bankruptcy; and (b) the transferee proves that, at the time of transfer, the transferor was solvent. (4) The trustee must give to the transferee an amount equal to the value of any consideration that the transferee gave for a transfer that is void against the trustee. … (7) For the purposes of this section: … (c) the market value of property transferred is its market value at the time of the transfer" 123 By a contract for the sale of land dated 10 November 2000 Douglas Keith Tyler, who became a bankrupt on 14 February 2003, agreed to sell a number of parcels of land to his nephew Michael John Tyler who is the Appellant in these proceedings. 124 The land the subject of the contract would appear to have been estates in fee simple in folio identifiers 1/409844, 29/752847, 32/752847, 48/752847, 49/752847 and 83/752847 and a perpetual leasehold estate in the land contained in folio identifier 79/752847 having a total area of approximately 750.778 hectares "ex roads" ("the subject property"). 125 The consideration payable under the contract for sale was $635,000. 126 The contract was completed by transfers dated 22 November 2000 registered numbers 7277068N and 7277067Q. 127 In accordance with s 115 of the Act Douglas Keith Tyler's bankruptcy was taken to have commenced on 27 May 2002. In the circumstances, the transfers of the subject property took place within the requisite 5 year period under s 120(1)(a) of the Act and s 120(3) has no application. 128 Whilst the sale of the subject property was not completed until 22 November 2000 the date upon which the beneficial interest in the property passed to the Appellant was 10 November 2000. Accordingly, the question is whether the consideration of $635,000 given by the Appellant for the transfer of the subject property was of less value than the market value of the property on that date. 129 By an application filed 4 May 2004 in the Federal Magistrates Court of Australia, the Respondent sought an order that the transfer of the subject property from Douglas Tyler to the Appellant was void as against the Respondent, an order that the Appellant transfer the property back to the Respondent and an order for costs. 130 On 12 April 2005 the learned Federal Magistrate made the following declaration and orders:- "1. The Court declares that the transfer by contract dated 10 November 2000 between Douglas Tyler and Michael Tyler of the property described in the schedule to these Orders, (hereinafter referred to as the Property) is void against the Applicant pursuant to section 120 of the Bankruptcy Act. The Court orders: 2. That within 14 days of the date of these Orders the Respondent shall execute a Memorandum of Transfer in registrable form transferring legal title to the Property to the Applicant. 3. That in default of the Respondent complying with Order 2 above, the Registrar of the Federal Magistrates Court is appointed to execute such Memorandum of Transfer as is necessary to transfer legal title in the Property to the Applicant. Schedule 1 The land held under the Real Property Act, 1900 owed (sic) by the second named defendant described in Folio Identifiers 83/752847, 49/752847, 1/409844, 48/752847, 29/752847, 32/752847 and Perpetual Leasehold 79/752847, 1961/63 Folio Identifier 94/726640 being the properties known as 'Big Top' and 'Home Farm' situated at Cedar Log Road, Tyringham via Dorrigo, New South Wales." 131 The above orders were duly entered on 27 June 2005. 132 It may be observed that the land the subject of the declaration and orders also included the land within Folio Identifier 94/726640 which had an area of 4.041 hectares and was apparently the subject of Special Lease 1961/63. 133 On 12 April 2005 the learned Federal Magistrate granted a stay pending the decision on appeal to this Court, on certain terms, left open the question as to the amount payable by the Respondent to the Appellant pursuant to s 120(4) of the Act and ordered the Appellant to pay the Respondent's costs excluding the costs referrable to the qualification and evidence of Mr Potter and the costs of the hearing on 15 November 2004 to be taxed if not agreed pursuant to the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules. 134 The hearing before the learned Federal Magistrate took place on 15 and 16 November 2004 and 14 and 15 March 2005. His reasons for judgment on the substantive issues were handed down on 29 March 2005. 135 By a Notice of Appeal filed 8 April 2005 the Appellant appealed from the judgment of the learned Federal Magistrate of 29 March 2005 and also a judgment of the learned Federal Magistrate given on 16 November 2004 to which further reference will be made shortly. 136 In about February 1996 Douglas Keith Tyler mortgaged the subject property and the 4.041 hectares to the Commonwealth Development Bank of Australia Limited (ACN 074 707 458) ("the Bank") to secure the repayment of a loan of $535,000 and related interest and charges. Memorandum of Mortgage No 2028635 would appear to have been a mortgage of the 4.041 hectares the subject of special lease 1961/63, Memorandum of Mortgage No 2028637 would appear to have been a mortgage of perpetual leasehold land being Lot 79 in DP 752847 and Memorandum of Mortgage No 2028641 would appear to have been a mortgage of freehold land being Lot 1 in DP 409844 and Lots 29, 32, 48, 49 and 83 in DP 752847. 137 On 10 March 1999 Commonwealth Bank of Australia (ACN 123 123 124) served a notice of demand on Douglas Keith Tyler purportedly in accordance with s 57(2)(b) of the Real Property Act 1900 (NSW) demanding the payment of $545,298.27. That notice indicated that failing compliance with the demand within one month after service of the notice it was proposed to exercise the power of sale in respect of the subject land and also the land covered by special lease 1961/63 contained in folio identifier 94/726640, being the 4.041 hectares. 138 Thereafter proceedings for possession were instituted by the Bank against Douglas Keith Tyler which resulted in the following orders being made by Master Malpass in the Supreme Court of New South Wales on 14 December 1999, which orders were entered on 7 February 2000, namely:- "1. That the defendant give the plaintiff possession of the land described in the schedule. [being the subject land and the 4.041 hectares] 2. That the defendant pay the plaintiff's costs." 139 Whilst the Appellant acquired the subject property in November 2000 it is clear that his uncle, Douglas Keith Tyler, wanted to retain it. 140 By facsimile dated 25 January 2000 Cowley Hearne Lawyers for Commonwealth Bank of Australia advised Douglas Keith Tyler's solicitors Catherine McKimm & Associates that the "payout figure for the loan (including legal costs) as at 25 January 2000" was $662,714.98 with interest accruing at the rate of $202 per day. 141 Faced with non payment of the amount outstanding the Bank secured possession of the various parcels of land on 13 April 2000 but, thereafter, Douglas Keith Tyler unlawfully re-entered into possession of them. 142 By facsimile dated 27 September 2000 Peter Marr & Associates, the then solicitors for the Appellant, made a formal offer to the bank to purchase the Tyler family property for $620,000. The facsimile included a paragraph as follows:- "I note that you would be prepared to allow DK Tyler to be the Vendor if the offer is accepted. This would be greatly appreciated as it allows my client to avail himself of significant legislative benefits." 143 The significant legislative benefits referred to would appear to have been the availability of an exemption from stamp duty in relation to the contract for sale and subsequent transfer if the farm property was to be handed down from one family member to another. 144 By letter dated 28 September 2000 the Bank, referring to the balance outstanding on the loan to Douglas Keith Tyler being $649,751.86 advised the Appellant that the offer of $620,000 "in full and final settlement of the above loan account" was rejected but that the Bank would accept an amount of $635,000 to satisfy its current level of debt subject to certain conditions. 145 By facsimile dated 3 October 2000 the solicitors for the Appellant made a formal offer to Commonwealth Bank of Australia on behalf of the Appellant to purchase the property, 'Home Farm' and 'The Big Top' at Tyringham, for an amount of $635,000, noting the Bank's conditions. 146 By letter dated 3 October 2000 to the Appellant the Bank accepted the offer of $635,000 subject to the conditions outlined in the Bank's letter dated 28 September 2000 being met. The letter of acceptance included a paragraph reading:- "The Bank agrees the contracts for sale of the properties known as "Home Farm" and "The Big Top" may show Douglas Keith Tyler as the Vendor." 147 On or about 9 November 2000 a Deed was made between Douglas Keith Tyler, the Appellant and the Bank. This Deed relevantly provided:- "RECITALS A. In February 1996 the Bank advanced $535,000 to Douglas Tyler and took a mortgage ('the mortgage') over the whole of the property contained in folio identifiers 1/409844, 29/752847, 32/752847, 48/752847, 49/752847, 83/752847, 79/752847 and Mortgage of Special Lease 1961/63 Folio Identifier 94/726640 ('the security properties') …. D. On 13 April 2000 the Bank obtained possession of the security properties pursuant to the judgment. E. Without the consent of the Bank or leave of the Court Douglas Tyler has re-entered and remains in possession of the security properties. F. Michael Tyler has agreed to purchase the security properties from the Bank. [emphasis added] OPERATIVE PROVISIONS

Within seven days of signing this deed Douglas Tyler will deliver to the Bank a signed contract for the sale of the security properties between himself as vendor and Michael Tyler as purchaser for a price of $635,000.
Michael Tyler will 2.1 exchange contracts to purchase the security property (sic) on or before 10 November 2000 ('the exchange date'); and 2.2 complete the sale on or before 22 November 2000 ('the completion date'). RELEASES
Upon receipt of the net proceeds of sale by the completion date 3.1 the Bank agrees not to enforce the judgment debt and releases Douglas Tyler from any further claims arising out of the matters the subject of the proceedings or the re-entry of the security properties; … DEFAULT …
In the event the Bank shall proceed to a substituted sale at which the amount received by it (net of costs and expenses) is less than the net proceeds of sale referred to in paragraph 3, the release of Douglas Tyler and the provisions of paragraph 3.1 shall be severed from this deed and Douglas Tyler shall remain liable to the Bank pursuant to the personal covenants of the mortgage for the full amount of the judgment debt (less the net proceeds of any substitute sale). …" 148 In my opinion recital F speaks of an arrangement between the Appellant and the Bank which was itself displaced by the terms of the Deed. 149 Whilst clause 3 is silent on the matter the clear implication is that under the tripartite arrangement the net proceeds of sale under the contract for sale should be paid to the Bank rather than to Douglas Keith Tyler as the vendor under the contract for sale. 150 As indicated above a contract for sale was duly entered into between Douglas Keith Tyler as vendor and the Appellant as purchaser on 10 November 2000 and that contract was completed on 22 November 2000. On that day the Bank appears to have executed discharges of at least Memoranda of Mortgage Nos. 2028635 and 2028641. Presumably, Memorandum of Mortgage No. 2028637 was also discharged. 151 By letter dated 15 November 2000 the solicitors for the Appellant forwarded the Contract for Sale and the Transfers of the subject property to the Commissioner of Stamp Duties requesting that they each be marked "exempt from duty". 152 The Appellant's purchase of the subject property was financed by the company then known as Wesfarmers Dalgety Limited. 153 On or about 17 November 2000 the solicitor for the Appellant would appear to have spoken with the solicitor for Douglas Keith Tyler about an agreement between the Appellant and his uncle in relation to the uncle's continued occupation of the property which the Appellant was acquiring. 154 Shortly thereafter heads of agreement would appear to have been reached between the Appellant and his uncle which included the following:- "1. That Michael Tyler will buy the farm absolutely and become the registered proprietor absolutely.
That within 12 months of the date that Michael Tyler purchases the farm he shall offer all blocks for sale to Doug Tyler at a price to be agreed between the parties with the exception of Lot 79 ('Home Farm'), which will remain the property of Michael Tyler and will not be offered for sale to Doug Tyler.

[32]

Consideration of less value than the market value of the property 199 In this case the consideration given for the subject property by the Appellant was plainly $635,000. Accordingly, the question of whether s 120(1) of the Act requires the court to assign a particular value to the consideration given by a transferee for the property transferred does not arise (cf the judgment of Whitlam & Jacobson JJ in Official Trustee in Bankruptcy v Lopatinsky ("Lopatinksy") (2003) 129 FCR 234 at 249 [92] and that of Lindgren J in Anscor Pty Limited v Clout ("Anscor") (2004) 135 FCR 469 at 478-9 [36]). 200 The question becomes what is meant by the "market value" of the property transferred. Since 1907 the yardstick for determining market value has been the test proposed by Griffith CJ in Spencer v The Commonwealth of Australia ("Spencer") (1907) 5 CLR 418 at 432 namely:- "What would a man desiring to buy the land have had to pay for it on that day [in this case 10 November 2000] to a vendor willing to sell it for a fair price but not desirous to sell?" 201 As the Chief Justice proceeded to say at 432:- "It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together." 202 I see no reason to depart from or modify this test for the purpose of construing what is meant by "market value" in s 120(1) of the Act. I do not find the expression to be ambiguous or obscure, nor do I consider that a Spencer's case approach to determining market value would lead to a result which is manifestly absurd or unreasonable. Having said that, I note that paragraph 84.13 of the Explanatory Memorandum circulated by the authority of the then Attorney-General and Minister for Justice in relation to the Bankruptcy Legislation Amendment Bill 1996, by which the current s 120 was introduced into the Act, contained some material which tended to confirm that a Spencer's case approach was intended for use in determining 'market value' and some which could be said to confuse the issue. It relevantly provided:- "84.13…The expression 'market value' is intended to refer to the value of the property concerned if it were disposed of to an unrelated purchaser bidding in a market on an ordinary commercial basis for property of the kind disposed of, without any sort of discount or incentive for purchase being offered. The expression is not intended to include a situation where the property was being disposed of at a 'fire sale', at discounted prices because of some immediate need on the part of the owner to liquidate his or her assets. Of course, there may be differing opinions as to the precise market value of some property, for example house properties, where valuers or real estate agents may give kerbside valuations which spread over a range of monetary values. However, if the property was transferred for an amount less than the lowest amount in the range, the transfer would be a transfer at undervalue, for the purposes of the section." 203 The last sentence of the quoted passage does not, as I see it, support a proposition that "market value" for the purposes of s 120(1) means the lowest value of which there may be evidence by a person applying a Spencer's case approach. Furthermore, I do not consider that the reference to "real estate agents" giving "kerbside valuations" should lead to a determination of market value otherwise than by means of a Spencer's case approach. 204 In my opinion, it is the function of the court charged with determining the market value of a property on a given day to assign a precise market value to it, if the evidence allows, and not simply to pick "the bottom of the range". As I see it, the last sentence quoted is simply illustrative of a case where the consideration given will inevitably be less than the market value. 205 In Lopatinsky at 249 [92] Whitlam and Jacobson JJ stated the purpose of s 120 in its current form to be as it was in respect of its predecessors, namely:- "… to prevent properties, including the matrimonial home, from being transferred to related parties to the disadvantage of the bankrupt's creditors. Disadvantage will occur if the property is transferred for no consideration or for less than market value. …" 206 If the consideration given is of less value than the market value of the property as determined and the trustee has elected to seek relief under s 120, the transfer of the property will be void against the trustee. In this context, "void against the trustee" means voidable, but the court has no discretion to grant or refuse relief. As Lindgren J said, and Wilcox and Moore JJ agreed, in Anscor at 478 [34]:- " … if the transferor (later the bankrupt) sells land having a market value of $1 million for $950,000 at any time in the period beginning five years before the commencement of the transferor's bankruptcy and ending on the date of the bankruptcy, the provision is activated." 207 I would observe that the deficiency which his Honour considered in the above illustration was a mere 5%. Paraphrasing his Honour, the provision would be activated in the case of land having a market value of $758,000 were the transferor (later the bankrupt) to sell the land for $720,100. 208 In my opinion, the court's powers under s 30(1) of the Act do not allow any relief to be granted from the strict consequences of a transfer of property at under value for which s 120(1) provides.

[33]

The appointment of a Court Expert mid-trial 209 There are certainly precedents for the appointment of court experts well down the track: In Minnesota Mining and Manufacturing Company v Beiersdorf (Australia) Limited (1980) 144 CLR 253, a patent case, an order was made appointing an expert after the conclusion of the evidence. No suggestion was apparently advanced in the High Court to the effect that such an appointment was inappropriate at that stage of the proceedings. 210 The relevant Federal Magistrates Court Rules 2001 have been quoted by Branson J whose judgment, along with that of Bennett J, I have had the advantage of reading in draft. 211 Undoubtedly, the Federal Magistrate had power to appoint Mr Knight as a court expert, to receive his report into evidence and to allow cross-examination of him. The question is whether his discretion to do so in the circumstances in which he did, miscarried. 212 An appellate court ought to be "very slow to interfere with the discretion of the trial judge" on such matters (Watson v Watson at 206). As Kitto J observed in Lovell v Lovell (1950) 81 CLR 513 at 532:- "It may be … that the restraint to which a court of appeal should submit itself is less stringent where the exercise of discretion is determinative of legal rights [which was not the case here] than it is where the discretion relates to points of practice or procedure. But even in the former case the court of appeal must guard against reversing a discretionary decision merely because it would itself have decided the matter differently; it is not justified in substituting its own judgment for that of the primary judge unless it is clearly satisfied that his judgment was erroneous." 213 In the present case, the appointment of the expert was not directed at providing evidence to meet that of the Appellant on the question of market value. The Appellant filed no such evidence. It was made for the purpose of allowing the interests of Douglas Keith Tyler's creditors to be vindicated in an economical way that was perceived by the Federal Magistrate as one which would limit the commitment of resources by the court to continuing with the hearing in a conventional way, with rulings on the admissibility of documents providing evidence of value, seriatim. The order was not directed at financially assisting the Respondent in the conduct of his case before the Federal Magistrate. 214 Other documents relevant to a determination of the market value of the subject property were later admitted into evidence as part of an "agreed bundle" which became Exhibit 4. These included Wesfarmers Dalgety Limited's assessment of the Appellant's finance application which recorded the land as having a fair market value of $1,130,000, an Australian Rural & Agricultural Finance Pty Limited Rural Loan Application of the Appellant dated 18 July 2000 representing the subject property as having a value of $1,250,000, and Douglas Keith Tyler's balance sheet as at 30 June 2000 which attributed a value of $1.2 million to his interest in freehold land, Tyringham - at Valuation. 215 No submission was put by the Appellant that if the process of "filleting" the available evidence as to value as at 10 November 2000 had proceeded and an application had then been made for an adjournment to allow further evidence to be called, the application would, inevitably, have been refused. Nor was a submission put to the effect that had the Respondents sought to call evidence orally from Mr Potter, who was then a witness in chief in the proceedings, the court would have, inevitably, refused such an application. 216 In my opinion, when one carefully analyses the factual context in which the order appointing the court expert was made, it is not apparent that the learned Federal Magistrate fell into error in doing so. His exercise of his discretion should not be disturbed. 217 I turn now to the specific grounds of appeal relied upon by the Appellant.

Parties

Applicant/Plaintiff:

Tyler

Respondent/Defendant:

Thomas

Legislation Cited (6)

Federal Court Rules 1979(Cth)

Bankruptcy Act 1966(Cth)

Evidence Act 1995(Cth)

Farm Debt Mediation Act 1994(NSW)

Real Property Act 1900(NSW)

Federal Court of Australia Act 1976(Cth)

Cases Cited (26)

Tyler v Thomas [2006] FCAFC 6 BANKRUPTCY - voidable transfers of property interests where consideration given is less than market value - whether sale of property by bankrupt to his nephew was a sale under market value - whether bankrupt's interest was a bare legal title of no market value. BANKRUPTCY - relationship between s 30 and s 120 of the Bankruptcy Act 1966 (Cth) - whether s 30 authorises an order that a transfer is not void against the trustee if a payment is made of the difference between the market value of the property and the consideration in fact given for the transfer. PRACTICE AND PROCEDURE - appointment of court expert - whether the Federal Magistrate erred in appointing a court expert - discussion of circumstances in which the court's discretionary power to appoint a court expert should be exercised. PRACTICE AND PROCEDURE - assessment of valuation of land - whether Federal Magistrate arrogated to himself the role of an expert valuer and brought his own opinions to bear on the question of valuation.

Federal Court Rules O 34 Federal Magistrates Court Rules rr 15.09, 15.10, 15.11 and 15.12 Abbey National Mortgages plc v Key Surveyors Nationwide Ltd [1996] 3 All ER 184considered Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411 applied Anscor Pty Limited v Clout (2004) 135 FCR 469referred to Arcus Shopfitters Pty Ltd v Western Australian Planning Commission (2002) 125 LGERA 180 cited Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 referred to Brewarrana Pty Ltd v Commissioner of Highways (No 2) (1973) 6 SASR 541 cited Britten v State of Western Australia [2001] FCA 1256considered Federal Commissioner of Taxation v St Helens Farm (A.C.T.) Pty Ltd (1981) 146 CLR 336 referred to Fina Research SA v Halliburton Energy Services Inc (2003) 59 IPR 91 applied First Netcom Pty Ltd v Telstra Corporation Ltd (2000) 101 FCR 77considered Gale v New South Wales Minister for Land & Water Conservation (2001) 6(4) AILR 66 considered GSA Industries Pty Limited v NT Gas Limited (1990) 24 NSWLR 710 referred to In Re L (An Infant) [1967] 3 WLR 1149referred to In Re Saxton Dec'd [1962] 1 WLR 968 referred to Jones v National Coal Board [1957] 2 QB 55referred to Karenlee Nominees Pty Ltd v Gollin & Co Ltd [1983] 1 VR 657 referred to Lovell v Lovell (1950) 81 CLR 513 cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 referred to Minnesota Mining & Manufacturing Company v Beiersdorf (Australia) Limited (1980) 144 CLR 253 cited Newark Pty Ltd v Civil & Civic Pty Ltd (1987) 75 ALR 350 considered Official Trustee in Bankruptcy v Lopatinsky (2003) 129 FCR 234referred to Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217distinguished Players Pty Ltd v Corporation of The City of Adelaide [2001] SASC 369referred to Re Bilen; Ex parte Sistrom [1985] FCA 141 cited Re S (infants) [1967] 1 All ER 202 referred to Schmierer v Horan [2004] FMCA 16 referred to Spencer v The Commonwealth (1907) 5 CLR 418cited Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 referred to The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146cited Thomas v Tyler [2004] FMCA 864 referred to Trade Practices Commission v Arnotts Limited (1989) 21 FCR 318considered Watson v Watson (1968) 70 SR (NSW) 203 cited

[2001] SASC 369

[2004] FMCA 16

[2004] FMCA 864

(2002) 212 CLR 411

(2004) 135 FCR 469

(2002) 125 LGERA 180

(2005) 218 ALR 764

(1973) 6 SASR 541

(1981) 146 CLR 336

(2003) 59 IPR 91

(2000) 101 FCR 77

(1990) 24 NSWLR 710

(1950) 81 CLR 513

(2001) 52 NSWLR 705

(1980) 144 CLR 253

(1987) 75 ALR 350

(2003) 129 FCR 234

(2003) 127 FCR 217

(1907) 5 CLR 418

(2002) 55 IPR 354

(1997) 189 CLR 146

(1989) 21 FCR 318

[2001] FCA 1652

[1985] FCA 141

Cited By (13)

- Albany v Commonwealth

Ambrose (Trustee) in the matter of Poumako (Bankrupt) v Poumako

Bradley v Voltex Group Holdings Pty Limited

Carrafa v Chaplin, in the matter of the bankrupt estate of Michael Chaplin

Dobrinski v Shepard

Hilton International Australia Pty Ltd v Commissioner of Taxation

Hundy as Trustee for the Bankrupt Estate of Ryan v Southorn, in the matter of Ryan

Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd

That until Doug Tyler purchases land from Michael Tyler he will make all repayments to Wesfarmers as required by Wesfarmers when they fall due in consideration for his being able to continue his present rural and farming pursuits. …" 155 By a deed made 16 September 2001 between the Appellant and his uncle these basic heads of agreement were incorporated into a formal legal document. The final form of the deed was generally along the lines of the heads of agreement. 156 In the proceedings before the Federal Magistrate objection was taken to certain valuation evidence. A valuation of 754.9 hectares, presumably the subject property and the 4.041 hectares, by Mr K J Potter of North Coast Valuation Service Pty Limited was advanced by the Respondent. That valuation as at 17 February 1999 was in the sum of $700,000. 157 A valuation by Ernie Chiswell of City & Country Enviroservices dated 26 March 1999 in respect of timber standing on the subject property was also advanced by the Respondent. That valuation estimated the total merchantable value of the timber at $255,440. 158 A further valuation by Mr Potter of North Coast Valuation Service Pty Limited dated 31 May 1999 was advanced by the Respondent suggesting that if offered in subdivision the subject property and the 4.041 hectares would together realise $780,000. 159 A further valuation by Mr Potter as at 27 March 2000 of component parts was also advanced by the Respondent. 160 A report by David Nolan of L J Hooker Rural NSW expressed an opinion as to the "present day market place" value of the land emphasising that the opinion was not to be misconstrued as a formal valuation. The opinion was that 'The Big Top' having an area of approximately 700 hectares had a market value of $500,000 - $550,000 and 'Home Farm' having an area of 54.4 hectares had a value of $300,000 - $350,000. 161 A further valuation by Mr Potter of North Coast Valuation Service Pty Limited dated 20 May 2003 was advanced by the Respondent expressing a revised estimate of the value of the 754.9 hectares as at 10 November 2000 of $815,000. 162 A valuation of Peter W Sanger obtained on instructions received from the Appellant indicated that the subject property together with Lot 94 in DP 726440 being a total area of 700.500 hectares had a fair current market value as at 8 May 2000 of $1,130,000.00. 163 Accounts dated 4 July 2001 prepared for Douglas Keith Tyler as at 30 June 2000 showed his interest in the Tyringham land at $1,200,000 "at Valuation". 164 When the Appellant applied to Wesfarmers Dalgety Limited for a loan to enable him to purchase the subject property he apparently represented the fair market value of 'The Big Top' to Wesfarmers Dalgety Limited at $1,130,000 presumably relying upon the valuation report of Peter W Sanger. 165 As indicated above the hearing before the Federal Magistrate was disjointed. Following a bracket of dates in November 2004 it was followed by a further bracket of dates in March 2005. The reason for the four month adjournment was to enable a court appointed expert to provide a valuation of the subject property. In the result Mr L M Knight of KnightDavidson Property Advisory determined the fair market value of the property on a "Present Title" basis with vacant possession as at 10 November 2000 to have been $720,000. He also expressed an opinion that it had a "Forced Sale" value on a "Present Title" basis with vacant possession as at 10 November 2000 of $635,000. The property said to have been valued had an area of 754.9 hectares which would appear to have included the subject property and the 4.041 hectares. The description of the property valued seems to have excluded Lot 49 in DP 752847 but this would appear to have been the product of a typographical error rather than a substantive omission. 166 When the then counsel for the Respondent called Mr Potter to give evidence he was taken to his affidavit of 28 September 2004 to which his reports were annexures. Objection was taken by counsel for the Appellant to "the three reports". Leading counsel for the Appellant, Mr R D Marshall, said "Essentially, we say the reports don't meet the requisite standard for a Court expert report". By reference to one of the reports of Mr Potter, Mr Marshall said "the reasoning process just is not disclosed". 167 Needless to say, it is not the function of this Court on this appeal to rule on the admissibility of Mr Potter's various valuation reports. Suffice it to say that a court considering the admissibility of those reports would be constrained to have regard not only to s 79 of the Evidence Act 1995 (Cth) and the views of Heydon JA, as his Honour then was, with respect to evidence tendered as expert opinion in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 but also to considerations such as those raised in the helpful reasons for judgment of Branson J and, Weinberg and Dowsett JJ in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 and in the reasons for judgment of Spigelman CJ in Australian Securities and Investments Commission v Rich (2005) 218 ALR 764. 168 The Federal Magistrate responded to Mr Marshall's objections to the tender of the Potter valuation reports by considering their admissibility, especially in the case of the valuation as at 10 November 2000, by reference to the absence of some form of reasoning. He also addressed the question of weight to be given to the reports, if admitted, especially in relation to conclusions which might be drawn as to the value of the subject property as at 10 November 2000 by reference to the 1999 valuations. 169 At transcript page 43 of 15 November 2004 his Honour said:- "But the real point he has made, let us assume … that I say that this document, the last one [as at 10 November 2000], … can utilise by inclusion … the other two reports so that to the extent that he [Mr Potter] requires some form of reasoning to get somewhere he has got the two reports, but what he does not do … is … show you how he has jumped from either of those two documents to the current figure and that is the real vice. …" 170 The Federal Magistrate then observed to counsel appearing for the Respondent:- "… maybe it is lucky that we are going to adjourn for half a day. At the moment I'm against you …" 171 Counsel for the Respondent replied:- "Well, the option is, I have to now seek an adjournment to do it in a formal sense." 172 The Magistrate responded:- "… The document [referring to Mr Potter's valuation as at 10 November 2000] does not help me ... If I thought I could be helped by it I would probably find some way of allowing you to get it in but I can't be helped by it as Mr Marshall quite rightly says. How do I know how it [sic] got there?" 173 At that stage the Federal Magistrate indicated to counsel for the Respondent that he was not disposed to give the Respondent some sort of general adjournment. 174 It would appear that his Honour then adjourned the matter to allow the parties to proceed with a mediation on the afternoon of 15 November 2004. However, the mediation did not produce a satisfactory outcome. 175 On the morning of 16 November 2004 counsel for the Respondent sought to tender a series of documents relying in part on s 69 of the Evidence Act 1995 (Cth). At that stage the Appellant sought a short adjournment which was granted. 176 When the matter resumed at 11:33 am the Court embarked upon a consideration of the documents which the Respondent wished to tender, seriatim. His Honour proceeded to admit the first document under consideration and then moved to consider the tender of Mr Potter's valuation of 17 February 1999. Counsel for the Appellant took objection to the tender notwithstanding that Mr Potter was then a witness in the proceedings whose evidence in chief had commenced on the previous day. 177 When counsel for the Appellant addressed the Court on Mr Potter's use of comparable sales within the immediate vicinity to assess market value, counsel for the Appellant took exception to the fact that the comparable sales on which Mr Potter relied had not been the subject of independent proof. Counsel for the Appellant queried whether Mr Potter had gleaned his information about comparable sales by attending auctions of the properties the subject of those sales and seeing them knocked down for the prices mentioned. 178 At this stage the Federal Magistrate said:- "All right, Mr Marshall, I think I have power under my Act to deal with all of this. Maybe I can appoint a Court expert, Mr Marshall. Will the Court expert give me a valuation. Would you like me to do that?" 179 Counsel for the Appellant indicated that he did not wish the Federal Magistrate to proceed in that way. He submitted that the Federal Magistrate should simply reject the tender of the evidence. 180 The Federal Magistrate then responded:- "… This is a bankruptcy case. This case concerns a lot more than just the people who are here. There is a public interest element in it. The public interest element is that the creditors of this bankrupt who are not going to get a penny … or … not … very much may get some more if your client has to give back the property. … I haven't made up my mind about anything but you only have to read the papers to see, or to suspect that your client thought he was getting a deal ... . Values of property - I may not be allowed to look at those papers, eventually you may say, but there's his uncle on the farm, they want to keep it [in] the family. … I don't know what the value of this property is, but if the value of the property is more [then] the matter ought to be looked in to and that is a public interest matter and if all we are going to do is spend the whole of the rest of the day arguing piece by piece over every piece of paper … I am not going to sit here all day and argue about whether this - can this go in and this, whether the valuer looked at the other premises, properties. …" 181 Counsel for the Appellant then urged upon the Federal Magistrate that the unsatisfactory situation which then existed had been caused by the Respondent's failure to properly prepare his case with admissible valuation evidence. 182 In the course of the argument which followed about whether an expert valuer should be appointed by the court his Honour said to counsel for the Appellant:- "It seems to me that if I appoint an expert, I mean you can cross-examine the expert, you can even bring your own expert to use against that expert's opinion. It does mean that we don't have to go through all of this nonsense." 183 On 17 November 2004 his Honour ordered pursuant to Rule 15.09 of the Federal Magistrates Court Rules that the question of the market valuation of the land, including the subject property and the 4.041 hectares, as at 10 November 2000 be referred to Laurie Knight of KnightDavidson Property Advisory for "inquiry and report". 184 In due course Mr Knight produced the valuation as at 10 November 2000 referred to above, his assessment of the market value being $720,000 ie. $85,000 more than the price which the Appellant agreed to pay Douglas Keith Tyler under the Contract for Sale of Land dated 10 November 2000. 185 In his reasons for judgment dated 16 November 2004 in relation to the appointment of a Court expert the Federal Magistrate said, inter-alia:- "3. Before the valuer [Mr Potter] could commence his evidence, [counsel for the Appellant] … objected to the third of the three valuations (which I accept as the most relevant one) being introduced into evidence. … I would have been disinclined to allow that evidence. 4. The next day [counsel for the Respondent] sought to tender a large number of documents which came from various sources… . The intended effect of [counsel for the Respondent's] tenders would be to admit, subject to some consideration about weight and certainly subject to the opportunity for [counsel for the Appellant] to cross-examine Mr Potter the valuer, both Mr Potter's valuations and some other valuations which had been obtained by the bankrupt and also by the [Appellant]. 5. By noon on the second day of the hearing … I was faced with a very lengthy argument as to admissibility of documents prior to some more lengthy cross-examination of a valuer. Because I took the view that the evidence of value of this property is an essential integer of the establishment of the case …, I proposed that I should appoint a Court expert to provide a valuation of the property pursuant to Rule 15.09 of the Federal Magistrate's Court Rules 2001. This proposal of mine has been supported by [counsel of for the Respondent] … but is objected to by [counsel for the Appellant] … . 6. … [counsel for the Appellant] says [counsel for the Respondent's] side have not prepared their case as well as they might insofar as the valuation is concerned and they should not be allowed 'off the hook' on this by my interposition of a court expert. Thus the matter can proceed in the manner in which it appeared to be going namely, that I should have to consider the admissibility of each of these documents and then might be left with a filleted valuation to which, hopefully for [counsel for the Appellant's] client, I would give little weight. [Counsel for the Appellant] also provided me with a copy of an affidavit of the [Appellant] explaining why he would be disadvantaged by a delay. The affidavit was prepared for the purposes of an anticipated application for an adjournment from [counsel for the Respondent] but I think it is equally relevant to my proposal. 7. I had considered that the appointment of a court expert would not require a full adjournment of the matter but having heard both [counsel for the Appellant] and [counsel for the Respondent] I am satisfied that it would not be in the interests of justice to force them to continue with the other limb of the case and that the matter should be adjourned. … … 10. My main concern when considering the question of appointment of a valuer was that I do not consider these proceedings just to be proceedings 'inter partes'. They are bankruptcy proceedings. There is a public interest in the outcome of these proceedings. If [counsel for the Respondent] is successful his client will have the benefit of additional funds to satisfy unsecured creditors of the bankrupt, that are not currently available. This is an important matter to take into account. It is doubtless the very reason why the trustee has bought (sic) the proceedings in the first place. I believe I am required to balance all the interests when coming to a decision such as the one that I have proposed. … 12. In all the circumstances and, whilst not in any way deprecating the situation of the [Appellant], I am of the view that the appointment of a court expert and the adjournment of the case is the appropriate way to proceed. …" 186 One can but speculate as to what might have occurred if the Federal Magistrate had declined to appoint a Court expert in the circumstances which then prevailed. Given the then availability of Mr Potter to give evidence orally and the availability of valuation evidence which the Appellant would appear to have represented to lending institutions as indicating the true value of the subject property, one could assume that even in a "filleted" form some evidence of value would have been admitted, the weight of which may or may not have been sufficient to allow a conclusion to be drawn as to the market value of the subject property on the critical date. 187 Depending upon the extent of the "filleting" one might infer that an application for adjournment would have been made by one or other of the parties to enable further evidence to be advanced, in admissible form, as to the value of the subject property on 10 November 2000. 188 It is trite law that a court has an inherent power to adjourn any matter which comes before it and that courts have a predisposition towards granting adjournments where a refusal to do so would be to defeat the rights of an applicant altogether. 189 The paramount duty of a court is to see that justice is done and in doing justice courts have recognised that the rights of both parties to the litigation must be considered (per Asprey JA in Watson v Watson (1968) 70 SR (NSW) 203 at 206). 190 In what has been described as a "more leisured age" an order for costs was generally regarded as complete compensation for delay occasioned by the grant of an adjournment. However, as Samuels JA said in GSA Industries Pty Limited v NT Gas Limited (1990) 24 NSWLR 710 at 716:- "…the emollient effect of an order for costs as a panacea may now be consigned to the Aladdin's cave which Lord Reid rejected as one of the fairy tales in which we no longer believe." 191 However in all such matters "Justice is the paramount consideration …". The interests of case management should not be allowed to prevail over the injustice of shutting out an applicant from raising an arguable case (see per Dawson, Gaudron and McHugh JJ in The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146 at 155). 192 As it transpires, the adjournment induced by the appointment of the Court expert did not lead to any further valuation evidence being obtained other than that provided by the Court expert himself. 193 Upon the resumption of the hearing on 14 March 2005 the valuation report of Mr Knight was, with the consent of both parties, admitted as Exhibit C1. Mr Knight was called to give evidence and his Honour allowed cross-examination of him by both parties. 194 Thereafter the Appellant was called to give evidence. In the course of his evidence he admitted that when he applied to Wesfarmers Dalgety Limited for finance in respect of his purchase of the subject property he gave them Mr Sanger's $1.13 million valuation. He indicated that he didn't think that the property "was quite worth that" however he acknowledged that by proffering the valuation to Wesfarmers Dalgety Limited he represented that it had such worth. 195 When asked whether he considered the subject property to be worth substantially more than the price at which he had arranged with the Bank for his uncle to transfer it to him, the Appellant said:- "Well, I thought it could have been worth a little bit more, yes. But I wasn't willing to pay any more." 196 In his reasons for judgment of 29 March 2005 the Federal Magistrate noted that Mr Knight considered that there could be a 5% leeway either way on his valuation. 197 His Honour continued:- "18. Although I believe that Mr Knight stood his ground very well in the face of intelligent and experienced cross examination from [senior counsel for the Respondent] I was left with the view that his figure of $720,000 may have been towards the low end of any range. … I would therefore tend to increase the value of the land from $720,000 by 5% which would make the property worth approximately $758,000." 198 The Federal Magistrate found that all the constituent elements of s 120 of the Act save for market value had been satisfied. He then continued:- "25. … The views which I have expressed above based upon the evidence that I heard satisfy me that this property was sold below market value and therefore s 120 would apply unless it was suggested that any one of the exemptions was relevant. No such suggestion has been made. …"