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15 December 2017

Let’s disagree to agree

Family Law
Federal

Asked

Family law - Handwritten agreement and consent orders

A hand written agreement was entered into at the end of a mediation. The agreement was to be formalised into consent orders. This has not yet occurred.

Since the mediation it has come to light that one of the properties should have been valued as a development site rather than as residential property.

The original valuation was done by a jointly appointed valuer. My client (husband) has since obtained a second valuation by a valuer he has directly engaged.

The difference in value is some $260,000 which would favour the wife entirely.

The husband suspects that the wife knew of the prospect of the property being worth significantly more, and the husband would not have entered into the agreement that he did had he known the value of the property was that much more.

Questions are:

1. What are the rules/laws around seeking to amend the hand written agreement in these circumstances? What would you recommend in these circumstances?

2. What would the best avenues/strategies be in relation to the valuation being challenged?

Many thanks in anticipation.

Answered

The handwritten agreement is not binding until consent orders are made (however they may be relevant if a costs application is made). The authority for that is McLean.

It is suggested that a letter be written to the other side, notifying them that it has come to your client’s attention that the property ought to have been valued as a development site, not a residential site, because those instructions weren’t given to the single expert, or due to a deficiency in the single expert’s report, or due to a change in zoning. In any event, the reason ought to be addressed in the letter if known. They should be advised that your client has obtained a valuation from a different valuer, and it should be provided to them. It is suggested that the single expert be jointly instructed to update the valuation in light of the new information or to rectify the error if there was one.

If they agree, the single expert may be instructed and the valuation may be updated. You may need to arrange another mediation or alternatively exchange written offers in light of the new valuation.

If they don’t agree to update the valuation, then your options depend on whether you’re already in court. If proceedings are on foot in the family Court, then you would need to either seek an order of the court that the single expert be instructed with the new information, or seek leave pursuant to Family Law Rule 15.49 to adduce evidence from another expert. If proceedings are in the Federal Circuit Court, the single expert rules don’t apply so you could seek to admit the evidence of the second expert.

If the parties are not in court, then the client is at liberty to obtain the alternative valuation. If an agreement is not reached on the basis of the two reports, a conference of experts may be required. If they disagree on figures after being provided with the same information, then proceedings would need to be issued and the court would decide.

Regards

Mentor