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Property – court free to make findings as to value where range of values provided

In Samper [2021] FamCAFC 140 (5 August 2021), the Full Court (Ainslie-Wallace, Watts & Austin JJ) dismissed with costs a husband’s appeal from a decision of Judge Smith where each party owned a business.

The husband’s business operated from rented premises. A single expert valuer opined that the business would have goodwill of $100,000 to $150,000 if the husband obtained a lease with a minimum term of five years ([18]), and that the plant and equipment of the business was worth $45,624.

The court found the business was worth a total of $162,093, being:

i) the plant and equipment of $45,624, plus…

ii) $125,000 for goodwill (being the average between the $100,000 and $150,000 range), with a 5% discount to reflect there being no signed lease.

The husband appealed.

The Full Court said (from [22]):

“It was within the ‘specialised knowledge’ of the … valuer to provide his opinion … by way of a range of the value of the business if a new lease was entered into, or … available (…)

[23] (…) Given the … judge found the opportunity … to obtain a new lease was ‘very likely’, it was open to his Honour to adopt a range of values that assumed that …

[24] … [W]here a valuer has provided a range … the court is free to form its own view as to the proper value … It is usually inappropriate to … select the mean of two valuations (… Commonwealth v Milledge [1953] HCA 6; …).

However … both parties submitted that the … judge pick the mid-point, albeit of different ranges. … ”

[25] The husband argues that … it was not within the … judge’s expertise to make an allowance for a lease being available or unavailable … when there was no evidence from the landlord as to his intention to continue the lease (…)

[29] Given the … judge concluded that there was a high probability that there could be a new lease, it was open … to select the discount …”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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