Owners in dispute or heading to court? An expert valuation report written for the rules that apply.

When agency owners cannot agree on a price, a buy-sell or deadlock clause is triggered, a sale ends in a claim, or proceedings are on foot, the valuation becomes evidence. We prepare expert reports on agencies, rent rolls, client books and owners' interests in them, at a fixed fee of $4,495 + GST for any size, with the delivery date agreed before commencement. Delivery time starts once payment and all required information have been received. Each report sets out its questions, facts, assumptions and reasons separately, so it can be tested.

Which agency disputes need a valuation?

The question the valuation answers depends on the dispute. Whether a claim succeeds, and how any loss is measured in law, are for your lawyer and the court.

What can a court order in an owners' dispute?

Under section 232 of the Corporations Act 2001, a court may make orders where the conduct of a company's affairs, or an actual or proposed act, omission or resolution, is contrary to the interests of the members as a whole, or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members. The orders available under section 233 include winding up the company, the purchase of any shares by any member, and the purchase of shares with an appropriate reduction of the company's share capital.

Under section 234, a person who has ceased to be a member can apply if the application relates to the circumstances in which they ceased to be one, which can matter to a shareholder who has already left the agency. Where the agency runs through a partnership or unit trust, what a court can order is a question for your lawyer.

What makes a valuation usable as evidence?

A valuation that persuades the person who paid for it is not the same as one a court can use. In the Federal Court, a party retaining an expert must first give the expert the Court's practice note on expert witnesses, and the Federal Court Rules 2011 say an expert report must, among other things:

• ·Be signed by the expert who prepared it
• ·Acknowledge at the beginning that the expert has read, understood and complied with the practice note
• ·Give the training, study or experience by which the expert has specialised knowledge
• ·Identify the questions the expert was asked to address
• ·Set out separately each factual finding or assumption the opinion is based on
• ·Set out each opinion separately from those facts and assumptions, with reasons for each

Can each side have an expert, or share one?

Under the Federal Court Rules, where two or more parties intend to call experts on a similar question, a party can apply for orders such as the experts conferring and producing a document showing where their opinions agree or differ. A party can also apply for the Court to appoint its own expert, and the Court may do so of its own motion; if the Court fixes that expert's remuneration, the parties are liable for it jointly and severally. Other courts and tribunals have their own rules, and your lawyer tells us which apply.

What evidence does an agency dispute turn on?

Agencies usually leave a good record of their income, and a dispute should be decided on those records rather than on recollection. We ask for the question in writing, the agreement or contract, the financial statements, and the system records for each date in question: rent roll schedules from the trust accounting system, renewal lists from the broking system, trail statements from lenders, retainer and billing records for marketing agencies, placement and contractor ledgers for recruitment, and booking reports for travel. Earlier valuations, offers and appraisals are read as documents, not taken as evidence of value on their own.

Where the conduct complained of moved value out of the agency, the report can show values with and without the effect of each item your lawyer instructs, so the court can see what turns on it.

How is the expert's independence protected?

The fee is fixed in writing before we start and does not depend on the value we reach or the outcome. Before accepting, we check whether we have acted for any party or valued the agency before, and disclose anything relevant. We do not accept instructions to reach a predetermined result, and the party paying for the report does not choose its conclusion. Each report follows the guidelines of APES 225 Valuation Services.

What does an expert report cost?

An agency matter in dispute or heading to court is an expert report engagement at $4,495 + GST for any size, with the delivery date agreed before commencement against any court timetable. If the court later directs further work, such as an experts' conference, we confirm its scope and fee in writing first.

The band is set by the annual revenue, excluding GST, of what is being valued: a rent roll's annual management income when the rent roll is valued on its own, an insurance or mortgage book's annual recurring income when the book is valued on its own, or the agency's total annual turnover when the whole agency, or shares or units in it, are valued. A business on exactly $3 million is Medium, and one on exactly $10 million is Large. Add-ons: +$495 per retrospective (past) valuation date, and +$795 per additional entity. Delivery time starts once payment and all required information have been received.

• ·Corporations Act 2001 (Compilation No. 148), sections 232 to 234, Federal Register of Legislation
• ·Federal Court Rules 2011 (Compilation No. 11), Part 23 Experts, Federal Register of Legislation