Aarons and Aarons

[2018] FCCA 2270

FEDERAL CIRCUIT COURT OF AUSTRALIA

AARONS & AARONS [2018] FCCA 2270

Catchwords:
FAMILY LAW – Interim property – orders made.

Applicant: MS AARONS

Respondent: MR AARONS

File Number: PAC 2146 of 2018

Judgment of: Judge Newbrun

Hearing date: 27 June 2018

Date of Last Submission: 4 July 2018

Delivered at: Parramatta

Delivered on: 16 August 2018  

REPRESENTATION

Counsel for the Applicant: Mr Bolger

Solicitors for the Applicant: Golottas Solicitors Barristers & Conveyancers

Counsel for the Respondent: Mr Stenhaus

Solicitors for the Respondent: Court Solicitors & Barristers

ORDERS

1. The parties are to instruct Mr R of Valuations Pty Ltd as single expert to prepare a valuation report for the real property situated at and known as Property A in the State of New South Wales (“the property”).

2. To facilitate the preparation of the valuation report in Order 1:-

   (a)Within fourteen (14) days of the making of these Orders the parties are to cause their legal representatives to execute and forward a joint letter of instruction to Mr R in the form of Annexure ‘B’ to the Applicant wife’s Written Submission to the Court of 4 July 2018.

   (b)The fees charged by the single expert for preparation of the valuation report are to be shared equally between the parties.

3. An accountant be appointed to prepare and lodge the 2017 and 2018 tax returns for Business 1 with the costs associated with the preparation and lodgement of the tax returns to be paid by Business 1.

(3A)The Applicant is to nominate three (3) accountants within seven (7) days of these Orders and within a further seven (7) days, the Respondent is to select one (1).

1. That within fourteen (14) days of the appointment of the accountant, the parties shall provide to the nominated accountant, all documents and information necessary to complete the 2017 and 2018 tax returns for Business 1 including but not limited to Quickbooks or other electronic file.

2. That within fourteen (14) days of the making of these Orders, the parties will take all necessary steps and execute all necessary documents to jointly appoint, as a single expert, (omitted) to prepare formal valuations with respect to the following assets:-

   (a)prime mover (registration);

   (b)drop-deck extendable trailer (registration);

   (c)trailer drop-deck (registration);

   (d)drop-deck extendable trailer (registration);

   (e)flat-top trailer (registration);

   (f)Motor Vehicle 1 (registration);

   (g)Motor Vehicle 2 (registration).

(5A)The parties are to do all things necessary to allow (omitted) to undertake and prepare the formal valuations.

1. The parties are to instruct a single expert to prepare formal valuation reports with respect to the following:

   a.Business 1;

   b.Business 2 Pty Ltd;

   c.Business 3 Pty Ltd.

2. To facilitate the preparation of the valuation report in Order 6:

   (a)Within fourteen (14) days the Husband is to nominate three (3) suitably qualified valuers as proposed single expert including details as to their relevant qualifications   and their estimated fees;

   (b)Within fourteen (14) days of receipt of the list of proposed valuers from the Husband, the Wife is to select one (1) of those valuers to be instructed as the single      expert;

   (c)Each party shall co-operate in the collaborative drafting of a joint letter of instruction;

   (d)Both parties shall then do all things, sign all documents, give all consents, authorities and instructions as may be necessary to cooperate with the expert to enable the report to be prepared addressing such terms of reference as the parties submit;

   (e)The fees charged by the single expert for preparation of the valuation report are to be shared equally between the parties.

3. That within twenty eight (28) days of the date of these Orders, each party make full and frank disclosure to the other party as required by Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001.

4. Until further Order, the parties are restrained from disposing of, encumbering or otherwise dealing with their interest or any joint interest in the following assets without the express written consent of the other party:

   (a)The Property A property;

   (b)Business 1;

   (c)Business 2 Pty Ltd;

   (d)Business 3 Pty Ltd;

   (e)The plant, equipment and vehicles listed at paragraphs 5 (a) to (g) above; and

   (f)The Boat.

   Nothing in this restraining order shall prevent the Respondent husband from operating the business in the normal course of business.

5. Pending further Order, the Respondent is to continue to meet all liabilities and maintain the equipment, plant and vehicles listed at paragraphs 5 (a) to (e).

IT IS NOTED that publication of this judgment under the pseudonym Aarons & Aarons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2146 of 2018

MS AARONS

Applicant

And

MR AARONS

Respondent

REASONS FOR JUDGMENT

1. These property proceedings had their first return date on 27 June 2018 in a busy duty list.  The parties could not agree on directions for the further preparation of the proceedings and accordingly each party was directed within seven days to file and serve a short written submission in relation to the competing proposals for interlocutory property directions. 

2. A notation was made to the Court’s Orders that day that:

   The parties are content for the Court to consider the parties’ above written submissions in Chambers and make directions accordingly, without the need for further oral submissions. 

   This notation was made with the consent of the parties.

3. The parties duly provided their written submissions to the Court and the Court made Orders and directions in Chambers on 27 July 2018 relating to the further conduct of the property proceedings.

4. Then on 10 August 2018 the husband’s solicitors wrote to the Court’s Associate requesting “a copy of His Honours reason’s for judgment” in relation to the directions made by the Court on 27 July 2018.

5. The Court inferred from its Notation, referred to above, made on 27 June 2018 with the consent of the parties, that the Court’s Reasons for its directions made on 27 July 2018 were not required to be published to the parties.

6. Nevertheless, the Court now sets out below, in brief, its reasons for its directions made on 27 July 2018.

7. There is agreement as to Order 1.

8. As to Order 2, 14 days is a reasonable period to allow the parties to execute and forward the joint letter of instruction to the valuer.  The Court accepts the wife’s submission in this context.

9. Further as to Order 2, the Court notes that the parties disagreed as to the proposed contents of the joint letter of instruction to the valuer of the former matrimonial home. 

10. As is apparent from Order 2(a), the Court preferred the wife’s proposed joint letter of instruction to that valuer.  The background issue to this disagreement relates to a defective concrete slab still in existence at the subject property. 

11. The Court is of the view that the wife’s proposed joint letter of instruction to the valuer, inter alia, bringing to the valuer’s attention not only the engineer’s report of 20 November 2012, but also the wife’s particular contentions in relation to that report, including her contentions as to the relevance of that report to the proposed valuation (noting that the husband’s proposed letter of instruction does not refer to the wife’s contentions in relation to that report), is more likely to lead to a relevant and reliable valuation being produced by the valuer and avoid prolonged disputation and consequential litigation between the parties in relation to such proposed valuation.

12. As to Orders 3, 3A and 4, there was a dispute between the parties relating to the choice of accountant to prepare and lodge the 2017 and 2018 tax returns for Business 1, and a dispute as to who should pay the costs of such accountancy work.

13. The husband wants his own chartered accountant, allegedly familiar with the business, to prepare tax returns for the business.  The wife, on the other hand, seeks an independent accountant be nominated by the parties and used. 

14. She asserts her understanding that the husband’s chartered accountant, Mr B, is the husband’s cousin’s acquaintance and has now been appointed by the husband as the accountant for Business 2 Pty Ltd (apparently the parties’ former partnership business is now being conducted by that company).  In the view of the Court, it is reasonable that the wife seeks an independent accountant to be nominated and used.  Such an independent accountant will avoid any potential disputation and ensuing litigation between the parties relating to whether Mr B has prepared the tax returns properly, noting the concession by the husband that Mr B is his own chartered accountant.  Further, there is force to the submission of the wife that the preparation and lodgement of the tax returns is a business and related expense of the partnership and should be paid by the partnership, and which the court accepts.

15. Order 5A promotes the carrying out of Order 5.

16. As to Order 6, the Court agrees with the submissions of the husband.

17. As to Order 7(e), the wife had sought that the additional words, “but to be paid by the Respondent (husband) at first instance”, asserting that she lacks the financial capacity to share the costs of the valuations of the three entities, which assertion is disputed by the husband.  There is no material presently before the Court relating to the likely cost of the valuation of the three entities, and the contents of the Financial Statement of the parties to do not permit the Court to resolve this issue in the wife’s favour.

18. As to Orders 9 and 10, there is force to the written submissions of the wife in this context, and which the Court accepts.  In this context, the Court refers to the wife’s Affidavit filed 16 May 2018, including from paragraph 46 onwards.  Such Orders, in the view of the Court, are in the interests of justice, appropriate, and proper. 

19. The Court has, for abundant caution, added the words, at the end of Order 9, so as to leave no doubt that the husband is permitted to operate the business in the normal course of business, without any necessary consent of the wife, being, “Nothing in this restraining order shall prevent the respondent husband from operating the business in the normal course of business.”

20. In any event, the Court is of the view that the words in Order 9, “or otherwise dealing with their interest or any joint interest”, would not require the husband to seek the consent of the wife to carry on the business in the usual course, as those words relate to a different issue, not the normal carrying on of the business.

21. The Court, contrary to the submission of the husband, is of the view that Order 9 and 10 will not lead to further litigation.  Rather, there is a significant prospect that such Orders will prevent further litigation between the parties.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 16 August 2018