Aitken & Aitken (No 2)
[2022] FedCFamC1F 71
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aitken & Aitken (No 2) [2022] FedCFamC1F 71
File number(s): SYC 5021 of 2019 Judgment of: WILSON J Date of judgment: 11 February 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – ruling – access to premises – orders necessary – orders made. Cases cited: Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 327 Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 11 February 2022 Place: Melbourne Counsel for the Applicant: Mr M. Kearney of Senior Counsel Solicitor for the Applicant: Nolan Lawyers Solicitor for the Respondent: Avondale Lawyers ORDERS
SYC 5021 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AITKEN
Applicant
AND: MR AITKEN
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
11 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The wife is authorised, notwithstanding any prior order to –
a)provide all directions and authorities necessary to authorise and permit the PP Group to communicate with all and any single experts appointed in these proceedings, including but not limited to JJ Group, and to provide all documents and information as may be requested by any single expert for the purpose of preparation of their opinion/evidence, in the absence of and notwithstanding any purported direction by or on behalf of the husband’s to the contrary; and
b)provide any and all instructions, documents and information as may be requested by all and any single experts appointed in these proceedings forthwith upon receipt of any such request without first obtaining the consent of the husband, provided that all such communications shall be copied to the solicitors for the husband.
2.Further to paragraphs 14 and 15 of 24 November 2021, the husband is restrained from attending upon or within 200 metres of each of the properties known as and situate at the addresses below. Monday 14 February 2022, between the hours of 7.00am and 7.00pm and such other day(s) between the hours of 7.00am and 7.00pm as the solicitors for the wife shall nominate in writing to the solicitors for the husband on or before 5pm on 15 February 2022 –
a)J Street, Suburb H, New South Wales;
b)1 G Street, Suburb H, New South Wales;
c)2 G Street, Suburb H, New South Wales;
d)4 G Street, Suburb H, New South Wales;
e)3 G Street, Suburb H, New South Wales; and,
f)UU Street, Suburb H, New South Wales;
3.To the extent that it may be required, the husband must provide unrestricted access to the premises for the wife and valuer and where required, gates must be open and all locks unlocked.
4.Permission is refused for the husband to put to D Pty Ltd’s business valuers for their consideration the press release exhibited to Mr Gutierrez’s affidavit dated 10 February 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aitken & Aitken is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
The trial is proceeding and has been fixed to start in the Major Complex Financial Proceedings List on 8 March 2022.
Trial directions were made in 2021.
Two urgent issues have arisen which unless determined immediately could jeopardise the start date of the trial.
Mr Gutierrez, the husband’s solicitor, sought to ventilate a third issue ore tenus without written application that he also said should be determined now ahead of the trial.
The two applications may be briefly stated.
The first relates to a stocktake.
On 17 November 2021 I made orders by consent, paragraphs 12 to 15 of which bore upon the stocktake that is in issue. Relevantly condensed, pursuant to paragraph 15 of those orders, by 4:00pm on 1 October 2021 the directors of D Pty Ltd (the husband and wife) were required to instruct PP Group to undertake and complete a stocktake as at 1 November 2021.
The stocktake was not undertaken as at November 2021. The letter of instruction to SS Company was only signed on 24 November 2021. Then followed a collection of activities none of which advanced the task of finalising the stocktake. Those activities were extensive. They included –
(a)on 30 November 2021 SS Company requested certain information from the husband that the husband did not provide;
(b)on 30 November 2021 SS Company emailed the parties’ solicitors stating that the husband was willing to permit the valuers to attend at the premises the following day, but not before 5:00pm, and that the valuers were not to attend the site prior to 5:00pm;
(c)on1 December 2021 the wife’s solicitors wrote to the husband’s solicitors requesting, forthwith, the provision of details of items he asserted were owned by third parties and why those items were on the premises, to which correspondence the husband did not reply;
(d)on 1 December 2021 the wife’s solicitors wrote to the husband’s solicitors stating that all stock should be valued irrespective of ownership, to which correspondence the husband did not reply;
(e)later on 1 December 2021 the wife’s solicitors sought verification from the husband’s solicitors that the husband had made his payment to SS Company, to which SS Company informed the parties’ solicitors that the husband had paid, yet at quarter to six that evening, SS Company informed all solicitors that the husband had cancelled the stocktake on the basis that SS Company did not arrive at the premises until 6:00pm that evening and SS Company notified the parties that it intended to charge additional time in view of the husband’s intransigence;
(f)the husband and SS Company continued to debate the husband’s 5:00pm stipulation for the stocktake to take place and the wife continued to insist on all stock being valued;
(g)on 2 November 2021 SS Company emailed the parties recording that the husband took the view that third-party stock should not be counted;
(h)on 8 December 2021 SS Company confirmed its valuers had attended on 2 and 3 December only to learn that the husband had denied them access on 8 December;
(i)on that day (8 December 2021), the wife threatened to invoke the access arrangements recorded in paragraphs 13 to 15 of the 24 November 2021 trial directions if the husband did not provide access;
(j)on 20 November 2021 the wife’s solicitors sent an email to SS Company seeking confirmation that the husband had in fact provided access;
(k)later in the day on 20 December 2021 SS Company informed the parties’ solicitors that the husband would not allow access on weekdays, that he would offer access on Saturday 11 December, but he was not willing to pay weekend rates, and that the husband’s requirements had made the valuer’s stocktake “absolutely impossible” (the valuer’s words);
(l)on 23 November 2021 in response to the wife’s email to SS Company informing it that she could provide access in accordance with the trial directions, at 11.30am the husband invited SS Company to complete the stocktake between 23 December 2021 and 10 January 2022, yet within an hour thereafter, SS Company responded to say its business was closed until 10 January and that the husband had not provided any of the information the valuers had requested;
(m)on 18 January 2022 the wife’s solicitors emailed SS Company stating that she would provide access in accordance with paragraphs 13 to 15 of the trial directions;
(n)on 23 January 2022 SS Company informed the parties that all but $1,000 of that firm’s original quote had been expended;
(o)on 25 January 2021 the wife’s solicitors emailed SS Company informing it that Mr TT had been appointed as a single expert and therefore no requirement existed for the parties to approve the quotation;
(p)on 27 January 2022 the wife’s solicitors wrote to SS Company stating that it was imperative that the stocktake be completed as a matter of urgency without delay and that the wife could facilitate access on 5 January 2022;
(q)on 27 January 2022 the husband’s solicitors emailed SS Company stating that he did not agree with the revised quotation;
(r)half an hour later, on 27 January 2022, the wife’s solicitors emailed SS Company stating that the wife would facilitate the completion of the stocktake and that the husband’s approval of the fees estimate was not required;
(s)on the same day SS Company emailed the parties’ solicitors to confirm the details of a site visit in the next week;
(t)on 31 January 2022 the wife paid the invoice of SS Company;
(u)on 9 February 2022 at 9.30 am, or thereabouts, the wife attended at D Pty Ltd’s premises with her son and met the valuers on site only to find that between 10 and 11 am the husband refused them access; and
(v)on 10 February 2022, the husband nominated 14 February 2022 as the new date for the valuers to complete their stocktake.
Against that undisputed factual backdrop, the solicitors for the husband submitted before me that the wife’s application was premature because the husband has nominated 14 February 2022, that is to say – next Monday – for the valuers to have access to D Pty Ltd’s premises so as to complete the stocktake.
In response, Mr Kearney, senior counsel for the wife, submitted that the husband should not be accepted at his word that he will facilitate access next Monday, having regard to the array of previously unsuccessful attempts by the valuers to secure access for the purpose of facilitating the stocktake.
In my view, there is merit in the wife’s contentions. On several occasions in the period from 24 November 2021 to 10 February 2022, the husband was less than diligent in doing as he had been ordered pursuant to paragraph 15 of the consent orders made on 17 September 2021. Equally, the husband was less than diligent in complying with paragraph 12 of the 24 November 2021 orders, in that the husband failed and continues to fail to provide documents as requested by the valuers. Further, the chronology outlined above revealed that the husband cancelled inspections in early December 2021, on 20 December 2021, and on 9 February 2022.
The role of SS Company must be carried out under a seriously truncated timeline in view of the complications that have arisen since 24 November 2021. The trial will commence on 8 March 2022, a matter of days from now. In my view, the risk of the work of the valuers being rendered nugatory by reason of access problems attributable to the husband is too great to leave access within the control of the husband. He has demonstrated a singular inability to do as must be done in order to facilitate access to enable the valuers to complete the stocktake.
Events reached a crescendo on 9 February 2022 when the wife, the parties’ son and a valuer from SS Company attended at D Pty Ltd’s premises. In her affidavit made on 10 February 2022 especially at paragraphs 27, 28, 30 and 31, the wife deposed in helpful detail to events onsite on 9 February 2022. Ultimately, police were called after the husband locked the gates to D Pty Ltd’s premises.
A stocktake in this case must be conducted. The wife has conducted herself in a manner consistent with the intendment of the orders made on 17 September 2021 and on 24 November 2021. The same cannot be said of the husband.
The husband may well honour his assurance to provide access on 14 February 2022. Conversely, if the past provides any useful indication of the future in relation to the husband diligently facilitating access, I feel no sense of satisfaction that the husband will in fact provide the requisite access. In those circumstances, I take the view that having regard to the proximity of the start date of the trial, no room for slippage any longer exists.
The wife’s counsel has proposed orders conferring upon the wife authority to provide, among other things, all and any instructions, documents and information as may be requested by any single expert. The wife also sought orders restraining the husband from attending on 14 February and 15 February 2022 at or within 200 metres of six specified parcels of real estate on J Street, G Street and UU Street, Suburb H, New South Wales.
To my mind, those orders are warranted. I make them now.
The second issue related to the husband’s failure to provide information as requested by the single expert accountant. Pursuant to paragraph 12 of the wife’s proposed orders, she seeks orders authorising her to provide that information. The wording of the proposed order 1.2 is deliberately wide, having regard to the fact that the husband has either failed, refused or neglected to provide information to single experts. In my view, the wife’s request is proper, it is timely, it will advance the factual status to enable the single expert to express opinions, and it will otherwise advance the forward motion of this case to trial within the very truncated time presently left. I make an order in terms of paragraph 1.2 of the wife’s proposal.
The third issue was the husband’s request for certain information to be provided to the valuers. The factual setting of that request was explored in a little detail in the affidavit of Francesco Jose Gutierrez sworn 10 February 2022. Relevantly synthesised, Mr Gutierrez deposed to the following matters –
(a)the firm JJ Group has been appointed as the single expert to conduct a valuation of D Pty Ltd; and
(b)in a press releases dated 2 February 2022, it was announced that a partnership would be entered into between the UK entity VV Limited and the QQ Group.
So far as the latter matter was concerned, Mr Gutierrez submitted that the effect of that partnership may very well amount to a market domination, rendering the cost to D Pty Ltd of its timber for pallet manufacture significantly greater than that which presently exists. Mr Gutierrez submitted that the press release should be provide to the business valuer of D Pty Ltd so that the valuers can express an opinion about the market impact of the partnership between the QQ Group and VV Limited will have.
Mr Kearney SC opposed the concept of that material being provided to the single expert, contending that pursuant to earlier orders D Pty Ltd’s value must be determined as a 30 June 2021 and the press release concerning the partnership is dated February 2022, over six months after the relevant date, thereby rendering the document about that partnership irrelevant. Mr Kearney SC submitted that one of the most influential High Court decisions on valuation was Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd[1] and the material that Mr Gutierrez wishes to put before the valuer fell beyond the ambit of that authority. In debate, I probed with Mr Gutierrez for his response to the manner in which he considered a business valuer might address the very limited information in the press release concerning the partnership between the QQ Group and VV Limited, especially having regard to the fact that no market information had come with the press release. In other words, it seemed to me to be highly unlikely that the information the press release would provide to D Pty Ltd’s business valuers would contain sufficient market information to enable the business valuers to opine whether, subsequent to the partnership between QQ Group and VV Limited, D Pty Ltd’s costs of materials would increase rendering D Pty Ltd’s value commensurately diminished. To my mind, the logic of that is a bridge too far.
[1] (1981) 146 CLR 327.
I was not persuaded that any utility would be served in providing the press release to D Pty Ltd’s business valuers. I refused to permit such a step.
In the upshot, I make orders in accordance with the wife’s minute which forms part of her case outline and I refuse permission for the husband to put to D Pty Ltd’s business valuers for their consideration the press release exhibited to the affidavit of Mr Gutierrez.
To the extent that it may be required, the husband must provide unrestricted access to the premises for access to the wife and valuers, and where required, all gates must be open and all locks must be unlocked.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 11 February 2022
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