Alvey & Alvey

[2008] FamCA 1242

FAMILY COURT OF AUSTRALIA

ALVEY & ALVEY [2008] FamCA 1242

FAMILY LAW – PROPERTY– Valuations – where matter had previously been adjourned to allow a company to be wound up – where that company has not been wound up – where previous valuations of the company are outdated – updated valuations and trial documents ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Alvey

RESPONDENT: Ms Alvey

FILE NUMBER: ADF 130 of 2006

DATE DELIVERED: 21 October 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 21 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.M. Berman

SOLICITOR FOR THE APPLICANT: Kelly and Co

COUNSEL FOR THE RESPONDENT: Mr R. Richards

SOLICITOR FOR THE RESPONDENT: David Burrell and Co

Orders

1. That Mr H Accountant be appointed as the single expert to value the business N Pty Ltd.

2. That a joint letter of instruction be forwarded to Mr H by the solicitors for the parties by 4:00pm on 24 October 2008.

3. That the valuation report of Mr H of the business N Pty Ltd be filed and served by 4:00pm on 12 November 2008.

4. That the husband file and serve an updated affidavit of evidence in chief covering at least the topics of the changes in the business N Pty Ltd since March 2008, his current circumstances including financial circumstances, and the issue of add-backs insofar as it relates to his use of his share of the proceeds of the sale of the property at M, such affidavit to be filed and served by 4:00pm on 12 November 2008.

5. That the wife file and serve an updated affidavit of evidence in chief covering at least her current circumstances including her current financial circumstances and the topic of add-backs specifically in relation to her share of the proceeds of sale of the property at M, such affidavit to be filed and served by 4:00pm on 12 November 2008.

6. That by 4:00pm on 14 November 2008 the wife file a document setting out the final orders that she seeks and a list of the witnesses that she proposes to call in her case.

7. That by 4:00pm on 28 October 2008 the husband file and serve any application that he seeks to make for the obtaining of a valuation of the business N Pty Ltd as at 1995 together with a supporting affidavit.

8. That by 4:00pm on 5 November 2008 the wife file and serve a response to the application referred to in paragraph 7 above together with a supporting affidavit.

9. That the hearing of the said application be listed for 12:00pm on 7 November 2008 with a time estimate of 1 hour.

10. That the trial be adjourned to 9:00am on 17 November 2008 for a continuation hearing with a time estimate of 1 hour.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 130 of 2006

MR ALVEY

Applicant

And

MS ALVEY

Respondent

EX TEMPORE REASONS

1. This matter was listed before me today as the first day of the trial.  It is a property matter.  It was originally listed for hearing earlier this year but was adjourned out of the trial list on the basis that it had been decided that a business, which was being operated by the husband primarily needed to be wound up.

2. The matter was adjourned to a date in May.  Since then it has been before a registrar, dealing with relevant matters, in an attempt to ensure that the matter was ready to proceed today.  However, unfortunately that has not turned out to be the case.  The matter is still not ready to proceed as a trial. 

3. I am not going to repeat everything that has been put to me today, but the long and the short of it is that the primary reason for that relates to that business which I was told was going to be wound up.  Indeed, it has not been wound up; it has been restructured such that in fact what I am told is that it is now quite a different business than it was prior to March 2008 and there is a need to value that business as it is currently structured.  The business had been previously valued but, because of the changes to the business, I am told that those valuations can no longer be relied upon, and there is a need to obtain a new valuation.

4. Outside of that there are other issues which have become apparent from the submissions of counsel today, and which I will deal with in a moment.  I have expressed concern about how this has developed and why this case is not ready for trial.  I have not been asked to make any finding about that for example as to in fact who is responsible, but it concerns me that this court's time has again been substantially wasted.  We have managed to do some things in the case today, but today was not intended to be an opportunity to simply move the matter along the case management pathway.  Today was the first day of trial, which would then enable the parties to have a concluded hearing in the very near future.

5. In the circumstances what I have opted to do is in effect make orders with strict time frames in an attempt to have the matter ready for trial next time.  I do not propose to list it for a conclusion hearing until it is ready for trial.  I am not going to have the situation arise again that has arisen today, and I need to keep as strict a control as I can over what now needs to be done in the matter.

6. In relation to the business N Pty Ltd, it is agreed that Mr H will be appointed as the single expert to value that business.  A joint letter of instruction is apparently about to be settled and it is anticipated that that can be sent to Mr H in the next day or two.  Mr H, as I understand it, is available then to prepare his valuation, and I have been given to understand it would only then be a matter of days before Mr H could provide that valuation.  Thus I am comforted by that time frame. 

7. There needs to be orders made for the filing of updated affidavits.  The parties had previously filed affidavits of evidence-in-chief but, given the events that have transpired since earlier this year, certainly the husband needs to file an updated affidavit outlining what has happened in relation to the business, and obviously updating his position generally, but also addressing the issue of add‑backs, specifically in relation to the use of the proceeds or his share of the proceeds of the sale of the house property.

8. From the wife's point of view, obviously there is a need to file an updated affidavit generally as to her current circumstances, and she also needs to address this issue of add-backs.  It is an issue in the case and a dispute that needs to be determined.  Thus I will be making orders for the filing of those updated affidavits.

9. There is no agreement yet about the value of motor vehicles and furniture and effects.  I propose to make an order about that in a moment.  There was an issue about the value of the husband's interest in a property at S.  I am told, though, by Mr Richards today that his client does not pursue that, in the sense of requiring a valuation of that property, and that for the purposes of the trial, as I understand it, the purchase price of that property will be used.

10. In relation to a trust, A Trust, there is a deposit with the National Australia Bank.  There is an issue between the parties as to the tax that will be payable to access those funds.  There is an expert opinion provided by Mr J in an affidavit that has been filed in this case on behalf of the husband.  The wife's position is that she has an expert instructed and she needs to obtain his advice and opinion as to that matter, and it may be that agreement can be reached about that. If not, obviously the issue of expert evidence on that topic will need to be considered.

11. The final matter, which is a significant matter, is that the husband, without leave, has filed an affidavit on 17 June 2008 by Ms Y, which attempts to put before the court a valuation of the business as it was at 30 June 1995.  Apart from there being no leave to file that affidavit, Mr Berman has readily conceded that there has been no compliance with the single expert rules and that if that was a point taken by the wife then the matter would be resolved by the appointment of a single expert and a valuation obtained in that way.  However, Mr Richards has told me that his position, or his client's position, is that there is no need for such a valuation to be put before this court.  That is an issue that needs to be determined before, obviously, we address who does any valuation; whether it is the single expert or whether Ms Y does it. 

12. I need to set some time aside to hear argument about that issue.  The parties need to file documents about it, namely, from the husband's point of view an application and a supporting affidavit and from the wife's point of view a response and a supporting affidavit.  I propose to list that matter for hearing on 7 November 2008.

13. In terms of the general running of the case, I propose to adjourn the trial to 17 November, by which time there should be updated affidavits on file and the valuation of Mr H.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 21 October 2008.

Associate