BACU & BACU

[2010] FamCA 964

FAMILY COURT OF AUSTRALIA

BACU & BACU [2010] FamCA 964

FAMILY LAW – PROPERTY – application to set aside orders appointing a new single expert to value parties’ stock – application dismissed

Family Law Act 1975 (Cth)

APPLICANT: Ms Bacu

RESPONDENT: Mr Bacu

FILE NUMBER: PAF 1866 of 2004

DATE DELIVERED: 1 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 1 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr MacFarlane

COUNSEL FOR THE RESPONDENT: Ms McGrath

Orders

1. That the husband’s application filed 2 August 2010 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAF 1866 of 2004

MS BACU

Applicant

And

MR BACU

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application filed by the husband on 2 August 2010.  That application is opposed by the wife.  Before dealing with the application I need to record that the proceedings were commenced in this Court, having been transferred from the Local Court at Dubbo, in July 2004.  The matter is still not ready for hearing.  The applications outstanding for final orders seek only orders in relation to property.  The parties own a rural property, a suburban house, stock and plant on the rural property.  They each have some superannuation.  The real estate is said to have a value of about $1.25 million.  The superannuation is said to have a combined value of about $72,000.  The parties are in dispute as to the value and numbers of the stock owned by the parties and situated on the rural property.  The wife has spent or owes $138,000 in legal fees and associated expenses, such as experts’ fees.

2. When the matter was before me on 27 September 2010 the husband was unable to tell me what his costs position was.  It is most unlikely to be less than that advised on the part of the wife.  The joint chronology provided to the Court on 28 May 2009, inter alia, advises the following agreed facts.  The husband is 65 years of age.  The wife is 49 years of age.  The parties were married in December 1972.  They have one child, who is now 20 years of age.  In about 1988 or 1989 the parties had separations.  They separated, finally, in July 2003.  During the marriage both parties alleged contributions towards the acquisition of assets and development or improvement of same.  The husband has occupied the rural property “L Farm” for the majority of the time since the final separation. 

3. The husband, by his application filed 2 August 2010 seeks to set aside the orders numbered 2, 3, 4, 5, 6, 7 and 8, made by me on 10 March 2010.

4. Those particular orders provide as follows:

   IT IS ORDERED THAT

   …

   ii)On or before 31 March 2010 the husband is to prepare an inventory of stock on the property [L Farm]. The inventory is to identify who the owner or owners of each of group of stock is or are, how that ownership may be identified on the item of stock, the age and sex of each item of stock, the ear tag number and colour, tattoo mark or other identifying marking and is to explain the meaning of the difference in any tag colours.

   iii)At the time of yarding of stock for the purpose of stock take, pursuant to these orders, the husband is to permit the wife’s representative to attend and verify the stock take as it is being completed.

   iv)The husband is to provide reasonable notice to the wife’s representative of the time of yarding for stock take. The wife is to notify the husband of the details of her representative or representatives (being alternates) within 3 days of the date hereof.

   v)The parties are to jointly appoint a valuer (being a person different to the valuer appointed for the preparation of the last stock valuation). Such valuer to value the stock based on the stocktake prepared pursuant to these orders and any inspection of the stock which the valuer may wish to undertake.

   vi)The parties are to cause a letter of instruction to be provided to the jointly agreed valuer. Such letter of instruction is to be signed by the parties or their legal representatives. Such letter of instruction is to be accompanied by any documents each of the parties wish the valuer to have regard to including a narrative prepared by each party for the assistance of the valuer. Any inspection by the vauler of stock is to be in circumstances where the valuer is accompanied by the wife or her representative together with the husband and or his representative.

   vii)When the valuation is completed and delivered to each party; then within 14 days thereafter, each party is to administer to the valuer any specific questions which they wish to raise. The parties are to instruct the valuer to reply to those questions within 14 days.

   viii)The cost of the valuation and the answering of specific questions is to be met in the first place by the husband and to be brought to account in the balance sheet of the parties for the purpose of the hearing in this case to the intent that the wife is to share equally with the husband for the cost of the valuation.

   …

5. The balance of the husband’s application, which seeks the update of a valuation by Mr P, (the former single expert stock valuer), is dependent on the orders of 10 March 2010 being set aside.  In support of his application, the husband relies upon an affidavit sworn by his solicitor David Lardner on 20 May 2010. That affidavit consists of annexed documents, mainly correspondence. It also refers to extracts from the transcript of 10 March 2010 and an earlier transcript of 22 February 2010.  Of particular note in the annexures (this was the subject of specific submission) is an email from the wife’s solicitors to the valuer, Mr P, on 4 November 2009.  That email predated the signed joint letter of instruction to the valuer.  It enclosed a draft copy of the proposed letter of instruction.  In that email the following appeared:

   When I spoke to my client, [the wife], last about this valuation, my understanding of her instructions is that she would like the animals to be valued as a mob.  So whether you are doing a valuation of the stud or the commercial upgrade animals, you will not do an individual head count.  Whether Mr [Bacu], the husband, thinks the same I do not know because I am still waiting to hear back from his lawyers.

6. Also annexed to that affidavit is Annexure “D” a letter dated 19 November 2009 from the valuer, Mr P, to the wife’s solicitor.  That letter was carbon copied to the husband’s solicitor, Mr Dunston.  That letter is as follows:

   We refer to your recent emails and our telephone conversations and confirm our physical inspection was completed today with [the husband], [Mr B] and [Mr A] in attendance, from 8.30 am to 4.45 pm. 

   We would further advise that we received total cooperation from [the husband] and Mr [B] with the latter providing most recent flock numbers and breed history, where required.

   Stock were assessed as a flock or herd, and no individual head counts were completed, as per your instruction of November 4.  [The husband] agreed with this request.  Again we emphasis, no stock were yarded for inspection – all paddock viewed, therefore reference to ear tags was not possible.  No specific breed aims were indicated other than to continue a breeding plan as self-replacing flocks.  All stock sighted appeared in healthy condition despite below average seasonal conditions and continuing drought.

   Further, [the husband] paid our fee of $4,800.00, inclusive of GST, travel and accommodation, only for the work undertaken todate.

   We thank you for your instruction in this matter.

7. I note the letter of instruction was dated 27 October 2009, and is Annexure “C” to the affidavit of Laleshni Chandra, sworn 19 February 2010.  Of particular note is the following paragraph:

   We ask that you value the commercial stock, the stud stock and the cattle stock.  We ask that in valuing the stud stock you have regard to the breed aims and specifications that you ascribe values to the different qualities of animals according to the most recently obtained prices for those animals.  We also ask that you indicate your decision in relation to value by reference to ear tag markings, or groups thereof.  In relation to this last matter, we note that there are disputes as to the ownership of various of the stud stock, with a number of studs operating on [L] property it is imperative that once these ownership matters have been determined values can be ascribed to each animal using your report.  The ear tags in stud stock are the only clear differentiating marker between the stock.

Submissions by the husband’s counsel

1. The husband’s counsel provided written submissions.  Those submissions asserted that the orders of 10 March 2010 should be set aside on two grounds.  Those grounds were as follows:

   a)The interlocutory orders of 10 March 2010, were made in circumstances where the Court was not appraised of all written instructions given to Mr P for the purpose of him preparing his report. In light of that circumstance it cannot be asserted (contrary to the wife’s case) that Mr P did not prepare the report in accordance with instructions;  and

   b)The valuation methodology adopted by Mr P is the most appropriate methodology (and this is more so the case in light of the wife’s further amended application for final orders).

2. In support of those grounds, the husband submitted that the email of 4 November 2009 and handwritten notes contained thereon form part of the instructions to the valuer.  The document relied upon by the husband’s solicitor was said to have been obtained from Mr P and the solicitor attributes the handwriting on the document to Mr P.  As an aside, it is clearly inappropriate for solicitors for parties to be having contact with jointly appointed single experts without the clear agreement and consent of the other side.  This criticism can be directed in this case to each party’s solicitors albeit at different times.  The fact of contact in recent times between the husband’s solicitor, Mr Lardner, and Mr P, as revealed in Mr Lardner’s affidavit, may in itself be sufficient ground to warrant the wife opposing any further continuation of Mr P as a single expert in the case.

3. Insofar as it is asserted that the email of 4 November 2009, from the wife’s solicitor to Mr P, formed part of a joint instruction to Mr P, I reject that assertion.  It simply cannot be the case.  The whole system of jointly appointed single experts providing reports to parties and the Court would collapse if each party could converse with the single expert and provide other instructions without the consent and knowledge of the other party.  The system would quickly descend to one in which no-one could have confidence, including the Court. 

4. The second ground for setting aside the orders of 10 March 2010 is said to be that the method of valuation adopted by Mr P is the most appropriate.  The second point may well be right, however, it is only appropriate where there is no issue about the numbers of stock, the age of the stock and the ownership of the stock.  All those latter mentioned matters are in issue in this case.

5. It is a fact, not in issue, that the husband did conduct a stock take as required by order 2, on 10 March 2010.  However, he did not comply with orders 3 and 4 of those orders.  The husband has created the current difficulty by that action.  Something now has to be done by the parties and/or the Court to move the matter on towards completion.  In oral submissions the husband argued that the wife had a representative present when Mr P performed the valuation.  It was submitted that as that representative allowed the valuation to be performed in the way in which Mr P carried out the valuation, he gave implied consent to the variation of the joint instruction to the valuer to carry out the valuation in the manner it was conducted.  I do not accept that submission.  No evidence suggests to me that Mr A, the wife’s representative on the day, was anything other than an observer for the purpose of reporting to the wife.  Nowhere is he described as an agent of the wife.  Nowhere is it stated that the wife’s representative was authorised to speak for her in a way which would bind her in these proceedings or otherwise.

6. The counsel for the wife submits that the application is effectively an appeal against the orders of 10 March 2010 which, on a study of the transcript, clearly shows the husband consented to. The wife took me to the transcript of proceeding on 10 March 2010.  At page 23, line 35 the record shows the Court resumed after taking an adjournment for about 30 minutes.  Mr McFarlane informed the Court that he understood the husband agreed to a proposal to deal with the circumstances facing the parties.  He then outlined what he understood was agreed.  On the top of page 26, the husband’s solicitor advised the Court that Mr McFarlane had correctly enunciated the agreement between the parties.  What was set out by Mr McFarlane was the essence of the orders made by the Court on 10 March 2010, that is, a new valuer was to be appointed and a full inventory muster was to take place.  The wife was to have a third party attend as a witness to the muster.

Conclusion

1. I find the applicant husband has not made out a case for the discharge of the orders 2, 3, 4, 5, 6, 7 and 8 made on 10 March 2010.  I would, accordingly, dismiss his Application in a Case filed 2 August 2010.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  2 November 2010