Batsman and Batsman

[2010] FamCA 498

FAMILY COURT OF AUSTRALIA

BATSMAN & BATSMAN [2010] FamCA 498

FAMILY LAW – CASE MANAGEMENT – Agreed statement of position – Defended hearing and valuation issues

APPLICANT: MS BATSMAN

RESPONDENT: MR BATSMAN

FILE NUMBER: MLC 13495 of 2007

DATE DELIVERED: 9 JUNE 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 9 JUNE 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR PARKER

SOLICITOR FOR THE APPLICANT: LANDER & ROGERS

COUNSEL FOR THE RESPONDENT: MR GLOVER

SOLICITOR FOR THE RESPONDENT: WISEWOULD MAHONY

Orders

IT IS ORDERED:

1. THAT the wife, on or before 24 June 2010 and the husband, on or before 30 June 2010 make, file and serve:

   (a)an amended application or response containing the precise orders sought in these proceedings;

   (b)an outline of argument and legal submission;

   (c)a list of affidavits relied upon;

   (d)an updated and consolidated balance sheet of the assets, financial resources and liabilities of the parties or entities identified in the proceedings as being of relevance.

2. THAT the solicitors for each party comply with the requirements of Family Law Rule 19.04 and have available on the morning of the hearing a detailed and complying letter as to costs and disbursements.

3. THAT the husband have leave to file an affidavit of Mr B, valuer, as to the updated value of each of the E properties.

4. THAT the solicitors for the parties are each to confer as to any updated value of the commercial premises at Y and are to agree upon a value thereof as at 1 June 2010.

5. THAT the solicitor for each party is to prepare a list of objections to any matter contained within the affidavits of the other party to be relied upon and those documents are each to be filed and served on or before 1 July 2010.

6. THAT the husband is forthwith to disclose the source documents which identify any updated taxation liability and that matter is to be referred to the single expert witness for assessment and comment and otherwise may be an issue in the proceedings.

7. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13495 of 2007

MS BATSMAN

Applicant

And

MR BATSMAN

Respondent

REASONS FOR JUDGMENT

1. The matter of Batsman is listed for a defended hearing before me commencing Tuesday, 6 July – the estimate of time is four days and solicitor and counsel appearing today have confirmed that period is sufficient for the matter to be heard and determined and judgment given.  Mr Glover appeared as counsel for the husband this day and appears briefed in the trial.  Mr Parker, solicitor, appeared for the wife and conveyed to the court that he has briefed Mr Sweeney of counsel on trial.

2. This was a case management hearing which developed, over time, to identify the various issues and certain disputes within the current evidence.  The first issue I deal with is that the husband has now filed an affidavit on 1 June 2010 and seeks to rely upon that affidavit as his primary evidence in the trial.  Pursuant to my earlier order pronounced 2 March 2010, he was to file that updated trial affidavit by 12 May of this year.  Mr Parker identified the earlier affidavits filed by the husband and, in particular, objected to the filing of this affidavit of 1 June and the court’s reliance thereupon.

3. I initially observe that in paragraph 3 of the affidavit, the husband intended to incorporate as his evidence and rely upon his earlier affidavits of 7 May 2008, 5 August 2008, 28 September 2009 and 19 May 2010.  Mr Parker’s submission was that the husband should be forced to rely upon only that affidavit of 19 May 2010 as it was his affidavit filed pursuant to my practice directions.  Mr Glover has, of some recent time, come into the case and been engaged to represent the husband in the trial and likely had some input, as I discerned from comments from the bar table, in the preparation and direction of this affidavit.

4. The affidavit is largely a statement of the husband’s evidence, contributions and related matters in the first 49 paragraphs thereof, and thereafter a somewhat detailed response to the wife’s affidavit of 17 December 2009 but, more particularly, her trial affidavit of 25 September 2009 which is the primary document relied upon by her in the hearing upcoming before me.  Both legal practitioners identified various paragraphs in that affidavit where they were concerned to either have the husband’s evidence before the court, or otherwise, how the wife was prejudiced by the late production of evidence, not just of a financial assessment nature, but also a factual basis.

5. I was taken to various paragraphs between 30-43 (inclusive) thereof.  What I determined was that the various dollar value assessment of work and labour done, or materials supplied, as identified, for example, in paragraphs 25, 28 and 38 of that affidavit, and again in paragraph 43 and 41 thereof, are inappropriate.  They are guesstimates;  they may or may not be correct but it would be onerous upon the wife to be faced with those dollar value estimates if they were simply to be incorporated within the husband’s case.  They are not properly identified and it may be that other witnesses would need to be called to verify the value of their work, labour or materials.  I will not permit additional witnesses at this date in time of this case.

6. A larger picture arising from the husband’s earlier affidavit is his contention that he or others, family or friends, did work on various properties by way of improvement, renovation and the like.  That is an issue that can stand cross-examination but there is no particular dollar value evidence to be drawn from this last affidavit and I will not accept that evidence as being admissible or accurately reflecting the particular works. 

7. The other complaint of Mr Parker concentrated upon paragraph (ggg) – in response to paragraph 100 of the wife’s affidavit and the annexure “GD-8” thereto.  I am not going to disallow that evidence or strike out that annexure.  It may or may not be of relevance and importance but that matter can be the subject of evidence and submissions.  Whilst I suitably admonish the late filing of this June affidavit, I will permit the document to be relied upon by the husband subject to those obvious qualifications of dollar value evidence therein, which properly should be struck out.

8. Mr Parker ultimately conceded the document can, and should, remain before the court but each of the legal practitioners have requested the right to draft objections to the affidavit material of the others and I will require all such objections to be drafted in a document capable of being filed with the court on or before 1 July 2010, and then I leave it to counsel on the day when the case commences, to prudently pursue objections that are proper and relevant.

9. The other preliminary issue is that there has been obtained, by a valuer engaged by the husband, Mr B, an updated valuation of the properties at V Street, E and D Street, E.  Formerly, I was advised they were valued at $470,000 and $500,000 respectively.  Their valuations are now said to be $665,000 and $750,000 respectively.  If correct, that is a very substantial increase but perhaps reflective of the property market in Melbourne over the past 12 months or thereabouts.  I have indicated, and Mr Parker has accepted, that current market valuations of these two properties are required.  There can be appropriate discussions with the husband’s valuer or the wife retaining her own valuer, or general commonsense can apply as to what is the current market value of those two properties.  I have given leave to the husband’s solicitor to prepare and file an affidavit of that valuer on those two properties.

10. I am advised that there will be agreement on the Queensland property at W and that must be a matter of  proper negotiation prior to trial.  The more significant property owned within DM Investments Pty Ltd is the hospitality business and shop at Y.  The husband has not obtained an updated valuation of that property because of cost.  The wife’s valuation relied upon is as at March 2009 and was then said to be $2,000,000 or thereabouts.  There may have been increase in rental paid by the business tenants and the discussion at court today was that these matters would be reconsidered by solicitors and/or a valuer, and there would be genuine discussions out of court to ascertain a current market value as at 30 June of this year, of that significant investment property.

11. I accept the goodwill shown by the legal practitioners in undertaking that task but, otherwise, I am not asked to rule on any professional valuation being undertaken and time, most likely, would not permit that course of action.  As to DM Investments Pty Ltd and arising out of discussion between legal practitioners, I was asked to accept as a fact relevant to the trial and the basis upon which that aspect of the hearing would proceed, the following statement:

    That the husband and wife have each made no financial or non-financial contribution during the course of the marriage to the assets, resources or any liabilities of [DM] Investments Pty Ltd and it was further acknowledged that the property at [Y], was acquired by that company from registered proprietors which included the wife as then a one sixth tenant in common in equal share proprietor.

12. The relevance of that statement or admission, as the case may be, will become more evident in trial, but I record that which was said to me in open court for the purposes of being so recorded.

13. As to the wife’s case, she relies upon her trial affidavit filed 28 September 2009.  Mr Parker has withdrawn reliance upon her more recently filed affidavit.  Otherwise, her updated financial statement was filed 12 May 2010.  There is an affidavit of her sister, Ms A, filed 13 October 2009.  The husband, through his counsel, indicated that he wished to cross-examine the other siblings.  The wife had intended to rely upon the affidavit of her brother, Mr F, filed 28 September 2009, but it may be that there will be reliance upon the affidavits of each of her other sisters who may be required for cross-examination.  That is a matter upon which counsel must have further discussion.

14. The single expert witness in this matter is Ms U and she has filed two affidavits on 30 September 2009 and 4 May 2010.  She may be required to give evidence.  There is an issue of current tax liability raised by Mr Glover today, and which is to be referred to the single expert witness for assessment, verification or other comment.  That matter must be undertaken forthwith.  Otherwise, the wife’s remaining witness is Mr O, a certified practising accountant.  The wife, through her solicitor, have indicated that they will update, pursuant to orders that I will make today, her outline of case argument.  The wife’s amended initiating application was filed 23 July 2009 and that is to be updated, again, pursuant to orders that I will make today.

15. As to the husband, he relies upon his recently filed affidavit of 1 June 2010 but not paragraphs 3 or 50 thereof.  Otherwise, Mr Glover foreshadowed that it may be that reliance would be had upon the husband’s earlier affidavit of 19 May 2010 as to paragraphs 19-30 (inclusive) – only thereof.  But this is a matter for further consideration by Mr Glover and discussion between counsel.  The other affidavits of the husband are his financial statement of 19 May 2010, the affidavit of his accountant, Mr S, filed 19 May 2010, and the valuer’s affidavit to which I had given leave to file this day.

16. The court is advised that the property at R has now sold.  Otherwise, the remaining real property asset is the P property.  The parties have identified various alleged add-backs or other financial issues to be the subject of evidence.  I will shortly pronounce orders which will fine tune this matter for trial, in respect of the documents to be filed by way of outline of argument, practice, direction, valuation.  I am aware that there has been a recent conciliation conference before a registrar but that the matter did not settle.

17. As an overview, these parties have spent a very considerable sum of money and soon will be asked to contribute another significant sum to fund counsel and the court hearing.  I encourage practical settlement discussions.  The pool of assets, excluding DM Investments Pty Ltd, is largely agreed and not substantial, with due respect to the parties.  I do understand the arguments before the court as to the wife’s interest or future entitlement or heavily qualified financial benefit within DM Investments Pty Ltd and I make no further comment or finding upon the issues, but that should not stop meaningful discussions between counsel as to a financial overview. 

18. The purpose of these ex tempore reasons are largely to identify matters touched upon in court this day and to give a background to the procedural and case management orders which I will pronounce.  I have not intended to cover all issues and I know that, otherwise, the value of the business or the assessment and apportionment of moneys paid to the wife are additional issues before the court.  I will have these ex tempore reasons transcribed, placed on the court file and made available to the parties.  I do so to highlight the ongoing discussions that are going to take place between counsel.

19. The husband and wife should be actively involved in those discussions.  This should not be a difficult case.  There are clear guidelines to the way in which I will approach this case, identifying what is the asset pool, looking at contributions and at section 75(2) factors and, ultimately, with an overview determining what is just and equitable by way of a division of all property.  What is included within property of the parties available for distribution may be more of the issue but there needs to be a fair measure of commonsense or the parties will, by and large, spend moneys that are out of proportion to the judgment or the financial benefits they will receive or retain there under.  Otherwise, I carefully make no other comment as to the outcome of this case.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: