Beach and Beach (No. 2)

[2007] FamCA 1006

FAMILY COURT OF AUSTRALIA

BEACH & BEACH (NO. 2) [2007] FamCA 1006

FAMILY LAW – property – dispute about valuations

Family Law Act 1975 (C’th)

HUSBAND: MR BEACH

WIFE: MRS BEACH

FILE NUMBER: MLF 2761 of 2003

DATE DELIVERED: 15 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 15 August, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Molyneux SC

THE HUSBAND: Mr. Beach

COUNSEL FOR THE WIFE: Ms. Watts

SOLICITOR FOR THE WIFE: Gillian Coote

Orders

1. That by 17 August, 2007 the solicitors for the wife advise the husband (by ordinary post addressed to his address for service and posted on or before 17 August, 2007) of :

   (a)the estimated sum to be charged by E Estate Agents, A (or such other office or E Estate Agents nominated by the A office) to value the plant, equipment and stock in the husband’s possession or control, including any fee charged by E Estate Agents or the report dated 14 August, 2007, marked as exhibit W-1 this day;  and

   (b)the estimated sum to be charged by C Auctions to value the furniture and chattels in the property at D.

1. That B Pty. Ltd. be jointly instructed by the parties to prepare an updated valuation of the property at D.

1. That S Property Advisors be jointly instructed by the parties to prepare an updated valuation of the farming property known as F.

1. That E Estate Agents be jointly instructed by the parties to prepare a valuation of the plant and equipment (including motor vehicles) and stock in the husband’s possession or control.

1. That C Auctions be jointly instructed by the parties to prepare a valuation of the furniture and chattels in the property at D.

1. That at or before 4:00 pm. on 23 August, 2007 the husband pay to the wife’s solicitor the following sums, to be held on trust pursuant to these orders, and disbursed to pay the respective valuers referred to in these orders :

   (a)the sum of $1,100, to be disbursed forthwith to S Property Advisors, being a sum outstanding in respect of a valuation of the F property obtained by the husband in 2006;

   (b)the sum of $1,650, being one half of the cost of the updated valuation of the F property;

   (c)the sum of $247.50, being one half of the cost of the updated valuation of the property at D;

   (d)one half of the total sum advised by the solicitors for the wife pursuant to paragraph (1)(a) hereof;

   (e)one half of the total sum advised by the solicitors for the wife pursuant to paragraph (1)(b) hereof.

1. That at or before 4:00 pm. on 23 August, 2007 the wife pay to her solicitors the following sums, to be held on trust pursuant to these orders, and disbursed to pay the respective valuations :

   (a)the sum of $1,650, being one half of the cost of the updated valuation of the F property;

   (c)the sum of $247.50, being one half of the cost of the updated valuation of the D property;

   (d)one half of the total sum advised by the solicitors for the wife pursuant to paragraph (1)(a) hereof;

   (e)one half of the total sum advised by the solicitors for the wife pursuant to paragraph (1)(b) hereof.

1. That the question of which party should be ultimately responsible for the cost of the valuations ordered this day be reserved to the trial judge.

1. That each of the valuers referred to in this order be jointly instructed by the parties no later than 5:00 pm. on 24 August, 2007.

1. That the parties have liberty to apply on short notice in writing in respect of the orders for valuations.

1. That the trial date of 20 August, 2007 be vacated.

1. That the competing applications for final property orders be adjourned to 10:00 am. on 17 September, 2007. 

1. That the wife have leave to file an affidavit relating to caveats registered over any property in dispute in this matter.

1. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of senior counsel and a solicitor appearing as counsel.

AND THE COURT NOTES

1. That unless and until a legal practitioner files a notice of address for service of the husband, and notwithstanding any communications received by the solicitors for the wife from Kempsons or any other legal practitioner who advises he or she has been requested to assist the husband :

   (a)the obligation of the solicitors for the wife is to serve the husband at his current address for service herein;  and

   (b)the obligation of the Court is to address all correspondence to the husband at his current address for service herein.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as Beach & Beach.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2761 of 2003

MR BEACH

Husband

And

MRS BEACH

Wife

REASONS FOR JUDGMENT

1. This matter has an unfortunately long history.  It has reached the barrier for trial on a number of occasions, and fallen.  I do not propose to consider who has been responsible for the various delays.  That will no doubt be ventilated before the trial judge and, no doubt, taken into account in determining any costs applications and determining who is ultimately responsible for payment of valuations I order today.

1. I propose to go no further back than 8 May 2007, when the matter was listed before Carter J.  On that day, both parties were represented.  The role of the wife's solicitor has been made more difficult by the fact that on occasions, a firm of solicitors, Kempsons, have involved themselves in negotiations on the husband’s behalf with the wife's solicitors.  That firm has never gone onto the record as the solicitor for the husband.  Senior counsel appears today, briefed by Kempsons.  She is a respected member of counsel.  Of course, I accept her assurance she is properly briefed.  I propose to put a note to this order that unless and until a solicitor files another notice of address for service, the obligation of the wife's solicitors is to deal with the husband at his current address for service. 

1. On 8 May 2007, Carter J ordered that the parties agree on a number of single expert witnesses and made the usual orders for single expert valuations in relation to a residential property at D, a farm property called F, cattle, plant and equipment (including motor vehicles) and furniture and other chattels in both the D property and the F property.  For reasons for which each attributes responsibility to the other, little progress has been made.

D property

1. A valuation was obtained by the wife, dated 4 April 2007.  At that time the trial was to proceed on an undefended basis, pursuant to court order.  The valuation was for $1.1 million.  The husband sought an update of that valuation, and that property is referred to in the orders of 8 May.

1. The preferred position of the wife is that the valuers who prepared that valuation, being B Pty Ltd, prepare an update.  They have been advised that the cost of an update would be $495 inclusive of GST and the valuation could be prepared next week.  There had been some discussion between the parties as to another valuer, O.  The evidence is that O will charge $1,500 plus GST for the valuation, which also could be released by next week.  The husband submits that as he was not a party to the initial instructions to B Pty Ltd, a fresh valuation would be preferable.  I do not find substance in that argument, in the circumstances of this case.  Costs should be kept down.  There should be one expert, not two.  I can see no prejudice to the husband in ordering that B Pty Ltd complete the update.  Orders will provide for one half of the fee of $495 to be paid by each of the parties into the wife's solicitor's trust account.

The F Property

1. The husband had the farm property valued by S Property Advisors in 2006, for mortgage purposes. The evidence is that there is some $1,100 outstanding in respect of that valuation and S Property Advisors require that sum to be paid before accepting instructions to prepare an updated valuation.  The fee for an update is $3,300 if jointly instructed, or $2,750 if instructed by one party;  the updated valuation could be prepared within three weeks.  The husband supports an updated valuation by S Property Advisors.

1. Inquiries were also made of H, valuers, in A.  Their fee would be $100 less, if jointly instructed.  Again, the valuation could not be prepared until 31 August 2007.  In my view, it is more appropriate that S Property Advisors prepare the valuation.  The husband is to pay the debt of $1,100, and each of the parties will pay one-half of the $3,300. 

Cattle, plant and equipment

1. Instructions were given to E Estate Agents by the solicitors for the wife and a preliminary report was prepared, dated 14 August 2007, which I have marked as exhibit W1.  This was based on a list of plant and equipment, and an inventory of livestock, provided by the husband. 

1. In summary, E Estate Agents advised that the valuations submitted by the husband in relation to the plant and equipment, whilst hard to evaluate, were probably close to accurate, but they had significant concerns about the stock figures.  In those circumstances, I am satisfied it is appropriate to order E Estate Agents to value the plant and stock and equipment. 

Furniture and chattels

1. That leaves outstanding the question of furniture and chattels in the two properties.  The husband has estimated the value of the furniture and chattels of the farm at $20,000 and the wife is prepared to accept that estimation.  She has estimated the value of furniture and chattels at the D property at $15,000.  The husband is not prepared to accept that, asserting that those chattels are closer in value to $50,000. 

1. In over 20 years of hearing these cases, my experience has been that money spent on valuations of furniture and chattels is often money thrown away.  Items which cost a lot to buy, new or second-hand, are often valued for very little.  Nevertheless, in order to get this trial on, I will order that C Auctions value the chattels at D.  In the event the valuation comes in anywhere close to the $15,000 advanced by the wife, it is probable the husband will be responsible for the full cost of it;  that is a matter of course for the trial judge. 

1. In terms of a time frame, the wife's solicitors are to obtain an estimate of the total sum likely to be charged by E Estate Agents (including the fee for the report dated 14 August 2007) and advise the husband by 17 August 2007. 

1. Payments to be made by each of the parties are to be with the wife’s solicitors by 23 August 2007.  The order will set out those payments which will be in these terms:  the husband to pay the $1,100 outstanding to S Property Advisors; the parties to each pay one-half of the S Property Advisors update at $3,300; the parties each to pay one‑half of the $495 B Pty Ltd update on D; the parties to pay one‑half of the figure provided by E Estate Agents.  Those sums are to be paid into the trust account of the solicitor for the wife and disbursed to pay the various valuations which will be listed in the order.

I certify  that the preceding
13 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the          day of           2007.

…………………………………………
Associate.