Bennouna & Radnell
[2023] FedCFamC1F 220
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bennouna & Radnell [2023] FedCFamC1F 220
File number: PAC 4595 of 2018 Judgment of: REES J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – PROPERTY – Where the property has been used to dump waste and other contaminants – Where the value of the property is subject to the cost of remediation – Where the single expert assessed the cost of remediation to be between $1.4 million to $2.9 million – Where the valuer assessed the value of the property having regard to the median estimate of remediation – Where the large range of the costs of remediation makes it unsafe to rely on the median estimate – In the circumstances just and equity require that the market determine the value of the property – Where the husband has failed to make full and frank disclosures – Where the husband’s actual income is undetermined – Kowaliw and Kowaliw (1981) FLC 91-092 – Where the respondent’s contribution is assessed at 60 percent – Where an adjustment of 10 per cent is made for the applicant in circumstances where her earning capacity is limited and where she will have the responsibility for the two children for another nine years – Where the applicant is appointed as trustee for sale of the property. Legislation: Family Law Act 1975 (Cth) ss 90SM, 90SF Cases cited: Black & Kellner (1992) FLC 92 -287
Giunti & Giunti (1986) FLC 91-759
Kowaliw & Kowaliw (1981) FLC 91-092
Smith & Smith (1991) FLC 92-261
Division: Division 1 First Instance Number of paragraphs: 123 Date of hearing: 27 March 2023 Place: Sydney Counsel for the Applicant: Mr Livingston Solicitor for the Applicant: Rafton Family Lawyers Counsel for the Respondent: Mr Bahram Solicitor for the Respondent: Hammond Law Firm ORDERS
PAC 4595 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BENNOUNA
Applicant
AND: MR RADNELL
Respondent
order made by:
REES J
DATE OF ORDER:
31 March 2023
THE COURT ORDERS:
1.That the respondent do all things required to sell the property known as C Street, Suburb B and to disburse the proceeds of the sale in the following manner and priority:
(a)In payment of the agent’s commission and costs of sale including the costs of the solicitor who acts on the conveyance.
(b)In payment of 50 per cent of the balance to the applicant.
(c)In payment of $6,750 to the applicant.
(d)In payment of outstanding rates, levies and charges.
(e)In payment of the balance to the respondent’s solicitor, Mr Hammond of Hammond Law Firm.
2.That the applicant be appointed trustee for sale of the property known as D Street, Suburb E (“the property”).
3.That the respondent shall not cause or permit any further waste, including but not limited to asbestos sheeting, building materials, car parts including tyres and batteries, household rubbish, metal, biological material, chemicals, timber or any other material being dumped upon or stored at the property.
4.That the applicant do all things required to sell the said property for the best price available.
5.That the proceeds of sale of the property be disbursed in the following manner and priority:
(a)To discharge the mortgage.
(b)In payment of the costs of sale including agent’s commission and solicitor’s costs in relation to the sale.
(c)In payment of 50 per cent of the balance to the applicant.
(d)In payment of all council rates, water rates and outstanding charges.
(e)In payment of the balance to the respondent’s solicitor, Mr Hammond of Hammond Law Firm.
6.That other than as provided in these orders, each party shall be solely entitled to any item of personal property in his or her possession.
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 a pseudonym Bennouna & Radnell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Bennouna (“the applicant”) and Mr Radnell (“the respondent”) lived in a de facto relationship between 2008 and 2016. They have three children aged 14 years; 11 years and almost nine years. The oldest child lives with the respondent. The two younger children live with the applicant.
These proceedings concern the division of their property.
There is little factual dispute.
When the relationship commenced, the applicant had no significant property.
The respondent owned a property at Suburb B, jointly with his then wife, Ms F, and a property at Suburb E. Subsequently, the respondent and Ms F divorced and the respondent paid Ms F $135,000 by way of property settlement. Orders for property settlement between the respondent and Ms F were made in 2008. Ms F has not transferred her interest in the Suburb B property to the respondent as she was required to do by the orders and remains on the title as a registered proprietor.
The respondent asserts that, at the commencement of their cohabitation, he had debts totalling $80,000. The applicant asserts that the Suburb B property was unencumbered and that the mortgage over the Suburb E property was $280,000. At least $135,000 was borrowed by the respondent to pay out the interest of Ms F.
They lived in a building on the Suburb E property until 2014 when they moved into a rental property next door.
It is not in dispute that the respondent allowed the Suburb E property to be used for the dumping of waste material, including contaminated waste and car bodies.
After the applicant and the children moved from Suburb E in 2016, the respondent remained in the rented property.
Before me, the applicant seeks payment to her of the equivalent of 60 per cent of the net value of the properties at Suburb B and Suburb E. The respondent wishes to retain the Suburb E property and pay to the applicant, from the sale of the Suburb B property, 30 per cent of the net value of their property.
THE TRIAL
The applicant relied on an affidavit sworn by her on 15 June 2022 and a Financial Statement sworn on 15 June 2022.
The respondent relied on an affidavit sworn by him on 15 August 2022 and a Financial Statement sworn on 9 March 2021.
A significant issue in the trial was the value of the Suburb E property.
This is a property of some near 3 hectares which has been used to dump waste and vehicles and scrap metal. At various times during the proceedings, the respondent has asserted that the property is contaminated with asbestos and other contaminants and that the cost of remediation would exceed the value of the land.
Because the respondent wants to keep the property, considerable time has been wasted in trying to achieve proper evidence of its value. Those issues are relevant to the applicant’s position that she should be appointed the trustee for sale of the property and will be discussed later in these reasons.
It is sufficient to say here that on 12 December 2022, when I listed the matter for trial commencing on 27 March 2023, I made the following Order:
4.That in the event that the parties have appointed single experts to value the [Suburb E] property and to give evidence about the cost of remediation of the property then that evidence will be admitted. In the event there is no such evidence then the matter will proceed on the basis that the [Suburb E] property will be sold.
At the commencement of the trial, evidence was available from two single experts. Mr G, a certified specialist, who provided a report dated 9 February 2023.
Annexed to Mr G’s report were a series of aerial photographs of the Suburb E property which show scrap items and waste beginning to be accumulated before 2009 and the amount of waste increasing in 2011, 2012, 2013 and 2015. Mr G observed that the accumulation of waste at the present time was no greater than in 2015.
At page 19 of his report, Mr G provided a Table of “Observed Waste Quantities” which he summarised at page 20,
[…] car bodies, […] IBCs (Intermediate Bulk Containers), [temporary buildings], […] tonnes of concrete waste, asbestos sheeting and asbestos impacted soil, […] drums, […] car tyres, contaminated stockpiled soil and impacted surficial soil and fill, and various other scrap items and waste were identified at the site. There is no evidence of environmental licences held by the property for the storage of this material or notifications to Council and NSW EPA relating to the contamination.
The estimated cost of cleanup of the site has some uncertainty due to the complexity and variation in what is currently stored at the site and the limited sampling completed as part of this task. The estimated cost of cleanup of the site so that it is rendered suitably clear for the site sensitivity setting is between $1.4M and $2.9M, with a mid‑cost estimation of $2.18M excluding GST.
This includes the estimated cost of cleanup between $1.53M to $3.06M, offset by the estimated recovery from selling recyclable items between approximately $93k to $150k excluding GST.
This is an estimate based on quick recovery and not prolonged negotiation to find the best market sale price.
Mr H, a valuer, prepared a valuation dated 22 March 2023, having regard to the report of Mr G and, specifically to the portions set out above. Mr H stated,
Regardless of the fact that this land isn’t listed on the NSW EPA registered for contaminated lands, I believe that any prudent purchaser would take into consideration the cost of cleaning the site before proceedings with its acquisition.
Mr H noted that Mr G in his report estimated the cost of remediation to be between $1,400,000 and $2,900,000 and that Mr G adopted the median figure of $2,180,000. Those figures exclude GST.
Adopting Mr G’s median figure of $2,180,000 (plus GST), Mr H valued the land at $905,000.
In Smith & Smith (1991) FLC 92-261, the Full Court held,
… where the state of the evidence makes the process of valuation hazardous or uncertain, or where there are wide differences between legitimate valuations because of a volatile market or peculiarities relating to the specific property or otherwise, the ascertainment of value by judicial process may become too uncertain and the preferable course is to order the sale of the property so that its real value can be revealed by market forces.
In the present case, the large range of Mr G’s estimates of the costs of remediation makes it unsafe to rely on the median estimate.
If Mr G’s lower estimate of $1,400,000 is more accurate, then Mr H’s adjusted value would be $1,685,000. If Mr G’s highest estimate of $2,900,000 is correct, then Mr H’s adjusted value is $185,000. If the higher figure is more accurate, then the property has no realizable value because it secures a mortgage of $247,391. If the lower figure is correct, the property has a net value of some $1,438,000. These figures are illustrative and do not take into account GST because there is no evidence of the likely amount of GST payable.
Having regard to those circumstances, I consider that justice and equity to both parties requires that the market determine the value.
I am conscious of the fact the respondent wishes to retain the property, and might be able to do so if the lower estimate of value proves correct, but the real value of the property cannot be determined unless it is sold.
NON-DISCLOSURE
The applicant asserts that the respondent has not made full and frank disclosure and that the principle in Black & Kellner (1992) FLC 92-287 is engaged.
In Weir & Weir (1993) FLC 92-338 the Full Court, referring to Black & Kellner, stated at 79,593,
It seems to us that once it has been established that there has been a deliberate non‑disclosure… then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
It cannot be disputed that the respondent has failed to make proper disclosure. On behalf of the respondent, counsel submitted that the non-disclosure was minor and should have no effect on the outcome. I disagree. The obligation of disclosure goes to the heart of the process and is fundamental to the whole operation of the Family Law Act 1975 (Cth) (“the Act”) in financial cases. As the Full Court stated in Giunti & Giunti (1986) FLC 91-759 at 75,555,
… if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of the Court, not by outright refusal, which would attract sanctions, but by obfuscation and evasion.
The respondent conceded that he had not provided any bank statements in relation to his bank account with the ANZ Bank since 1 January 2022, despite the concession that his solicitor had received two letters from the applicant’s solicitors requesting mortgage statements, bank statements and taxation returns. Mortgage statements had also not been provided. Tax returns were not provided because, according to the respondent, he has not filed a return for over five years.
In cross-examination, the respondent conceded that he had earned income from selling scrap and from transport work. He was vague about when he last earned income. It might have been “one, two or three years ago” but he said that he sold scrap for $1,200 “a month ago”.
The respondent said he worked for a business owned by his son, but was equally vague about when he last worked. The respondent’s son was present in court during the hearing. He could have given evidence about the amount he paid to his father for his work. He did not.
The respondent, in his trial affidavit, deposed that he “did do the rare job on occasions, to help pay the bills”. He said he “did the very rare […] job, but was not employed” and that he “earned some money from having old cars on my property and doing them up and selling parts”. He deposed that he helped his son in his son’s business. The respondent also deposed that he owned two work vehicles for which he had paid $7,000 in total.
The respondent swore two Financial Statements in these proceedings. The first was sworn on 3 February 2019. In that statement, the respondent deposed that he paid $500 per week in mortgage payments and $80 per week in rates. He did not disclose any payment for rent although he was living in rented accommodation. The respondent did not disclose the vehicke that he owned at the time. The respondent claimed to be a half owner of the property at Suburb B with his former wife, although he conceded that he knew when he swore the statement that orders had been made for property settlement between them and that, pursuant to those orders, he was the sole owner of the Suburb B property.
The respondent disclosed an income of $200 per week as a self-employed worker in addition to his income from a pension.
The respondent’s most recent Financial Statement was sworn on 9 March 2021. The respondent deposed that his sole source of income was his disability pension. He disclosed no income from truck driving or selling scrap. He deposed that he paid $500 per week to J Finance by way of mortgage payments and a further $500 per week in “Other mortgage payment”. In cross examination, the respondent said his total payment to the mortgage was $500 per week. He did not disclose payment of rent.
The respondent did not disclose that he owned two work vehicles.
In cross examination, he said that he had bought the second work vehicle for business use for $4,500 with money he had earned from selling “a couple of things… car parts and that”.
The respondent, in cross-examination, said that he paid $500 per week interest on the Suburb E mortgage, $100 off the outstanding rates and $200 in rent. In addition he pays for food for himself and his oldest child, for petrol on the car he has borrowed and, I assume, electricity. How he does that on an income of $446.50 per week is unexplained.
Because the respondent declined to provide the documents that might have thrown some light on his earning capacity, I have no idea what he actually earns.
I accept that the amounts may not be great, but this is a matter where both parties seek an adjustment pursuant to s 90SF(3) and where the applicant’s earnings from employment are $500 per week.
In cross-examination, the respondent said “scrap is like money in the bank”. Mr G, in his report stated,
With more time, it is likely that higher value recovery could be obtained for car bodies, shipping containers and scrap metal.
The respondent adduced no evidence of the value of the scrap on the Suburb E property. I can say no more than that the scrap has a value and it is likely that the respondent will continue to sell scrap and retain the funds he receives. Mr G, in his report at page 20, placed a value on the scrap at between $93,000 and $150,000. Mr G does not purport to be qualified to value scrap but it is clear from his estimate that the amount of scrap is significant and has significant value which will be available to be realised by the respondent.
WASTE
Counsel for the applicant characterised the respondent’s actions, in allowing contaminated materials to be dumped on the Suburb E property, as waste. In Kowaliw & Kowaliw (1981) FLC 91-092, Baker J held at 76,644,
As a statement of general principle, I am firmly of the view that financial losses incurred by the parties or either of them in the course of the marriage whether such losses result from a joint and several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of action designed to reduce or minimise the effective value or worth of matrimonial assets; or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
…
… if a party has either by deliberate act or by economic recklessness reduced the value of assets available for distribution then the economic consequences which flow therefrom including the resultant burden on the other party are directly relevant to a consideration of the respective contributions of the parties contemplated by sec. 79(4).
Mr H valued the property, if unaffected by contamination, at about $3,300,000. Because the respondent has allowed the property to be used as a dump, including a dump for contaminated waste the value of the property is reduced significantly and, potentially, entirely.
That reduction was caused by the respondent’s reckless and wanton use of the property and constitutes waste that can be taken into account in assessing the respondent’s contributions.
SECTION 90SM(3)
The parties have separated in circumstances where the respondent is the sole owner of property. Both parties ask the court to make orders altering their interests in that property although they disagree on the percentage interest that should be allocated to the applicant.
In those circumstances, it is just and equitable to make an order altering their interests.
THE ASSETS AND LIABILITIES
The parties did not prepare a joint Balance Sheet. Each prepared a document setting out her or his contentions. I have prepared a document which sets out those contentions.
Excluding the Suburb E property, the assets and liabilities of the parties are asserted to be:
ASSETS Applicant Respondent 1 Suburb B Property Respondent $400,000 $400,000 2 Motor Vehicle 1 Applicant $3,000 $8,500 3 Motor Vehicle 2 Respondent $5,000 $2,500 4 Work vehicles x 2 Respondent $30,000 $11,000 Assets subtotal $438,000 $422,000 LIABILITIES 5 Mortgage over Suburb E Respondent $247,391 $247,391 6 Personal Loan for Applicant’s car Applicant $8,500 $8,500 7 Loan from K Finance (legal fees) Applicant $70,100 8 Suburb E Rates Respondent $43,156 $43,156 9 Suburb B rates Respondent $7,006 $7,005 10 Water rates on Suburb E Respondent $4,954 $4,953 11 Credit Card Respondent $40,524 Liabilities subtotal $381,107 $351,529 SUPERANNUATION 12 Applicant $5,450 $5,450
I will deal with the disputes arising on the balance sheet using the item numbers therein.
Item 2 and 6 – Applicant’s car and car loan
The vehicle was purchased for $8,500 in 2016. There is no evidence of its current value but I accept that it is likely to have depreciated. There is no evidence that the applicant will be required to repay the loan she took out in 2016 which is, prima facie, statute barred. I will remove both the car and the loan from the balance sheet.
Item 3 – Motor Vehicle 2
There is no evidence of valuation. The vehicle will be included in the balance sheet at the value for which the respondent contends.
Item 4 – Work vehicles
There is no evidence of valuation. The vehicles will be included in the balance sheet at the value for which the respondent contends.
Item 7 – Loan for legal fees
The applicant is entitled to borrow funds to pay legal fees and to pay such fees as she deems appropriate. She is not, however, entitled to include those borrowings as a liability on the balance sheet. This item will be removed.
Items 8 and 10 – Rates on the Suburb E property
The rates will be paid from the proceeds of sale of the property. They will be removed from the balance sheet. That will have the effect that the respondent will bear the outstanding rates. The respondent has earned an income since the parties separated. Because the respondent has not made proper financial disclosure, the evidence does not permit a finding to be made about what income he has earned. I cannot therefore find that the respondent had no ability to pay the rates as they fell due.
Item 9 – Suburb B rates
There is no evidence that the applicant has ever had anything to do with the Suburb B property. The respondent has had the use of the property, the rates are his responsibility. The rates should not be taken into account for the purpose of assessing the net property of the parties and they will be removed from the balance sheet.
Item 11 – The respondent’s credit card debt
The evidence does not establish that this debt was incurred before separation or relates to the parties’ joint expenditure. It is the respondent’s debt and will be removed from the balance sheet.
I therefore find that for the purposes of these proceedings, the assets of the parties are:
ASSETS Suburb B Property Respondent $400,000 Respondent’s car Respondent $2,500 Work vehicles x 2 Respondent $11,000 Assets subtotal $413,500 SUPERANNUATION Applicant $5,450 CONTRIBUTION
The respondent owned both the properties at Suburb B and at Suburb E at the commencement of the relationship.
Mr H prepared a historical valuation of the Suburb E property. It was his evidence that, at 1 October 2008, the Suburb E property had a value of $370,000.
The property was mortgaged. In his trial affidavit, the respondent said that the mortgage was about $160,000 when he purchased it in 1996 for $175,000.
There is no evidence of the amount owed pursuant to the mortgage in 2008 when the parties commenced their co-habitation.
In 2008, the respondent paid $135,000 to his former wife and those funds were raised by re‑financing the mortgage over the Suburb E property.
Mr G, in his report, stated that an aerial photograph of the property in 2009 showed,
… widespread use for storing vehicles, shipping containers etc. The site appears to be used as a scrap yard…
The applicant deposed that, from the commencement of their co-habitation, the respondent allowed waste to be dumped on the property.
Thus the value of the Suburb E property, for the purpose of assessing the respondent’s initial contribution, is its value as affected by the dumping of contaminated waste. There is no evidence of the cost of remediation in 2008 but I can comfortably infer that the unremediated value of the property was significantly less than $370,000 and that, taking into account the mortgage then outstanding, the Suburb E property may have had no realisable value at that time.
There is no evidence of the value of the Suburb B property at the commencement of co‑habitation but in so far as that property has a present value of $400,000 that is a contribution of the respondent.
The applicant had no significant property.
It was not contended that their contributions during co-habitation were other than equal.
After separation, the applicant had the care of the three children until May 2022 when the oldest child went to live with the respondent. The respondent paid minimal child support although he gave the applicant money from time to time. He deposed that he gave her “Sometimes $50 or $100”. The applicant was primarily responsible for their financial support.
The respondent currently pays child support of $8 per week for the two children in the applicant’s care.
I assess their respective contributions as 40 per cent by the applicant and 60 per cent by the respondent.
SECTION 90SF(3) ADJUSTMENT
The applicant has the care of two children aged 11 years and almost nine years. The respondent has the care of the oldest child aged 14 years although the applicant believes that he will return to her care.
The applicant will have the responsibility for the children for another nine years and, if the oldest child stays with the respondent, he will be responsible for another four years of care.
The applicant earns $500 per week as an allied health worker, in addition to a single parent pension. There is no evidence that she can earn a greater amount.
The respondent earns an undisclosed income in addition to his pension and he will continue to sell scrap accumulated on the Suburb E property. Whether his earned income exceeds that of the applicant is unknown because he has chosen not to disclose it.
The respondent, in cross-examination, said that he could undertake the work required to remediate the Suburb E property, although he estimated that it would take him about two years. He conceded that his physical ailments would not prevent him from carrying out the work although he said he would be slower than he once would have been.
The applicant has superannuation of $5,450. She is aged 37 years and it will be many years before she can have access to any superannuation benefit. I propose to ignore this asset.
In all those circumstances, it is appropriate to make a modest adjustment in favour of the applicant of 10 per cent.
CONCLUSION
The net assets will be divided equally.
The respondent does not want to retain the Suburb B property and it will be sold. It is therefore appropriate to deal with the net proceeds of the sale rather than the theoretical value.
The respondent has personal property valued at $13,500. He will be required to pay the applicant $6,750.
The property at Suburb E will be sold, the mortgage discharged, and half of the balance paid to the applicant. The rates outstanding will be paid from the respondent’s share.
The property at Suburb B will be sold and half of the net proceeds, after costs of sale, paid to the applicant. The rates will be paid from the respondent’s share.
TRUSTEE FOR SALE OF THE SUBURB E PROPERTY
The applicant seeks an order that she be appointed the trustee for sale of the Suburb E property because, she asserts, the respondent will thwart the sale process as he has delayed and thwarted the progress of the litigation.
In support of that application, she relies on the history of the litigation and what she asserts have been the respondent’s delay and refusal to co-operate with orders for the preparation of the matter for hearing since its inception some five years ago.
On 7 August 2008, orders were made by consent in proceedings PAC 2080/2008 between the respondent and Ms F. Those orders provided that within three months of the date of the orders, the respondent was to pay the wife $135,000 and Ms F was to transfer to him her interest in the property at Suburb B. Both the respondent and Ms F were represented by solicitors. The consent orders were signed by them and by their respective solicitors.
Ms F received $135,000 but did not transfer her interest in the Suburb B property and the respondent did not take any steps to effect the transfer.
The present proceedings were instituted by the applicant’s filing an Initiating Application on 26 September 2018 in the Federal Circuit Court (as it was then named). The respondent filed a Response on 3 February 2019.
Orders made on 11 February 2019 contain a notation to the effect that there is an issue about contamination of the Suburb E property and the cost of remediation.
On 3 June 2019 orders were made for the appointment of a single expert to report on whether the Suburb E property was contaminated and, if it were, the cost of remediation.
On 16 October 2019, an order was made that Ms F be named as second respondent and that she file a Response and an affidavit. The court noted that the respondent would provide access to the Suburb E property to any expert engaged by the applicant. It is not clear from the record why that order was made. I infer that the respondent told the court that Ms F had an interest in the proceedings.
In cross-examination, the respondent conceded that he knew that there had been a property settlement between himself and Ms F and that he knew that, pursuant to the property settlement orders, he owned the Suburb B property.
On 28 January 2020, the matter was transferred to the Family Court (as it was then named).
On 19 May 2020, Ms F appeared. The court noted,
A.[Ms F] was spoken to at length and was strongly advised to obtain independent advice.
B.There is an issue of s44(3) as both respondents asserts that they have not formally effected their property settlement. The Respondents were divorced in 2012.
C.The First respondent consents to any application for leave out of time although the Second Respondent has not formally put on any application for such leave.
D.The Applicant does not consent to such leave being granted and has joined the Second Respondent as she remains on the Title of the properties subject of the application.
E.The First respondent claims that there the pool is in the negative due to remediation work required on the property. The property is also subject to re-zoning potential.
A search of the relevant file would easily have demonstrated that orders had been made between the respondents but that did not seem to have occurred.
On 30 June 2020, the respondent was ordered to pay for “his share of the cost of the valuation”.
On 17 July 2020, Ms F filed an Application in a Case, in these proceedings, naming herself as second respondent and seeking orders that she be granted leave to commence property settlement proceedings out of time. In support of that application, Ms F, acting for herself, swore an affidavit on 15 January 2020 in which she deposed that she had received $135,000 from the respondent but that,
9.… [the respondent] and I agreed to show that we had done a property settlement…
10.This of course was only just to shut up [the applicant].
Ms F asserted that no valid orders for property settlement had been made.
On 11 August 2020, the respondent had not paid his share of the costs of the single expert. Orders were made for the applicant to pay the whole amount, to be reimbursed, with interest, out of the respondent’s share of the final settlement.
On 2 September 2020, Mr H prepared a valuation of the Suburb E property. In the valuation report he stated,
This valuation is based upon what the land would be worth if it were “cleaned up” and that there are no major contamination issues.
I have not been provided with any advice from an expert Environmental Scientist in relation to this site…
I am not an Environmental Expert not claim to be such. Therefore I would advise that an environmental consultant is retained if confirmation is required to ensure that this site is or is not contaminated.
On 9 September 2020, the court again noted that the substantial issue in these proceedings was the cost of remediation of the Suburb E property and the respondent’s contention that the property had a negative value.
On 19 February 2021, Mr H provided an updated valuation with the same caveat as to contamination as the earlier report.
On 22 December 2021, I made orders for the respondent to provide to the solicitor for the applicant any documents in his possession relevant to the issue of contamination of the Suburb E property and granted leave for the applicant’s solicitor to issue a subpoena to the Council and the NSW Environmental Protection Authority.
On 8 March 2022, orders were made for Mr H to update the valuation of the Suburb E property and the following order,
4.That in the event the husband asserts that costs will be incurred to remediate the [Suburb E] property, than not later than 4.00 pm on 28 March 2022 the husband is to provide the solicitors for the wife with the names of three suitably qualified experts to prepare a report about nature of the contamination and the cost of the removal and the wife is to choose the expert who is to be jointly instructed by both parties and the report of the expert to be available by 4.00 pm on 20 June 2022.
(Emphasis in original)
Ms F’s application was dismissed.
On 27 June 2022, the matter was adjourned, noting that the respondent had not paid his share of the costs to update Mr H’s valuation, and noting that if, on the adjourned date of 15 August 2022, the respondent had not paid, then orders would be made for the matter to proceed on the basis that the property would be sold.
On 15 August 2022, the matter was adjourned to 10 November 2022 on the basis that the respondent’s solicitor represented that an agreement had been reached for the appointment of a valuer.
On 29 September 2022, a registrar noted that the parties had reached an in-principal agreement about the letter of instruction for the single expert pursuant to the orders made 8 March 2022.
On 10 November 2022, the applicant’s solicitor appeared but there was no appearance for the respondent. The solicitors were directed to appear in person on 12 December 2022.
On 12 December 2022, the following orders were made,
1.That the matter is listed for hearing before the Honourable Justice Rees for 2 days commencing on 27 March 2023 at 10:00 am.
2.That each party file and serve any outline of case document upon which he or she seeks to rely not later than 4:00 pm on 20 March 2023.
IT IS NOTED
3.That each of the parties has filed a trial affidavit and in the event that it is necessary for any updating evidence to be given that evidence can be given orally.
4.That in the event that the parties have appointed single experts to value the [Suburb E] property and to give evidence about the cost of remediation of the property then that evidence will be admitted. In the event that there is no such evidence then the matter will proceed on the basis that the [Suburb E] property will be sold.
On each occasion when the matter was mentioned before me, there was a discussion about the manner in which the valuation must proceed, that is, that the property was to be valued as unaffected and a separate expert would provide a report about the costs of remediation. On each occasion the respondent was told that if there was no proper valuation evidence, then the property would be sold.
The respondent’s dilatory behaviour gives no confidence that he will be co-operative with the sale of Suburb E, particularly as he opposes the sale.
In March 2022, the applicant engaged L Pty Ltd to prepare a report, identifying potential sources of on-site contamination and giving a preliminary assessment of the nature and extent of the contamination of the Suburb E property. The respondent refused to allow the consultant onto the property. The respondent in cross-examination said that he told the consultant about the asbestos dumped on the property but he would not allow the consultant access because, he said, no arrangements had been made with him to do so.
Asked in cross-examination whether he had been co-operative with the evaluation process, he said “Not real co-operative”.
The respondent did not comply with the orders made on 12 December 2022 about provision of documents relating to the contamination. The respondent was cross-examined about a number of occasions when officers of the Local Council attended at the property in response to complaints. He conceded that he had told Council officers that they would need a warrant to enter the property.
Records produced by the Council show that Council officers spoke to the respondent on 28 October 2020 in response to a complaint that the respondent was running a business from the property and the dumping of vehicles and parts. The records note,
I asked him what his intentions re the condition of the property and he became upset set and stated that he wasn’t willing to discuss the matter any further and nor allow access to the property unless I meaning [Local] Council had in hand a court order to access or take photographs of his property.
He then went on to say that the property has been valued in its present condition and she (Ex Wife) wants it cleaned up for another property valuer to access and provide his thoughts but he stated he is refusing as it any benefits his ex wife and not him.
I requested to come and see him face to face and conduct an inspection but he stated unless a court order is in my hands he will not talk nor grant any access to the property.
Last comment “Get a Court Order Mate”.
(As per the original)
When it was suggested to the respondent in cross-examination that he did not have the funds to pay a licensed operator to remove the asbestos from the property, his answer was, “No. I haven’t gone out of me way yet”.
Nothing in the respondent’s conduct during the course of this litigation gives any confidence that he will co-operate with the marketing and sale of the Suburb E property and suggests, rather, that he will hinder the sale.
The applicant will be appointed trustee for sale.
It was agreed that, in the event that the property was to be sold, an order should be made restraining the respondent from permitting or causing any more scrap or waste material to be placed on the property.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 31 March 2023
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