CALDER & CALDER - [2014] FamCA 160

FAMILY COURT OF AUSTRALIA

CALDER & CALDER

[2014] FamCA 160

FAMILY LAW – PROPERTY – Interim distribution – parties seek partial distribution to meet litigation expenses – where only source of funds available requires further borrowings or extension of existing overdraft – size of asset pool notionally sufficient for monies provided to the parties to be adjusted at conclusion of proceedings

FAMILY LAW – PROPERTY – Interim – value of property – wife seeks updated valuation of livestock – husband to meet half of costs only if materially different from previous valuation

Family Law Act 1975 (Cth) ss 79, 80(1)(h), 117

Baker v Legal Services Commission [2006] QCA 145
Gelley & Gelley (No 1) (1992) FLC 92-290
Murray v Figge (1974) 4 ALR 612
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Strahan v Strahan (2009) 241 FLR 1
Zschokke & Zschokke (1996) 133 FLR 375

APPLICANT:

Ms Calder

RESPONDENT:

Mr Calder

FILE NUMBER:

MLC

9627

2009

DATE DELIVERED:

21 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Berman J

HEARING DATE:

18 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Brown SC

SOLICITOR FOR THE RESPONDENT:

Nedovic and Co

Orders

UPON NOTING the agreement of the parties that any sum or sums as ordered or agreed will be added back to their respective property interests, the husband and wife sign all such documents and do all such things necessary to enable the husband to borrow the sum of THREE HUNDRED AND FIFTY THOUSAND DOLLARS ($350,000) and the wife to borrow the sum of ONE HUNDRED AND NINETY THREE THOUSAND EIGHT HUNDRED AND THIRTY NINE DOLLARS ($193,839) and such further amounts as may be agreed, with such sums to be achieved by:-
(a)Increasing the limit of the Calder and Co farming partnership (“the farming partnership”) overdraft account with the National Australia Bank to a level that would enable the husband and the wife to draw down such payments; and/or
(b)Borrowing the said sums against the security of Property A and/or Property C titles.
That the husband and wife instruct Mr D of E Pty Ltd to update his valuations of livestock owned by either or both of them, by F Pty Ltd and by any other entity owned or controlled by either the husband or the wife in the following terms:-
(a)Inspection of all such livestock to take place on or immediately after 1 June 2014;
(b)The valuation take place on the basis of the physical counting of livestock, where reasonable for such counting to take place;
(c)That the costs of same to be borne by the wife at first instance and upon the valuation being demonstrated by the wife to represent a material difference to the existing valuation by Mr D THEN and in such case the husband shall reimburse the wife for one half of the cost of same.
Paragraph 4 of the wife’s Response be dismissed.
There be no order in respect of paragraph 5 of the wife’s Response.
Each party shall pay their own separate costs of and incidental to the husband’s Application and the wife’s Response.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calder & Calder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9627 of 2009

Ms Calder

Applicant

And

Mr Calder

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 14 February 2014, the respondent to the substantive proceedings seeks the following orders:-
(1)That the wife sign all documents and do all things necessary to enable the husband to borrow the sum of $350,000 and enable the husband to reimburse to himself the sum of $171,775.07 advanced by him to the farming partnership overdraft account, whether such payments are achieved by:-
1.1Increasing the limit of the Calder and Co farming partnership (“the farming partnership”) overdraft account with National Australia Bank from its current limit of $700,000 to $1,221,775 and enabling the husband to draw down such payments; or
1.2Borrowing the said sum against the security of the Property A and/or Property C titles and paying the same to the husband.
The applicant to the substantive proceedings filed a Response on 13 March 2014 and sought the following orders:-
(1)That the Application in a Case filed by the husband on 14 February 2014 (“the husband’s interim application”) be dismissed.
(2)That in the alternative to paragraph (1) hereof:-
2.1Each of the husband and the wife sign documents and do all such acts and things as necessary to permit each of them to borrow a sum of $350,000 against the security of Property A being total additional borrowings of $700,000 or such equivalent or other sum as this Honourable Court deems appropriate (“the Total Borrowed Sum”) on the basis that:-
2.1.1One half of the Total Borrowed Sum be paid to the wife (“the Wife’s Loan”), and the wife be responsible for all payments associated with the Wife’s Loan; and
2.1.2One half of the Total Borrowed Sum be paid to the husband (“the Husband’s Loan”) and the husband be responsible for all payments associated with the Husband’s Loan.
In addition, the wife sought the following:-
·That the parties further instruct Mr D of E Pty Ltd to update his valuations of livestock owned by either or both of the parties, F Pty Ltd and any other entity owned or controlled by either the husband or the wife;
·That the parties do all such things as may be necessary to obtain a transcript of the trial proceedings for the hearing dates being 25 November 2013 to 4 December 2013 inclusive; and
·That the husband’s expert Mr B be recalled and the wife have leave to further cross examine him on the resumption of the proceedings.
The parties via their respective counsel made certain concessions and amendments to the orders being sought.
At the hearing the husband abandoned the application insofar as to the amount of $171,775.07 to reimburse the husband for monies advanced by him to the farming overdraft account.
Accordingly, the extent of the husband’s application was limited to a sum of $350,000.
Whilst it is implicit in the orders sought by the wife, her counsel made it clear that any monies advanced to both the husband and the wife (if the Court found favour in the husband’s application and therefore the alternative orders sought in paragraph (2) of the response) should be treated as an add back. This is distinct from the significant argument in the substantive proceedings as to the treatment of monies advanced or utilised by the parties.
Whilst raised in paragraph 1.2 of the husband’s application, the wife’s initial position is that any money by way of interim advance to the parties should be secured against Property A. Counsel for the wife conceded that if required the wife would agree to Property C being put forward as security albeit by way of a second mortgage over Property C to rank behind the primary security in favour of Westpac Bank.
It appeared that there was a general concession by both counsel that transcript would be required and that if there was sufficient money available arising out of this application then the parties would be able to agree to share equally in the costs of obtaining the transcript for the entirety of the proceedings part-heard to date.
Accordingly, no order is required in respect of matters relating to transcript.
There was however no agreement in respect of the revaluation of livestock or a concession that the wife to have leave to further cross examine Mr B at the resumption of the trial.

BACKGROUND

The proceedings are part-heard before me with the proceedings commencing on 25 November 2013 and on 4 December 2013 being adjourned to 17 July 2014 to conclude the evidence and for submissions to be heard.
Whilst not germane to this application, I made orders on 20 March 2014 vacating the further hearing dates in preference to a resumption of the proceedings on 17 July 2014 for two days, with the advantage of the adjourned hearing to take place in the Melbourne Registry of the Family Court of Australia rather than require the parties, counsel and possibly witnesses to conclude the proceedings in Adelaide.
The substantive proceedings are founded upon the Further Amended Initiating Application of the wife filed 25 October 2013 and the Response filed by the husband on 8 November 2013.
The short position of the wife is that she seeks to retain the farm property known as “Property C, Town H” together with a division of farm equipment, plant and machinery and a further division of livestock to equality and by reference to age, sex and breed.
In addition, there should be such further settlement sum paid to the wife (on her case $2,600,352) which would see the property of the parties, including “add backs” but excluding the husband’s interest as a beneficiary in the K Trust, divided equally between the parties.
The husband would see an overall division of the assets between the parties on the basis of 60 per cent to the husband and the remaining 40 per cent to the wife.
In broad terms, the wife asserts that the total property held and/or controlled by each of the parties (including superannuation interests) is in the sum of $17,116,362 whereas the husband puts the property pool at $12,748,879.
Whilst there is significant dispute between the parties as to both the identity of property held by each of them either by way of legal or equitable interest, there is agreement that the farm property known as Property A to be retained by the husband has a value of $6,800,000 and the farm property known as Property C to be retained by the wife has a value of $4,900,000. Subject to the liabilities secured over the properties, the net value of the farm properties significantly underpins the asset pool of each of the wife and the husband.

CHRONOLOGY

1947     Date of birth of husband (66 years)
1953  Date of birth of wife (60 years)
November 1975       Date of marriage
May 1975                  Wife joins farming partnership
1979  Husband and wife migrate to Australia
December 1979         Parties establish Calder Family Trust and acquire Property C
Late 2002Parties purchase Property A
1 August 2008            Date of separation but parties are separate under same roof
31 December 2008     Parties separate and wife vacates Property A
27 October 2009       Wife commences proceedings
April 2011Wife ceases living at Property C and moves to rented premises
9 August 2011            Wife issues application to join husband’s mother and Calder Limited to the proceedings
25 November 2013     Trial commences
4 December 2013      Trial adjourned part-heard.

EVIDENCE AND SUBMISSIONS

The husband’s application is supported by his affidavit filed 14 February 2014. The response of the wife is supported by her affidavit filed 13 March 2014 and a further affidavit from Mr I (the wife’s accountant) filed 17 March 2014.
Whilst there remains significant disagreement between the parties as to the extent of the assets held by each of them jointly and severally, there is a concession implicit by each of the parties that there are sufficient total assets against which to adjust the sum sought by the husband being $350,000 and the additional sum sought by the wife of a further $350,000. The difficulty is not the extent of the assets but that each of the parties assert that there is no ready source that can be accessed other than by further borrowings or an extension of the existing overdraft or other facilities.
To the extent that the husband seeks to obtain the money by an extension of the current overdraft facility secured over Property A it requires the wife’s co-operation. Her position is to initially oppose the orders sought by the husband but if the Court is inclined to make those orders then she seeks $350,000 to discharge and pay down her own liability. Whilst it seems that she contemplates any additional monies to also be secured against Property A, I note the concession of her counsel that if Property C was required then the wife would be prepared to proffer her property in order to provide appropriate security if necessary.
Accordingly, I am satisfied that the asset pool is notionally sufficient for any monies provided to the parties to be adjusted at the conclusion of the proceedings.
In terms of the concessions made by each of the parties it is not necessary for me to consider the profitability or otherwise of the farming partnership and in particular, the issue raised of the accuracy of the farming partnership budget for the period 1 January 2014 to 30 June 2014 as prepared by the husband and submitted to the National Australia Bank (“the NAB”). The issue is raised because the wife disputes the accuracy of the financial forecast as set out in the budget. Given that the sums sought by each of the parties are agreed to be the subject of add backs in circumstances where the property of the parties is sufficient to easily satisfy any adjustment required, I am not concerned as to whether the financial forecasts of profitability for the farming partnership are more or less accurate. Indeed it is a forecast and budget at best.
I adopt a similar approach to the financial forecast of the wife. She asserts for various reasons that the farming enterprise conducted on Property C has to date not been profitable and is unlikely to be so into the foreseeable future until the proceedings are concluded and orders are made favourable to the wife in terms of livestock, plant and equipment and a settlement sum that she seeks. To the extent that it is necessary to do so, I accept that each of the parties have approached the task of ascertaining the financial fortunes of each of the farming enterprises doing the best that they can.
The issue of the budgets prepared by each of the parties does have a tangential relevance in that neither of the parties are able to assert that the NAB has approved either the amount sought by the husband or the further amount of $350,000 as sought by the wife to the point where all that is required is the simple agreement of the parties. I am satisfied on the evidence that there has been a formal approach to the bank but that it is at an early stage in the process. The bank has not given an indication of its attitude. There is no evidence as to the process by which a loan application would be made and the criteria upon which approval or rejection is likely to occur, but I suspect that the financial budgets and forecasts to at least 30 June 2013 (noting that the farming partnership has not filed a return as yet for financial year ending 30 June 2013) together with a conservative assessment of the assets and liabilities that might be put forward as security would generally be required. The budget is part of the process.
The submission of counsel for the husband is that if the net asset position was the only lending criteria there should be no difficulty in obtaining a further extension of the overdraft secured over Property A, but I note that the budget submitted to the NAB on behalf of the partnership by the husband is the subject of critical comment by the wife.
Accordingly, any order that I might make does not have the certainty that the NAB will necessarily approve any application for extension of finance.
Neither counsel asked me to place significant weight on that adverse possibility. Whilst I am prepared to accede to that submission the parties should do all things necessary to avoid further interlocutory litigation in an attempt to find alternate finance if the current process is unsuccessful.
At paragraph 20 the husband submits that he has very limited funds that would enable him to fund his legal fees, both outstanding and anticipated, up to and including the conclusion of the proceedings. In summary, he has the following funds available to him:-
·$1,600 in a Bank of Scotland account
·$7,831.20 being his member balance in the M Superannuation Fund
·Monthly drawings of $3,000 from the farming partnership overdraft account
By way of contrast the husband submits that the circumstances of the wife are significantly more advantageous in that she has:-
·$300,000 in superannuation
·$103,856.94 being available balance on her Westpac Agribusiness 1 account facility
·Some credit facility on various credit cards
·About $28,550 being possible available funds in various accounts standing to her credit
·Monthly drawings of $5,500
The position of the husband is that he has no available funds and no ability to further borrow money, whereas the wife has significantly more opportunity.
At paragraph 25 of her affidavit the wife sets out her financial position and in summary she says that she cannot realistically borrow any further funds and that any modest sums still available to her are likely to be required in order to support the outgoings in respect of F Pty Ltd which she forecasts will trade at a loss for the financial year ending 30 June 2014.
I am not able to dissect the financial assertions made by each of the parties. I accept that they provide their financial forecasts doing the best that they can. In any event, I do not consider that the enquiry is necessary.
If I accept that each of the parties have made a proper case for the provision of further funds, I am satisfied that those funds can only be provided by way of new borrowings or an advance on existing finance arrangements and not from the ready resources of each of the parties.
At paragraph 24 of the husband’s affidavit, he sets out his requirements for further funds in order to conclude the proceedings as follows:-
(1)Counsel fees owing to Mr David Brown SC of $151,690
(2)Fees owing to Mr B $98,789.27
(3)Fees owing to Mr N £1,400
(4)Fees owing to O Accountants $536.25
(5)Fees owing to P Property Consultants £631.80
(6)Unbilled fees to Nedovic and Co $10,000
(7)Fees required to conclude proceedings $100,000
Taking into account the reasonable conversion rate for the amounts set out as English pounds, the total amount arising from paragraph 24 is about $365,000. Accordingly, I am able to clearly reconcile the amount of $350,000 as sought by the husband in terms of legal fees both outstanding and anticipated.
The position of the wife is somewhat different. Her legal fees outstanding are significantly more modest than those of the husband, but in addition she has likely future legal fees and disbursements of $125,000 necessary to complete the trial, but she also seeks a sum of $147,689.65 in respect of outstanding creditors. This sum is the subject of substantial dispute by the husband in that he claims that an amount of $54,850 owing by the wife to the Australian Taxation Office (“the ATO”) in relation to the farming partnership income should have been paid to the wife from partnership income that she retained for her own use. The wife does not accept that proposition and that issue (amongst many) is the subject of live dispute and will ultimately require a determination by me. Whilst the wife says that any monies she receives will be brought to account, if I make the order sought by the wife namely, for a further $147,689 in addition to her legal fees, there would be a concession by the wife that she should bear the ATO liability without contribution by the husband. A further sum of $30,000 is also challenged by the husband on the basis that it is “an anticipated expense” with the implication that this is really an ongoing expense of F Pty Ltd and is therefore brought to account in terms of the financial forecast of the wife.

Accordingly, the wife seeks the following:-
·Unbilled legal costs $6,000
·Anticipated future legal costs and disbursements to complete the trial $125,000
·Balance of creditors (excluding ATO and anticipated shearing costs) $62,839
Accordingly, I am prepared to accept that the wife can reasonably maintain an application for $194,439.

THE LAW

In the decision of Strahan v Strahan (2009) 241 FLR 1 the following was said:-
[79] The need for a party to proceedings under the Act to seek an order for the provision of funds to enable the payment of his or her legal costs of participating in the proceedings has been recognised for many years. It is a reflection of an important matter that distinguishes litigation under the Act from civil litigation between the parties who are not parties to a marriage, namely that “very often the wealth of the parties is controlled by one rather than both of them”; Blue Seas Investments Pty Ltd v Mitchell [1999] 151 FLR 298 at [54] per Full Court (Nicholson CJ, Lindenmayer and O’Ryan JJ)
Conceptually, providing the source of funds is available a court should look favourably upon an application by a party seeking litigation expenses, particularly if one party appears to have control of the asset pool.
Whilst I accept that is not the case here, each of the parties assert a financial position that would not enable them to discharge their past and anticipate legal fees from their own ready resources but would require borrowings to do so in circumstances where the co-operation of the other party is critical. I do not consider that there is any difficulty in the source of my jurisdiction to make such an order. As Brereton J opined in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578, an order could be made under either Sections 72 and 74, 79 and 80(1)(h) or by way of costs under Section 117 of the Family Law Act 1975 (Cth) (“the Act”).
Clearly in this case the source of jurisdiction would fall conveniently under the heading of Litigation Funding, particularly in relation to the funds sought by each of the parties to enable the litigation to conclude. It may be the case that in relation to the significant outstanding legal fees, costs and disbursements, the husband feels compelled to discharge those liabilities.
In doing so I note the total legal fees paid, outstanding and anticipated of the parties are not dissimilar.
The further sum sought by the wife of $147,689.65 would more conveniently be dealt with by way of an order pursuant to Section 80 (1) (h) given that there are pending proceedings under Section 79 of the Act.
In the marriage of Zschokke & Zschokke (1996) 133 FLR 375 as to the source of jurisdiction pursuant to Section 79 the Full Court at 390 said:-
If the order is to be made under Section 80 (1) (h), it would seem that regard should be had to the requirements in Section 79 that the orders be just and equitable and this would require the Court to undertake at least some brief consideration of the matters in Section 79 (4) including those referred to in Section 75 (2). If on a brief consideration of those matters, it seems likely to the Court that the party who is the applicant for the interim orders for an advance of funds from the other party will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the orders sought to be made (cf Wilson & Poletti).
If the source of jurisdiction is Section 117 of the Act then at 391 the Full Court said:-
If the order is to be made under Section 117 (2) then, in our view, the matters contained in Section 117 (2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in sub section (notably paragraphs (d) failure by one party to comply with Court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub section, as permitted by paragraph (g).
Accordingly, the matters considered relevant by the Full Court in Zschokke to an interim settlement order under Section 80 (1) (h) or an interim costs order under Section 117 (2) might include:-
(a)The financial position of each of the parties and their relative strength;
(b)The ability of the respondent to meet his or her own litigation costs;
(c)The inability on the part of the applicant to meet his or her litigation costs.
Brereton J in Paris King Investments set out further matters in addition to those described in Zschokke where an order is to be made under Section 117 of the Act:-
(1)There must be an arguable case.
(2)Evidence of the likely costs of litigation.
(3)It is not an essential precondition that the applicant’s legal representative will not continue to act unless the costs are paid (although this may be a matter of significance).
(4)There should be some connection with the litigation expenses being incurred at a rate “that is reasonable in all the circumstances”.
(5)An order can be made in respect of costs already incurred as well as future costs.
(6)Such other orders as may be necessary to protect the parties from any injustice arising from the manner in which the monies are expended.
In respect of an order under Section 79 (partial property order) the exercise is likely to be imprecise but regard must be had to the general proposition that it is desirable that there be one determination pursuant to Section 79 but that “in appropriate circumstances the Court is permitted to make orders that are intended to be interim or partial”.
As earlier discussed, save as to the issue of the matters raised by the husband as to the liability of the wife to the ATO and the anticipated shearing costs, there seems to be no good reason why the husband should not receive the money he seeks in respect of his legal fees both outstanding and anticipated and why the wife should not receive the same accommodation in respect of her legal fees together with the more limited sum attributable to her creditors of $62,839.
The extent of the legal fees incurred by the parties in the proceedings to date and anticipated as may be required to complete the proceedings are significant. Furthermore, neither party put to me that unless an order was made which had the effect of paying their respective legal fees that they would thereafter be unrepresented, although I note the husband’s assertion at paragraph 29 of his affidavit namely:-
The trial of these proceedings does not resume until 23 June 2014. I cannot continue to instruct lawyers and experts to act on my behalf without paying their fees.
The issue required at least a cursory consideration of the doctrine of entire contract. This is conveniently set out in the decision of Baker v Legal Services Commission [2006] QCA 145 at paragraph 3:-
In the case at least of a retainer in respect of relatively uncomplicated litigation, such a contract is entire; that is to say, the solicitor is, apart from any agreement to the contrary, bound to do what is necessary to institute (or defend) the action and to bring it to a conclusion before becoming entitled to payment of any of his professional fees, as distinct from outlays made on behalf of his client in the course of the litigation. This has been settled law for some two centuries or more. See, for example, Bluck v Lovering & Co (1887) 35 WR 232 at 233, and the authorities cited there and in Underwood, Son & Piper v Lewis [1894] 2 QB 306 at 311–312 and 314; Gamlen Chemical Co Ltd (UK) v Rochem Ltd [1980] 1 WLR 614 at 624; Re Elfis & Somers(OS 270 of 1982) 7 May 1982 (Qld Sup Ct: unreported); and Cachia v Isaacs (1985) 3 NSWLR 366 at 376 and 377. Characterising the contract as entire also has the consequence, as those and many other decisions show, that the solicitor is not entitled to unilaterally terminate the retainer unless there is what is sometimes described as “reasonable cause” or “just cause”, involving a breach or repudiation of the retainer by the client: Underwood Son & Piper v Lewis [1894] 2 QB 306 at 314. In circumstances such as those, the right of the solicitor, like anyone else, to recover his professional costs or fees for work done before termination of the retainer or contract rests on a quantum meruit, or, as it would now be described, in restitution: see Planché v Colburn (1831) 8 Bing 14.
The issue therefore would rest squarely upon the terms and conditions of the retainer agreement between each of the parties and their respective solicitors. It might be argued that the retainer agreement is not intended to be an entire contract but rather it was intended that the solicitors would perform “multiple services over a period of time rather than to conduct a single action or transaction”.
Whilst I consider that it is arguable, notwithstanding the matters raised by Brereton J in Paris King Investments, the willingness or otherwise of solicitors to complete the litigation is a relevant consideration. On balance I consider it appropriate to make orders in respect of the payments to each of the parties as I have determined.

UPDATE OF LIVESTOCK VALUATION

The wife seeks that the parties jointly instruct the single expert valuer namely Mr D to update his valuation of the livestock held by each of the parties or both of them.
The basis is set out in paragraph 29 of the wife’s affidavit namely:-
While I may review my position if [the husband] is, in reply to this Response, seek an update valuation of other assets, at present I seek only an updated livestock valuation, and not an updated valuation of other assets, for the following reasons:-
[29.1]The nature and type of livestock of each of [the husband] and me changes regularly, owing to births, deaths, sales and purchases;
[29.2]It is my case in these proceedings that there ought to be an equitable distribution in specie of such livestock owing to age, sex and breeds.
The wife seeks to contrast the valuation of livestock within the other more static assets of the parties and notwithstanding that there has been significant expense incurred to date in the valuation exercise, it is the livestock that is most likely to have changed simply because of natural attrition and the normal sale and purchase process engaged in by each of the parties.
If that were the only consideration I would not consider that the wife has presented sufficient evidence to support her application.
There is however a significance to the valuation and in particular the identification and delineation of livestock owing to age, sex and breed as being integral to the wife’s application but also as being part of the outline material presented by each of the parties at the commencement of the proceedings.
The proceedings have not yet concluded. Whilst it is not technically an application to adduce new evidence, the relevant matters that would be applied in those circumstances have resonance to this application.
The consideration by Treyvaud J in Gelley & Gelley(No 1) (1992) FLC 92-290 is of assistance.
His Honour referred with approval to the decision of Muirhead J in Murray v Figge (1974) 4 ALR 612 at page 612. His Honour said as follows:-
This case was similar to Watson’s case, in that after the hearing was completed and judgment had been reserved, counsel for the plaintiff, with his opponent, saw the judge in chambers and said he had forgotten to tender some interrogatories and answers. Muirhead J said out the three tests applied in Watson’s case namely, the fresh evidence would require to be so material that the interests of justice require it, the evidence if believed would probably affect the result, and the evidence could not by reasonable diligence have been discovered before. His Honour went on to say:-
I would, speaking for myself add to that category the circumstances where such inadvertence was established provided the evidence was clearly admissible, could be admitted on condition which ensure no prejudice to the other party by reason of its introduction at a late point in time, and providing all was at the interests of justice so required.
My only hesitation is that the evidence relied upon by the wife for the revaluation of livestock is scant and really requires a decision based only on the efflux of time. Nonetheless, I accept that the natural order of things would suggest livestock numbers might vary from year to year and the matter may certainly be more complicated by a change in the breed, age and sex of livestock.
To the extent that the exercise may ultimately turn out to be futile is a matter that can be remedied by a costs order. The wife is clearly on notice that her application for a revaluation of livestock is opposed and in circumstances where the evidence relied upon is cursory that is a risk to be taken by her.
Any prejudice to the husband can be remedied by an order in terms of the orders sought by the wife at paragraphs 3(a) to (c) inclusive but with the initial costs to be borne by the wife and the husband being required to contribute one half of the costs of valuation should the exercise ultimately turn out to be meritorious.

RE-EXAMINATION OF MR B

The basis for the proposed re-examination of Mr B is to be found in paragraph 33 of the wife’s affidavit namely:-
In light of the content of Mr [B’s] submissions to the National Australia Bank of 24 February 2014, and referred to earlier in this affidavit, I seek to again ask questions of Mr [B] at the resumption of the trial in this matter.
Annexure JEC8 to the wife’s affidavit is a letter from Mr B to Mr Q of NAB Business Banking. The letter appears to be directed to the provision of a business plan with the underlying intention of securing finance needs of the farming partnership and the husband. To that extent Mr B has prepared a budget with its purpose to persuade the bank to increase the overdraft position arising out of debt repayment and legal expenses. The budget seeks to establish that Property A has an underlying capacity to service the increased debt.
The document complained of by the wife is a budget and to some extent it is a prophecy that is fulfilled by certainty by reference to the financial year ending 30 June 2013 and the financial year ending 2014.
I do not consider that the preparation of a budget by Mr B in and of itself is a matter that would ordinarily support an application for the re-examination of the witness.
In any event, Mr B is interpreting information provided to him and using his judgement in respect of projections. I do not see how the evidence that he has given is impacted on by either the considerations he brings to bear in the preparation of the budget or in respect of any inconsistency between evidence given and the budget if that is what the wife seeks to rely upon. If it is, then that case has not been established.

CONCLUSION

I am prepared to make orders in terms of the amounts discussed for the husband and the wife to the extent that the wife (but also the husband) might seek further amounts that can be the subject of agreement between them, particularly given the wife’s concession that if Property C is required she is prepared to co-operate in that property being used as security albeit ranking in priority to that of Westpac Bank.
Accordingly, I make orders as set out at the beginning of these reasons.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 March 2014.

Associate:

Date: 21 March 2014