Fadley and Southwell and Anor

[2017] FamCA 844

FAMILY COURT OF AUSTRALIA

FADLEY & SOUTHWELL & ANOR [2017] FamCA 844

FAMILY LAW – PRACTICE AND PROCEDURE – Where the orders are made by consent discharging the single expert from valuing a valuable collection – Where a new single expert is appointed to value the collection – Where that single expert is to attend the vaults alone for the purposes of undertaking his role as single expert.

Family Law Act 1975 (Cth)

APPLICANT: Mr Fadley

RESPONDENT: Ms Southwell

2^nd RESPONDENT: B Pty Ltd

3^rd RESPONDENT: Ms Christie

4^th RESPONDENT: Mr Cantwell

FILE NUMBER: SYC 2196 of 2014

DATE DELIVERED: 5 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 5 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in Person

COUNSEL FOR THE RESPONDENT: Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT: Swaab Attorneys

COUNSEL FOR THE 4^TH RESPONDENT: Ms Petrie

SOLICITOR FOR THE 4^TH RESPONDENT: Blackman Legal

Orders

1. I mark the document entitled Consent Orders Exhibit 9 and make orders in accordance with Exhibit 9 as attached:

2. Mr C of D Services be appointed as single expert to value the materials held in the E Vaults.

3. Mr C shall attend at the E Vaults for the purposes of undertaking his role as single expert alone and the applicant husband and first respondent de facto wife shall not attend with him.

4. Mr C is to electronically forward my associate a copy of his report when it becomes available and the matter will be relisted upon receipt of the report. Mr C is also to forward his report to both parties at the same time.

5. Both parties’ costs are reserved.

6. I note that I have been informed by the wife that Mr C has indicated that he will be able to complete the report within six weeks.

7. Both parties have liberty to come back to me if there is some significant delay beyond that period of time in Mr C producing the report.

8. Order 13 made 22 June 2017 be discharged.

9. I note that the husband requested the wife produce to him a copy of the video that was the subject of the order 14 of 22 June 2017. I note that the wife has indicated that she did not actually obtain a copy of the video in accordance with that order.

10. I dismiss order 7 as sought in the short minutes of order sought by the de facto wife as contained in her case outline dated 16 August 2017.

Exhibit 9

1. That the Fourth Respondent be discharged from being a single expert in these proceedings.

2. That the Fourth Respondent not be required for cross-examination in these proceedings.

3. That within seven (7) days of the date of these Orders, the Fourth Respondent shall pay to the Applicant De Facto Wife the sum of $70,000 inclusive of the cost to reimbursement the Applicant for the costs she has paid for the Fourth Respondent’s expert report.

4. That immediately upon the Fourth Respondent’s compliance with Order 3 herein, the Fourth Respondent be removed as a party to these proceedings.

5. That forthwith, the Fourth Respondent’s solicitor shall surrender the three items in the possession of the Fourth Respondent’s solicitor to Ms G, the Applicant De Facto Wife’s Solicitor, for production to the new valuer.

6. That the Applicant De Facto Wife’s application against the Fourth Respondent in these proceedings otherwise be dismissed.

7. That there otherwise be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2196  of 2014

Mr Fadley

Applicant

And

Ms Southwell

Respondent

And

B Pty Ltd 

2^nd Respondent

And

Ms Christie 

3^rd Respondent

And

Mr Cantwell

4^th Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. As a result of orders I have made today, Mr Cantwell ceased to be the single expert for the purposes of providing an opinion in relation to the value of the collection. Mr Cantwell’s role as a single expert ceased in circumstances where it was alleged he had stolen items during a valuation of the collection.

2. The wife proposes that Mr Cs of D Services be appointed as the single expert to value the collection contained in the E Vaults. She says that she and the de facto husband know Mr C on a professional basis and that seems to be so. Mr Fadley seems also to know Mr C on a personal basis. The wife says that the collectibles community is a small community and she does not think it possible for the parties to identify a valuer who they do not know at least professionally. In the alternative, the wife proposes that Mr F of F Services be appointed as the single expert but her preference is for Mr C.

3. On 19 December 2016 a notation was made that in the event Mr Cantwell either indicates in writing to both parties he is not prepared to do the valuation or fails to complete the valuation by the end of February 2017 then the parties have agreed that Mr Cantwell will be removed as the single expert for the purposes of carrying out the valuation of the collections and Mr F will be substituted in his place. That was a notation not an order and the condition precedent in relation to that agreement between the parties ceased when Mr Cantwell actually did complete a valuation in this matter.

4. The wife refers to pages 20, 21 and 22 of her affidavit sworn 10 July 2017. Those pages provide Mr C’s rate of costs and his resume. I am satisfied that he is a person who is qualified to carry out the valuation. Page 22 also provides Mr F’s costs which are higher than Mr C’s. The previous order that I made required the wife in the first instance to fund the costs of the valuation although that would be then a matter subject to adjustment at the final hearing. The wife points to the difference in cost as one of the reasons why she wishes Mr C to carry out the valuation but she also points to his expertise as being somebody who is properly qualified to do so.

5. The husband hasn’t actually filed any material in accordance with the directions in respect to this topic but refers back to an affidavit that he swore on 17 December 2016. At paragraph [11] of that affidavit he sets out a conversation that he had with Mr C where he raised with Mr C a difficulty he believed then and still believes now existed on both a personal and a professional level if Mr C gains detailed knowledge of what is in the parties’ collections and asserts it would give Mr C a commercial advantage in future dealings between the husband and Mr C. Apart from that bald assertion I have no evidence at all that would support such a contention. I don’t understand for example why, if the husband felt that way, he would simply not have any dealings with Mr C in the future.

6. In all the circumstances I find that it is appropriate on the evidence to make an order in accordance with the orders sought by the wife in the matter and I will make an order that Mr C of D Services be appointed as single expert to value the materials held in the E Vaults.

7. One issue arose between the parties as to the wording in the letter of instruction to the single expert. The wife wants the following sentence to be included in the letter of instruction to Mr C, “The current market value is to be assessed as auction estimates and to assume no selling costs.” I am not inclined to include the sentence. It will be a matter for the expert to choose and explain his methodology. If the wife receives the valuation back from Mr C and thinks she needs some further information from him she can provide written questions to him and he can provide written answers on the basis upon which he has reached fair market value. There is no controversy about the other alterations to the letter.

8. The wife makes an application that the previous arrangement which allowed the parties or their representatives to be present during the period when the expert valued the collections be removed. The wife says that the husband’s behaviour during the inspection by Mr Cantwell was disruptive and slowed down the process and that increased the costs associated with the valuation. The wife sets out what she says was the husband’s behaviour that was disturbing to her in paragraphs [9] and [11] of her affidavit filed 15 August 2017. I must say nothing in those paragraphs would indicate that the husband acted in any particularly inappropriate manner. The main complaint seems to be that the husband and Mr Cantwell chatted to one another and that lengthened the amount of time that the inspection of the collection took and consequently the cost of the valuation. Mr Lloyd’s submission that somehow the husband was involved in intermingling the collection is not supported by the wife’s evidence.

9. The husband hasn’t filed any material in response to paragraphs [9] to [11] of the wife’s affidavit. He has expressed from the bar table and has expressed to me on previous occasions his personal emotional attachment to the collections and his negative feeling about any other person handling the collection without him being present. I don’t think that that’s a strong enough reason to overcome the evidence that I must accept from the wife because it is unchallenged about the lengthening of the valuation process taking place as a result of the husband being present. As the wife points out, Mr C will be monitored by video which can be reviewed. There is no suggestion that Mr C is likely to be the subject of allegations similar to the allegations brought against Mr Cantwell. There is no reason for anybody else to be there but Mr C when he is doing his valuation work and I will make the orders sought by the wife. Mr C shall be allowed to attend the E Vaults alone for the purposes of conducting the valuation.

10. It flows from that decision that the letter of instruction to Mr C will have those two paragraphs removed that relate to the parties attending and the other amendments that have been agreed in relation to the other two matters going to what orders would be attached to the letter and those orders will be the orders that I make today and the target date by which the report is due which should be six weeks. I will make a direction that Mr C provide me with a copy of the report when it becomes available. I will then relist the matter after I receive the report. Mr C is to provide the report obviously to both parties as well at the same time that he forwards it to my associate electronically. I will reserve both parties’ costs of today. I note I have been informed by the wife that Mr C has indicated that he will be able to complete the report within six weeks. I will give both parties liberty to come back to me if there is some significant delay beyond that period of time in Mr C producing the report.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 5 October 2017.

Associate:

Date:  24.10.17