GREER & MACKINTOSH

[2010] FamCA 371

FAMILY COURT OF AUSTRALIA

GREER & MACKINTOSH [2010] FamCA 371

FAMILY LAW – PRACTICE AND PROCEDURE – REVIEW – application in a case seeking a review of Registrar’s orders with respect to the appointment of a single expert to undertake valuations – application in a case seeking a stay of the orders pending determination of the review – where the wife held concerns about an alternative valuer initially agreed upon who had a previous involvement with the parties – applications dismissed

FAMILY LAW – COSTS – application for costs by the wife – no circumstances justifying an order for costs – application dismissed

APPLICANT: Mr Greer

RESPONDENT: Ms Mackintosh

FILE NUMBER: ADC 2242 of 2009

DATE DELIVERED: 25 January 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G.A. Howe

SOLICITOR FOR THE APPLICANT: Howe Martin & Associates

COUNSEL FOR THE RESPONDENT: Mr Whitington QC

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

Orders

1. That the two Applications in a Case filed by the husband on 22 December 2009 be dismissed and removed from the active pending cases list.

2. That the application for costs made by the wife be dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2242 of 2009

MR GREER

Applicant

And

MS MACKINTOSH

Respondent

EX TEMPORE REASONS

1. I have before me an application filed by the husband on 22 December 2009, seeking that the order made by Registrar Paxton on 15 December 2009 be reviewed, or rather paragraphs 1, 2, and 3 of that order be reviewed.  Separate to that there is another Application in a Case, filed by the husband on the same date seeking a stay in relation to the order made by the Registrar pending determination of the review. 

2. The primary order that the Registrar made on 15 December 2009 was that, Mr O be appointed to be the single expert for the purpose of undertaking valuations of three particular items of real estate, which I shall describe in a short hand way as the K property, the H property and the N property.  The husband’s application before the Registrar was that a Mr W be appointed as the single expert to value the said three properties and that application is contained in an Amended Application filed on 15 December  2009, and in particular in paragraphs 6 and 7 of that application. 

3. The wife’s position in relation to the review is that she opposes it and seeks, in effect, to maintain the order of the Registrar, namely that Mr O be the single expert to value these three properties. 

4. Mr W is the valuer who was proposed by the husband through his solicitors in or about September 2009 to value the K and the N properties.  The wife agreed to that, and that is quite clear from the documents that I have been referred to, both by way of letter and again in affidavit material. Subsequently, the H property was added to the list of properties to be valued and indeed, as I understand it, that was a proposal of the wife herself, which was agreed to by the husband. 

5. However, once these proceedings had commenced, the wife objected to Mr W being appointed as the single expert.  The initial issue involving Mr W was related to the letter of instruction which was to be sent to him.  The wife’s solicitors drafted a letter which was very straight-forward, and in simple terms requested him to value the properties.  The husband’s solicitors, though, suggested that the letter of instruction include reference to an earlier valuation undertaken by Mr W in 2004, not in relation to any matrimonial proceedings, but in relation to issues involving the husband’s cousin.  The wife did not agree to that being included in the letter, and the matter stalled at that point. 

6. Sometime later the wife suggested an alternative valuer, namely Mr B.  However, when it was pointed out that Mr B’s mother was a close friend of the wife, the wife abandoned that proposal.  Ultimately Mr O became her valuer of choice.

7. Pausing here, I consider it important to understand the procedural history of this case as it relates to the issue of valuation of the three properties, and I set out the same as follows:

   7.1On 23 June 2009 the wife filed an Initiating Application seeking orders for property settlement.

   7.2On 11 September 2009 the husband filed his Response to the Initiating Application also seeking orders for property settlement.

   7.3On 14 October 2009 the husband filed an Application in a Case seeking an order that the wife’s financial questionnaire be uplifted.

   7.4On 21 October 2009 the wife filed a Response to an Application in a Case seeking a number of orders including an order that the husband authorise his solicitor to countersign joint letters of instruction in relation to the valuation of the three properties.

   7.5On 12 November 2009 the husband filed an Amended Application in a Case seeking a number of orders including an order dismissing the application to countersign the letter of instructions.

   7.6On 3 December 2009 the wife filed an Amended Response to an Application in a Case seeking in lieu of the previous order, an order that C Valuers (Mr B) be appointed to value the K and N properties or that each party appoint their own valuer of the three properties.

   7.7On 14 December 2009 the wife filed a Further Amended Response to the Application in a Case seeking in lieu of the previous order, an order that Mr O be appointed to value the K and N properties.

   7.8On 15 December 2009 the husband filed an Amended Application in a Case seeking orders that Mr W be appointed to value the real estate.

   7.9On 15 December 2009 Registrar Paxton ordered that Mr O value the three properties, that the parties confer as to his instructions, and that they each pay one half of his fees.

8. Thus, just to recap the sequence then, Mr W was proposed, he was agreed to, but there was an issue about the instructions to be given to him and the matter stalled.  The wife then proposed Mr B, and indeed sought an order about that but later abandoned that and on 15 December 2009 her application was that Mr O be appointed as the single expert.  The application of the husband was that Mr W be appointed. 

9. Now, the husband says that the wife has not put forward a legitimate or justifiable reason as to why Mr W should not be appointed as the single expert.  The wife though, has set out in her affidavit of 3 December 2009 and in particular, paragraph 10 of that affidavit as well as paragraph 19, her reasons for opposing Mr W as the single expert.  I should mention that the wife canvassed a number of alternative valuers and a schedule of possible valuers was set out in Annexure “A” to her affidavit filed on 14 December 2009.

10. There was correspondence passing between the solicitors about that range of possible valuers and just looking at that for the moment, at the end of the day the only valuer about which neither party had a significant issue was Mr O.  Although there was no objection to him per se in terms of he having any involvement with the parties or with the properties previously, the issue for the husband with Mr O was the cost of his valuations.  His quote was $11,550 inclusive of GST compared to Mr W of $3500 plus GST.  On the documents I have read there was an issue as to whether Mr O was including the valuation of all of the properties in that quote.  Mr Whitington has indicated that on his instructions Mr O’s quote does relate to the three relevant properties.

11. Thus, the husband’s position in relation to Mr O was simply that why should the parties have to pay $11,500 when they could have Mr W for $3500.  Obviously though, the husband was also putting to me the history of the matter and suggesting that the wife has been disingenuous in her approach.

12. Mr Whitington’s submission is that the costs should not matter terribly much in a case like this where there are significant assets.  The difference between the costs of Mr W and the costs of Mr O is inconsequential in the overall scheme of things.  In any event, he says that the wife does present a legitimate reason for opposing the appointment of Mr W, and perhaps if I can deal with that now. To repeat, that reason is set out in paragraph 10, primarily, but also paragraph 19, of the wife’s affidavit of 3 December 2009, and Mr Whitington has particularly taken me to subparagraph 10.3 and 10.4.

13. In subparagraph 10.3 the issue raised is that Mr W, in his previous valuation, had not included the homestead at K and/or the driveway paddock.  Now, Mr Howe tells me that that is not correct, and I have before me a part of the valuation of Mr W which prima facie indicates that that is not correct.  It seems though that the wife was operating primarily on a document prepared by the husband’s cousin in the context of that early valuation of Mr W’s and it is Annexure “D” to the affidavit of the wife, where the cousin says, “the [K] house was not included in his valuation”.  I accept that that statement was not correct, and thus that cannot be a reason for excluding Mr W.

14. Turning to sub paragraph 10.4, this is really, it seems to me, the primary basis for the wife’s objection to Mr W being appointed.  The allegation is made that the vineyard was undervalued by Mr W and a part of a letter from a Mr BG of BG & Associates to the husband is annexed to the wife’s affidavit in support of that allegation, and that is Annexure “E”.

15. Unfortunately, Annexure “E” is just one page of the letter.  It seems that there were another two pages and I take that from what appears at the top of the one page that I do have.  It is obvious though that the letter is a letter to the husband and it is common ground that Mr BG is an accountant who advises or has advised the husband.  The point is that in that letter, and this is in the context of Mr W’s previous valuation and the involvement of the husband’s cousin and what was occurring at that time, namely the husband negotiating a settlement with his cousin, based on Mr W’s valuation, and the suggestion is made by Mr BG on this page that Mr W’s valuation is an undervalue of the land value, comparing it with the council value.

16. Now, of course, there is no other evidence about that issue that is before me.  I do not know what the husband’s position was in relation to it.  I do not know anything more than what appears on this page and I also do not know how this came to be in the wife’s possession.  Mr Howe has indicated it has not been previously discovered.  I also do not know, and this is important on Mr Howe’s submission, when the wife came by this letter, and whether it was a letter that she had or had knowledge of when she initially agreed to Mr W. 

17. However what I take to be the wife’s case is that she initially agreed to Mr W, but following upon the husband wanting to remind Mr W of his earlier valuation, the wife reconsidered her position and in looking at that earlier valuation and the circumstances surrounding it she had a concern that Mr W would consider himself, in a sense, constricted by his earlier valuation, and that is a valuation about which the wife says that she has some concerns stemming not the least from the one page of the letter from Mr BG. 

18. The husband’s position is that the wife knew this before she agreed to him being the single expert and thus there should be no concerns now about appointing him to be the valuer.  There is also no challenge to his qualifications and experience by the wife.

19. Now, that is not necessarily a brief but it is a potted history of this matter and a summary of the respective cases of the parties. 

20. In looking at the appointment of a single expert, the relevant issues, I suggest, are the qualifications and experience of the valuers proposed.  In this regard, there is no challenge to either Mr O or Mr W.  The next relevant issue, I suggest, is the respective positions of the parties and their knowledge of the proposed valuers, and on the other side of coin, the involvement of any proposed valuer in any previous dealings with either party.  In this regard, we have the situation as I have outlined with Mr W.

21. It seems to me, from what the wife has presented, that there is sufficient there for her to raise the concerns that she has, and if this issue was being brought to the Court on a simple application, if you like, supported by an affidavit by each party and this was the first time the court was to deal with this, and the wife raised the issues that she has about Mr W, then there would be no contest, and Mr O would be the person appointed because there is no issue with him in terms of any previous dealings with the parties.  There is the extra cost, but I do not consider that a sufficient reason to exclude Mr O from the possible valuers to be appointed as the single expert per se.  It is the comparison with Mr W’s fees which creates the issues for the husband there.  However, I agree with Mr Whitington that when one looks at the assets involved in this case, the difference between the two sets of fees is relatively inconsequential, and although I cannot make any finding about it, it is not beyond the realms of possibility that Mr W’s fees are lower because of his previous dealings and that, as Mr Whitington has succinctly said, highlights the point of the wife’s concerns.

22. It really is the history of how the matter has come to this point, which is the issue raised by the husband, and his solicitor has taken me chapter and verse through that history and the affidavit material commencing with the initial acceptance by the wife of Mr W, but it seems to me that is not the issue for the Court.  The issue is choosing between two valuers, one who has had no previous involvement with the parties, and one who has had a previous involvement.  That involvement, to repeat, is sufficient to exclude Mr W.

23. That is not meant to be or intended to be any criticism of Mr W or his expertise, his qualifications or his independence.  The concern relates to his earlier involvement.  One party, the wife, obviously has an issue about that, and it seems to me those issues can be avoided by appointing Mr O, because of his position of having had no previous dealings with the parties.  Thus, I propose to dismiss the husband’s application for a review.

24. I now have an application for costs by the wife, consequent upon the order that I have made dismissing the application for review.  That application is opposed.  In my view, there are no circumstances here that would justify an order for costs in favour of either party.  I consider the history of this matter to be relevant to the issue of costs, and in that regard, this matter should not have reached the stage it has, and without allocating any blame, which is not what I am intending to do, both parties need to take some responsibility for how the matter has progressed.  In my view, an appropriate outcome is that each party should bear their own costs.  Thus I dismiss the application for costs.

I certify that the preceding 24 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 January 2010.

Associate