Guildford & Guildford

[2009] FamCA 428

FAMILY COURT OF AUSTRALIA

GUILDFORD & GUILDFORD [2009] FamCA 428

FAMILY LAW – PROCEDURAL – Interim hearing

APPLICANT: Ms Guildford

RESPONDENT: Mr Guildford

FILE NUMBER: ADC 2121 of 2007

DATE DELIVERED: 30 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 30 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nelson QC

SOLICITOR FOR THE APPLICANT: Bellchamber Legal

COUNSEL FOR THE RESPONDENT: Mr Owen

SOLICITOR FOR THE RESPONDENT: T F Owen and Co

Orders

1. That leave is granted to the parties and their legal representatives to inspect and copy the documents contained in Schedule 2 produced by the ANZ Bank pursuant to the subpoena issued on 16 April 2009.

2. That leave is granted to the wife to amend paragraph 1 of the orders sought in her application filed on 28 February 2008 to include alternative grounds for setting aside the order made on 12 May 2006 namely pursuant to s 79A 1(b) and 1(c), such amended application to be filed and served within 14 days.

3. That within 21 days the wife provide to the solicitors for the husband particulars of the additional grounds relied upon to set aside the order made on 12 May 2006 such particulars to be provided informally by way of letter.

4. That the single expert Mr B provide updated valuations of all items of real estate valued by him such updated valuations to be filed and served within 28 days of the date hereof.

5. That a single expert to be agreed upon by the parties be appointed forthwith to value the tenements held jointly by the parties.

6. That leave is granted to the wife to ask questions of the single expert Mr B in relation to his valuations such questions to be put in writing to Mr B and a copy to the husband’s solicitors within 7 days of the date hereof and the single expert to provide answers to the questions in writing with a copy to the husband’s solicitors within 21 days thereafter.

7. That further consideration of this case be adjourned to Registrar Dore at 11.30am on 11 June 2009 for directions.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2121 of 2007

MS GUILDFORD

Applicant

And

MR GUILDFORD

Respondent

EX TEMPORE REASONS

1. This matter was listed today for the first day of trial. However, because it is a property settlement matter and not within Division 12A of the Family Law Act 1975, today was a day to identify the issues and to make orders for the filing of affidavits of evidence‑in‑chief and to deal with what I will term any minor outstanding matters such as, for example, giving leave to inspect documents produced pursuant to a subpoena. This day is also supposed to be a day by which time the parties have settled upon a joint balance sheet with valuations being agreed, or in place. 

2. Unfortunately, after hearing from counsel my assessment of this matter is it is simply not ready for the first day of trial.

3. There is a need to update the valuations obtained.  There is a need to instruct a single expert to value certain tenements.  I am told there is now agreement that that valuer needs to be sourced interstate, but there is no indication of who that valuer is, nor how long that valuer might take to value the tenements.

4. The wife, through her counsel, also seeks leave to put questions to the single expert who has valued the real estate, and there is an application for leave to amend the orders sought by the wife in her application for final orders. 

5. There is what has been described as an immediate issue, namely, the payment of a debt or reduction of a debt to E Company which has not been able to be agreed, although I am perplexed as to why that is not the case given that the debt is there, and it has to be paid.  There is an obvious source of funds, namely, the sale of a piece of real estate.  There are some neighbours who are interested in purchasing that, and it was initially proposed that it be sold at value.  The husband now says, well, hold on, I say the value has increased and I am not prepared to sell the land at the value put on it by the single expert.  There needs to be an updated valuation and then it will be appropriate to sell that piece of land to the neighbours on the assumption that a price can be agreed.

6. That again gives the flavour of what I am concerned about, namely, that this matter is simply not ready for a first day of trial.  That matter along with the other matters that I have referred to, should have been resolved one way or another before now either by agreement or by interim applications being made.

7. I appreciate counsel have informed me that some of those issues were raised with the Registrar when the Registrar was listing the matter for a first day of trial today, but the application now before the court was filed in February 2008.  The parties have had in excess of a year to address these issues which are now being raised, and I note from the Registrar's draft order sheets that indeed some of these issues have been raised prior to today but they have simply not been attended to.

8. The balance sheet I have to put aside because there are now to be updated valuations.  I also do not know where the issue of further questions is going to take this matter.  I do not know what is going to come of the inspection of the subpoenaed documents, and of course I do not know what is going to come of the valuation still to be done of the tenements.

9. Either the parties want this dispute finalised by this court - and the only way this court finalises disputes is by trial, or I will dismiss all applications.  However, I am not going to spend any further time today on this matter when the parties are simply not ready.

10. That does not mean that I am going to allow this matter to drift.  I am going to make some orders today and I am going to refer the matter back to a Registrar.  The matter will remain in my docket for now, but it is not going to remain there whilst the parties take their own good time to prepare it for trial.  That is not going to happen.  This court is going to decide, as I say, in the not too distant future how this matter should progress.  Either the parties want a trial if they cannot settle it, or the applications are going to be dismissed.

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 30 April 2009.

Associate