Hall and Hall (No 2) - [2016] FamCA 194

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO 2)

[2016] FamCA 194

FAMILY LAW – PROPERTY – interim orders – single expert valuations – where the husband has previously failed to comply with Court orders – where it is ordered that the husband provide written instructions to the single expert valuers within fourteen days.

FAMILY LAW – COSTS – party / party basis – where the Court is not satisfied that an order for the husband to pay the wife’s costs with respect to the valuation issues on an indemnity basis has been established – where it is ordered that if the husband fails to comply then the requirement to authorise the commencement of valuations is dispensed with and the husband is to pay the wife’s costs on a party / party basis in relation to the instructions to the single experts.

Family Law Act 1975 (Cth) s 117

Bele & Vaughan (Costs) [2012] FamCAFC 198
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Hall

RESPONDENT:

Mr Hall

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

3671

2013

DATE DELIVERED:

1 April 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

10 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livesey, QC
(with Ms Kari)

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lindsay

SOLICITOR FOR THE RESPONDENT:

Jordan & Fowler Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

Within fourteen [14] days from this date the husband provide written instructions to the single expert valuers as set out in paragraphs 8 and 9 of the orders of 10 February 2015 as amended by paragraphs 1, 2 and 7 of the orders of 22 September 2015.
Within seven [7] days of the husband complying with the abovementioned order the husband forward to the solicitors for the wife written confirmation of his compliance with the orders.
If the husband fails to comply with 1 or 2 of the above orders then the requirement for the husband to authorise the commencement of the valuations pursuant to paragraphs 8 and 9 of the orders of 10 February 2015 as amended on 22 September 2015 and as further amended by the order of this date be dispensed with and that the husband pay the wife’s costs on a party / party basis in relation to the instructions for the valuations being:
(a)the cost of any subpoena issued by the wife hereafter to the husband’s accountants for the provision of necessary documents to enable the valuations to progress; and
(b)the additional costs of the wife in instructing the valuers and providing documents requested of the husband.
Such costs to be determined in accordance with the Family Law Rules 2004 (Cth).
The husband pay the wife’s costs of and incidental to the Application in a Case filed on 16 February 2016 such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hall and Hall (No 2)

Details

AGLC: Hall and Hall (No 2) [2016] FamCA 194
Case: [2016] FamCA 194
Decision Date: 1 April 2016

CaseChat Overview and Summary

In *Hall and Hall (No 2)*, Dawe J considered an application concerning interim property orders and costs in a family law proceeding. The dispute centred on the husband's compliance with previous court orders regarding the provision of written instructions to single expert valuers.

The primary legal issue before the court was whether the husband should be ordered to provide written instructions to the single expert valuers within a specified timeframe, and the consequences of his failure to do so. A related issue concerned the basis upon which the husband should pay the wife's costs associated with these valuation issues.

Dawe J reasoned that given the husband's previous non-compliance with court orders, it was necessary to impose a strict deadline for him to provide written instructions to the single expert valuers. The court ordered that the husband must provide these instructions within fourteen days. The court further ordered that if the husband failed to comply with this order, the requirement for him to authorise the commencement of valuations would be dispensed with, and he would be ordered to pay the wife's costs on a party/party basis in relation to the instructions for the valuations. The court was not satisfied that an order for the husband to pay the wife's costs on an indemnity basis had been established. The court also ordered the husband to pay the wife's costs of and incidental to an application filed on 16 February 2016. The wife's application filed on 16 February 2016 was dismissed.

Orders

Orders of the court

Within fourteen [14] days from this date the husband provide written instructions to the single expert valuers as set out in paragraphs 8 and 9 of the orders of 10 February 2015 as amended by paragraphs 1, 2 and 7 of the orders of 22 September 2015.

Within seven [7] days of the husband complying with the abovementioned order the husband forward to the solicitors for the wife written confirmation of his compliance with the orders.

If the husband fails to comply with 1 or 2 of the above orders then the requirement for the husband to authorise the commencement of the valuations pursuant to paragraphs 8 and 9 of the orders of 10 February 2015 as amended on 22 September 2015 and as further amended by the order of this date be dispensed with and that the husband pay the wife’s costs on a party / party basis in relation to the instructions for the valuations being:

(a) the cost of any subpoena issued by the wife hereafter to the husband’s accountants for the provision of necessary documents to enable the valuations to progress; and

(b) the additional costs of the wife in instructing the valuers and providing documents requested of the husband.

Such costs to be determined in accordance with the Family Law Rules 2004 (Cth).

The husband pay the wife’s costs of and incidental to the Application in a Case filed on 16 February 2016 such costs to be agreed and in default of agreement within one [1] month as assessed.

The Application in a Case filed by the wife on 16 February 2016 is dismissed and removed from the active pending cases list.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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