Hall and Hall (No 4)

[2016] FamCA 746

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO 4) [2016] FamCA 746

FAMILY LAW – PROPERTY – variation of interim order – where the husband seeks a variation of interim orders that provide for him to pay all outgoings in relation to the former matrimonial home – where the application is opposed – where the Court is satisfied that the wife has established a need – where the application is dismissed.

FAMILY LAW – PROPERTY – value of property – where it is ordered that the husband instruct an expert in relation the valuation of real estate, plant and equipment, and wholesale stock.

FAMILY LAW – INJUNCTION – preservation of property – where the wife seeks an injunction in relation to removal of a caveat – where the Court considers it appropriate to restrain the husband from dealing with the property without consent of the wife – where the Registrar-General of the Lands Titles Office is directed to register the injunction on the Certificate of Title.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hall

RESPONDENT: Mr Hall

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 6 September 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 25 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livesey, QC
(with Ms Kari of Counsel)

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Roder, SC
(with Mr Jordan)

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler

Orders

1. Upon receipt of the draft joint letters of instructions prepared by solicitors for the wife the solicitors for the husband have ten [10] days to respond indicating whether the husband has instructed them to sign the joint letters of instructions or seeking alterations to the joint letter and failing which the wife’s solicitors are authorised to instruct the valuers as if jointly instructed.  The letters of instructions to which this order applies are in relation to the valuation of real estate, plant and equipment, wholesale stock with the proposed valuers being Mr GG of DD Valuers, Mr AR of PGS Valuers and FG Valuers.

2. Paragraph 8 of the orders of 10 March 2016 is discharged and that in lieu thereof it is ordered that the husband (whether in his personal capacity or in his capacity as a director or shareholder of PP Pty Ltd) is restrained and an injunction is granted restraining the husband from disposing of, encumbering or otherwise dealing with the former matrimonial home at E Street, Suburb F in the State of South Australia SAVE AND EXCEPT with the prior written consent of the wife.

3. The Registrar-General of the Lands Titles Office is requested to forthwith register the injunction provided in paragraph (2) herein on the Title of the property at E Street, Suburb F in the State of South Australia being the whole of the land comprised in and described by Certificate of Title Register Book Volume … Folio ...

4. The husband’s Application in a Case filed on 15 April 2016, the wife’s Application in a Case filed on 27 June 2016 and the wife’s Response to the Application in a Case filed on 9 August 2016 are otherwise dismissed.

5. The issue of costs of and incidental to the applications are adjourned to be determined by the trial Judge.

6. Certified fit for counsel and senior counsel.

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 Hall & Hall (No 4) 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 ADELAIDE

FILE NUMBER: ADC 3671  of 2013

Ms Hall

Applicant

And

Mr Hall

Respondent

REASONS FOR JUDGMENT

Introduction

1. On the afternoon of 25 August 2016 I heard submissions in relation to the interim applications concerning financial matters between the husband and the wife.

2. Previously on 22 April 2016 paragraphs 2 and 6 of the husband’s Application in a Case filed on 15 April 2016 were dismissed. 

3. Counsel indicated that they were not now pursuing paragraph 4.  That left paragraphs 3 and 5 still to be determined.

4. In paragraph 3 of the Application in a Case filed on 15 April 2016 (document 249) the husband seeks:

   3.Paragraphs 8.1 of the order dated 23 October 2013 be varied as follows:

   Until further order the wife do have the sole use and occupation of the former matrimonial home at [E Street, Suburb F] in the State of South Australia (“the former matrimonial home”) AND the wife shall be solely responsible for all mortgage repayments, rates and taxes, utilities and all other outgoings for the property.

5. Paragraph 5 seeks:

   5.Within 14 days the wife provide further details in relation to her legal fees incurred to date, as follows:-

   (a)An itemised list of counsel fees charged, including the following information:-

   (i)Date charged/paid

   (ii)Name of barrister

   (iii)Amount charged/paid

   (iv)Source of funds for payment

   (b)An itemised list of fees charged in relation to the wife’s application for an Intervention Order in the State Magistrate’s Court, including the following information:-

   (i)Solicitor’s fees charged/paid including date, amount and source of funds for payment

   (ii)Counsel fees charged/paid including name of barrister, date, amount and source of funds for payment

   (iii)Any other professional costs, including description of cost, date, amount and source of funds for payment

   (c)Details as to the fees charged by Edwards Marshall and clarification as to whether the fees disclosed to date include or exclude Edwards Marshall’s fees.

   (d)In relation to loans to the wife from family members (referred to at paragraph 11 of the wife’s affidavit filed 3 March 2015):-

   (i)In relation to the payments from “[F, C & E S] ([S] Family Account)”, “[F, C & E S]” and “[F S]”:-

   (A)who the loan is from;  and

   (B)the origin of the funds that person(s) used to loan to the wife.  For example, taxable income, drawings from a company (if so, specify which company), drawings from a Trust (if so, specify which Trust).

   (ii)In relation to the payments from the wife directly, the source of funds for the payment.  If the payment is from a family member, the origin of the funds that person(s) used to loan to the wife.  For example, taxable income, drawings from a company (if so, specify which company), drawings from a Trust (if so, specify which Trust).

   (e)In relation to the loans from family members:-

   (i)the interest payable by the wife (if any);  and

   (ii)the loan security provided by the wife (if any).

   (f)The account from which the following payment originated from:

   (i)14/02/2014 Westpac: D/Deposit ([Ms Hall]) $16,731.99

6. By Application in a Case filed by the wife on 27 June 2016 (document 264) the wife sought urgent orders and in particular paragraph 2:

   2.The husband be restrained and an injunction granted restraining the husband from taking any further action to pursue the removal of the Caveat lodged in the Lands Titles Registration Office in respect of the property situate at [E Street, Suburb F] in the State of South Australia being the whole of the land comprised in and described by Certificate of Title Register Book Volume … Folio ...

7. The injunction sought in paragraph 3 was an order made by consent. 

8. On that occasion I also made orders in terms of paragraph 4, save and except that the order provided for the husband to provide documents within seven days rather than within 24 hours.

9. The wife sought further orders in the Response to the Application in a Case which was filed on 9 August 2016 (document 269).  Paragraph 2, 3 and 4 of that Response are as follows:

   2.That the husband do within twenty-four (24) hours, instruct his solicitor to sign joint letters of instruction to [Mr GG] of [DD Valuers] and [Mr AR] of [PGS Valuers], failing which the wife’s solicitors shall be authorised to instruct both valuers, as if jointly instructed.

   3.That the husband do within seven (7) days, instruct his solicitors to sign a letter to a valuer to be agreed, or ordered, to value as joint single expert the [wholesale stock] in the husband’s business, failing which the wife’s solicitors shall be authorised to instruct such valuer, as if jointly instructed.

   4.That the husband do within fourteen (14) days, provide the wife particulars of:

   4.1His legal and valuation costs paid to date;

   4.2His outstanding legal and valuation costs to date;

   4.3His unbilled legal costs and disbursements to date;

   4.4In the case of costs paid, the source of those funds;  and

   4.5Estimated future costs to finally determine his applications for final orders before the Court.

10. The husband consented to the order in paragraph 4.

Hearing

1. At the hearing before me on 25 August 2016 the husband was represented by Mr Roder, SC (with Mr Jordan).  The wife was represented by Mr Livesey, QC (with Ms Kari).  Mr Roder, SC made submissions to the Court in relation to paragraph 2 of the orders sought in the interim application filed by the wife on 27 June 2016 (injunction in relation to removal of the caveat over the E Street, Suburb F (“the E Street property”)).  Thereafter, Mr Jordan continued the submissions on behalf of the husband. 

2. Mr Livesey, QC provided the Court with submissions on behalf of the wife.

3. Whilst the orders sought in paragraph 2 of the Application in a Case filed by the wife on 27 June 2016 were not the oldest of the applications for orders sought, at the request of counsel I heard submissions in relation to the caveat issue first.

4. Mr Jordan counsel and solicitor for the husband indicated that he had failed to obtain instructions from the husband in relation to paragraphs 2 and 3 of the Response to the Application in a Case filed by the wife on 9 August 2016.  The husband’s counsel indicated to the Court that it was not his client’s fault but entirely his omission.  He sought an adjournment of the issues in relation to valuations, maintaining that any delay would not be prejudicial.

5. The adjournment of these matters was opposed by counsel for the wife who indicated that the prejudice would be suffered due to the further delay in the completion of the valuation of the relevant assets which was being undertaken by Ms JJ.  It was also maintained that the husband had failed to provide information concerning some of the assets owned by entities which he controlled.

Injunction restraining the husband in relation to removal of caveat over the E Street Crescent property

1. The wife sought similar orders in her application filed on 16 January 2016 which were rejected by the Court by the orders made on 10 March 2016 for the reasons then given.  The wife now maintains that there are further factors which have arisen since the orders made on 10 March 2016 which would allow the Court to reconsider the injunction sought by the wife. 

2. The matters to which the wife’s counsel referred include that the wife’s application for an extension of time for the removal of caveat which was heard in the Supreme Court was dismissed but that a stay had been granted pending an appeal which has been lodged in the Supreme Court.  This Court was told that this appeal has been adjourned from 28 July 2016 to 3 September 2016 (sic). 

3. The wife maintains that the husband has not provided sufficient information to the wife’s solicitors concerning the proposed refinancing which is permitted by the injunction.  It is also maintained that the husband has a significant history of non-compliance with orders of this Court and has not disclosed relevant matters to the Court in the past.

4. The caveat which the wife placed on the E Street property some time ago was not challenged until recently.  If the caveat is removed then the wife will be unable to place any further caveat on the property.

5. It was further maintained that if the husband were restrained by this Court from continuing the proceedings then it was possible (and/or likely) that the Supreme Court would transfer the matter to this Court to be dealt with under the accrued jurisdiction.

6. On behalf of the husband it was maintained that there was no basis to say the Supreme Court would cross-vest the matter to this Court.  In the alternative it was maintained that the Family Court may order that the injunction of this Court could be registered over the Title.

7. The order which is sought by the wife is an order preventing the husband from continuing his participation in the Supreme Court proceedings which were commenced by the wife to maintain the caveat.

8. The E Street property has been the former matrimonial home in which the wife and children have resided for some time.  The property is registered in the name of PP Pty Ltd, a company of which the husband is the sole director and sole shareholder. 

9. For reasons which I delivered ex tempore on 10 March 2016 I declined to grant the injunction sought by the wife in relation to the caveat proceedings in the Supreme Court.  I further made an order as follows:

   8.The husband (whether in his personal capacity or in his capacity as a director or shareholder of [PP] Pty Ltd) is restrained and an injunction is granted restraining the husband from disposing of, encumbering or otherwise dealing with the former matrimonial home SAVE AND EXCEPT that with respect to any refinance of the borrowings currently held with the Commonwealth Bank of Australia the husband shall be permitted to refinance such borrowings PROVIDED HOWEVER that:

   8.1.the level of borrowings secured against the former matrimonial home does not exceed the sum of $1.5 million;  and

   8.2.the former matrimonial home shall not be offered as “cross linked security” for any borrowings of the husband or any entity or trust in which the husband has an interest or control.

10. I accept that there have been changes and new facts which have occurred since 10 March 2016.  Whilst the wife has not been successful in the caveat proceedings in the Supreme Court and may not be successful in her appeal she will still have the benefit of the injunction of this Court.

11. On behalf of the wife it is maintained that the husband may not comply with orders of this Court.  She recites the alleged history of the husband’s non-compliance, and in particular his deliberate non-disclosure of significant items.

12. As previously indicated I accept that pending the disposal of these property settlement proceedings on a final basis it is appropriate for the Court to make orders which protect the wife’s use and occupation of the former matrimonial home at the E Street property.  It is also proper to ensure that the former matrimonial home remains an asset in relation to which this Court may make final property settlement orders, if appropriate, in due course.

13. Taking into account however the orders that were made on 10 March 2016 and the failure of the husband to provide appropriate documentation and information concerning any proposed refinancing, it will be appropriate to vary the injunction made in paragraph 8 of the order of 10 March 2016 to ensure that the wife is consulted about, and consents to, any refinance.  An injunction in those terms should be registered over the title of the E Street property.

14. The order will therefore be that paragraph 8 of the orders of 10 March 2016 is discharged and that in lieu thereof the following apply, namely,

    a)The husband (whether in his personal capacity or in his capacity as a director or shareholder of PP Pty Ltd) is restrained and an injunction is granted restraining the husband from disposing of, encumbering or otherwise dealing with the former matrimonial home at E Street, Suburb F in the State of South Australia SAVE AND EXCEPT with the prior written consent of the wife.

    b)The Registrar-General of the Lands Titles Office is requested to forthwith register this order on the Title of the property at E Street, Suburb F in the State of South Australia being the whole of the land comprised in and described by Certificate of Title Register Book Volume … Folio ...

Variation of sole use and occupation order and payment of mortgage and other outgoings

1. By his Application in a Case filed on 15 April 2016 the husband sought orders that paragraph 8.1 of the order made on 23 October 2013 be varied such that the wife have sole use and occupation of the former matrimonial home but that she be responsible for all mortgage repayments, rates and taxes, utilities and all other outgoings for the property.

2. For reasons which I gave ex tempore on 23 October 2013 it was ordered that during the period of the adjournment (my emphasis added) the wife have sole use and occupation of the former matrimonial home and that the husband continue to pay all outgoings in relation to the same, including but not limited to any mortgage payments, rates, taxes and utilities.  That order was made on the clear understanding that the husband, as the sole director and sole shareholder of the company which owned the property, controlled the significant assets. 

3. The adjourned matter was heard before me again on 9 December 2013.  I made further orders on 10 December 2013 which continued paragraphs 8.1 and 8.3 of the October 2013 order pending final determination of the property settlement and spouse maintenance proceedings.  I further ordered that the husband pay spouse maintenance to the wife in the sum of $10,833 per calendar month. 

4. By Application in a Case filed on 7 March 2014 the husband sought various orders including orders discharging the order I made on 10 December 2013 in relation to the wife’s sole use and occupation of the E Street property and sought the dismissal of the orders I made for spouse maintenance.  For the reasons I delivered on 17 June 2014 I dismissed the husband’s Application in a Case filed on 7 March 2014 and further made orders restraining the husband from selling, or attempting to sell, the former matrimonial home and to “forthwith remove the home from being advertised for sale through Ray White or any other agency”.  This was as a result of evidence provided by the wife that, notwithstanding the previous orders I had made by way of injunction, the husband had taken steps to place the property on the market for sale.

5. Subsequently the order for the monthly spouse maintenance was set aside after the appeal to the Full Court of the Family Court of Australia (which was upheld by the High Court of Australia).  The orders concerning the wife’s use and occupation of the former matrimonial home and the husband’s obligation to pay the outgoings remain in place.

6. What is significant now is the affidavit material filed by the wife on 9 August 2016 setting out the current financial circumstances of the wife.  This includes the annexures which indicate that the V Group controlled by the wife’s brothers have refused to make any voluntary payment to the wife, notwithstanding the wishes expressed by the wife’s late father in his will.

7. The wife is no longer receiving any monthly maintenance from the husband and has significantly less “financial resources”.  She has incurred substantial debts since the orders were made and continued in 2013.

8. The husband is not seeking an order that the wife vacate the former matrimonial home, rather he is seeking a variation to the orders made which provide for her to have sole use and occupation of the former matrimonial home.  He seeks the discharge of the order requiring the husband to continue to pay all of the outgoings in relation to the former matrimonial home, including but not limited, to any mortgage payments, rates, taxes and utilities.

1. An affidavit filed by the husband’s solicitor at the time of the filing of the Application in a Case on 15 April 2016 (affidavit Ms CD filed on 15 April 2016) contains the heading “Discharge of order in relation to terms of sole use and occupation (spouse maintenance)” and states at paragraph 15:

   In respect to paragraphs 3, 4 and 5 of the orders sought by my client, my client relies on his earlier affidavit filed.

2. The affidavit is not actually identified.  When perusing the previous affidavits filed by the husband I assume that the solicitor is referring to the affidavit filed on 8 March 2016 in which the husband refers at paragraphs 24, 25, 26 and 27 to the outgoings for the E Street property.  Those paragraphs are as follows:

   24.Paragraph 8.1 of the order dated 23 October 2013 provides that “the wife do have the sole use and occupation of the former matrimonial home at [E Street, Suburb F] in the State of South Australia (“the former matrimonial home”) AND that the husband continue to pay all outgoings in relation to the same including but not limited to any mortgage payments, rates, taxes and utilities”.

   25.At the time that order was made, the wife had not provided any details in relation to her later father’s estate and her entitlements under the Will.  Since then, a copy of the Will and other documents have been produced, which indicate that the wife is entitled to a gift of $16.5M and an annual payment of $150,000 (CPS indexed).

   26.I seek that the wife be solely responsible for the mortgage repayments, rates and taxes, utilities and all other outgoings for the property, as she resides in the property and has significant entitlements under her late father’s estate.

   27.I seek that paragraph 8.1 of the order dated 23 October 2013 be varied as follows:-

   Until further order the wife do have the sole use and occupation of the former matrimonial home at [E Street, Suburb F] in the State of South Australia (“the former matrimonial home”) AND the wife shall be solely responsible for all mortgage repayments, rates and taxes, utilities and all other outgoings for the property.

3. The material now produced by the wife annexed to her recent affidavit clearly indicates that the executor of her late father’s estate and her brothers who control the V Group will not make any payments to the wife.

4. On 9 August 2016 the wife filed a Financial Statement which indicated that her income from her part-time employment as a health professional was an estimated $223 per week.  The maintenance/child support she receives for the children was on average $300 per week.  The Financial Statement also referred to the order for the husband to pay all outgoings in respect of the former matrimonial home.  This was referred to as “NK” (not known).  Her expenditure set out in that Financial Statement totalled an estimated $4,809 per week.

5. The present financial circumstances of the parties require the Court to also consider the wife’s ongoing sole care of the two infant children of the marriage.

6. Apart from the challenge by the husband to the wife’s alleged financial resources, the husband did not provide any further evidence in relation to his assets, liabilities, income or expenses.  His last Financial Statement was filed in this Court on 27 April 2015.

7. It was not maintained on behalf of the husband that he could not afford the payments, but it was asserted that the wife’s financial circumstances had changed.

8. The wife’s financial circumstances have not improved.  The financial resources to which the husband refers (the wife’s entitlement or financial resource arising from her late father’s estate) is now not available to the wife.

9. The wife’s updated Financial Statement also indicates substantial borrowings from her brother to pay for legal fees and living expenses and the loan taken out by the wife from BankSA (guaranteed by her mother) for the payment of legal fees.

10. On an interim basis I am satisfied that the wife has maintained a need for the payment of the mortgage and other outgoings in relation to the former matrimonial home.

11. I therefore dismiss the application of the husband seeking a discharge of the order in paragraph 8.1 of the order of 23 October 2013 which was continued on 10 December 2013.

Orders sought in relation to details of legal fees incurred

1. Paragraph 5 of the Application in a Case filed by the husband on 15 April 2016 seeks particular orders in relation to itemised details of counsel fees paid, itemised list of fees charged in relation to the intervention order in relation to the Magistrates Court, details in relation to fees charged by Edwards Marshall and particulars in relation to loans, including origin of the funds that the other person used to loan to the wife.  Further orders are sought in relation to the interest payable and the security provided for any loans.  (See particulars of paragraph 5 of the application in document 249).

2. As indicated above the affidavit filed at the same time as this application refers to paragraph 5 of the orders sought and refers merely to the husband’s “earlier affidavit filed”.

3. Again I assume that the reference is to paragraphs 35 to 38 inclusive of the affidavit filed by the husband on 8 March 2016 (document 236) under the heading “the wife’s legal fees”.  (Paragraph 38 refers to the orders sought in paragraph 6 of his Response to the Application in a Case filed on that date.  There is no such document filed with the Court).

4. The affidavit filed by the wife on 9 August 2016 (document 270) sets out her evidence in reply to the issue of details concerning legal costs and annexures to that affidavit.  Several documents are attached including annexure “AH7” which is a letter from the wife’s solicitors to the husband’s solicitors dated 18 April 2016 replying to the letter of 22 February 2016.

5. I am satisfied that the information provided by the wife’s solicitors is sufficient compliance with the rules and the intention of the rules to provide relevant information in relation to the legal costs and the source of funds to pay those costs.

6. The order sought by the husband in paragraph 5 of the Application in a Case filed on 15 April 2016 is therefore dismissed.

Instructions to valuers

1. Orders sought by the wife in the Response to the Application in a Case filed on 9 August 2016 (paragraphs 2 and 3) refers to joint letters of instruction to valuers and specific orders in relation to single expert valuation of wholesale stock.

2. In the Response to the Application in a Case filed on 9 August 2016, the wife sought orders which provided that if the husband did not, within 24 hours, instruct his solicitors to sign the joint letter of instruction to valuers, the wife’s solicitors could be authorised to instruct the valuers as if jointly instructed. 

3. In paragraph 3 of that Response to the Application in a Case the wife sought orders that the husband do, within seven days, instruct his solicitor to sign the letter to the valuer to be agreed or ordered to value as joint single expert the stock owned by the husband’s business, failing which the wife’s solicitors were to be authorised to instruct such valuer as if jointly instructed.

4. The solicitor for the husband, Mr Jordan, filed an affidavit which indicated that this Response to the Application in a Case and supporting affidavit material were received by him on 10 August 2016.  His affidavit states at paragraph 22 and 23:

   22.My client is currently overseas.  He has been overseas since 6 August 2016 and returns in early October 2016.

   23.I overlooked providing a copy of the response to my client and I do not have instructions in relation to the additional unrelated orders sought by the wife.

5. This affidavit was signed on 24 August 2016.  There is no explanation for the failure to, or any attempt to, obtain instructions by telephone or other electronic means.

6. The solicitor sought that the Court adjourn the hearing in relation to paragraphs 2 and 3 to enable him to obtain instructions.

7. On behalf of the husband it was maintained that there would be no prejudice to the wife by the delay as the matter has not yet been allocated a trial date. 

8. On behalf of the wife it was maintained that the disadvantage would arise from the resulting delay in Ms JJ completing her valuation reports.  Ms JJ asked for the valuations of the real estate to be completed. 

9. In considering the adjournment the Court needs to take into account the procedural fairness to both parties.

10. Annexed to the affidavit of the wife filed on 9 August 2016 is a considerable amount of correspondence between the solicitors and correspondence from the forensic accountant, Ms JJ, (agreed single expert appointed to value the entities owned or controlled by the husband).  In particular, there is a letter from Ms JJ dated 28 July 2016 addressed to both lawyers for the husband and wife which refers to the need to obtain values or agreed values for more real estate and the large amount of wholesale stock. 

11. The wife does not accept the husband’s estimate of the value of the wholesale stock.  She proposes that valuers be appointed, annexing to the affidavit the Curriculum Vitae for FG Valuers.

12. The affidavit also sets out the correspondence between the solicitors concerning the need for further valuations of additional DE Town land, which included a letter from the wife’s solicitors to the husband’s solicitors of 19 July 2016 to which no reply had been received.

13. Taking into account the history of the correspondence between the parties, the requirement of the joint single expert, Ms JJ to receive valuations of these items and the qualifications of the proposed valuers, I am satisfied that orders in terms similar to those sought by the wife (to arrange for the valuations of the land and wholesale stocks) are appropriate.

14. Whilst the husband may have left Australia before the solicitor was served with the Response and affidavit, there is limited explanation as to the failure to respond to correspondence before the husband left Australia.

15. To delay the valuations until after the return of the husband in “early October 2016” (paragraph 22 of the husband’s solicitor’s affidavit filed on 24 August 2016) would cause a considerable delay in the completion of those valuations and therefore a significant delay in the completion of Ms JJ’s valuation which is essential to the progress of this matter (including but not limited to, sensible negotiations to resolve outstanding financial matters).

16. The wife is seeking orders that provide for single expert valuations in relation to the land owned or controlled by the husband or the Hall Group at DE Town to be carried out by Mr GG of DD Valuers, the plant and equipment at EF Town and DE Town to be valued by Mr AR at PGS Valuers and the wholesale stock to be valued by FG Valuers.

17. The solicitor for the husband did not indicate that communication could not take place between the husband and his solicitor whilst the husband is overseas.  I therefore propose to make orders allowing the husband to give appropriate instructions to his solicitor but providing for that to take place in the time that is practicable for the completion of Ms JJ’s report.

18. I will allow the husband 10 days to provide instructions to his solicitors and failing any agreement within that time the wife’s solicitors are authorised to instruct the valuers as if they were jointly instructed.

19. The outstanding interim applications and responses are therefore dismissed.  The ongoing disputes between the parties concerning their compliance with orders and their financial circumstances makes it inappropriate to determine the issue of costs at this stage.  The costs of these applications are reserved to the trial Judge.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 6 September 2016.

Associate: 

Date:  6 September 2016