HALL & HALL

[2015] FamCA 83

FAMILY COURT OF AUSTRALIA

HALL & HALL [2015] FamCA 83

FAMILY LAW – PROPERTY – Valuation – appointment of single expert – where parties unable to agree upon single experts to undertake valuations of residential and commercial real property and business interests – where husband seeks quotations of valuations be jointly obtained before valuations - utility in undertaking valuations when appeals outstanding - orders made appointing single experts to undertake valuations in new financial year.

Family Law Act 1965 (Cth) s 97
Family Law Rules 2004 (Cth) r 1.08, 15.45, 15.46, 15.47

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

APPLICANT: Ms Hall

RESPONDENT: Mr Hall

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 10 February 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 10 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ackman QC

SOLICITOR FOR THE APPLICANT: Barnes Brinsley Shaw

COUNSEL FOR THE RESPONDENT: Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT:	Jordan & Fowler
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Fuda
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of SA

Orders

BY CONSENT IT IS ORDERED THAT:

1. Until further order and in the absence of any undertaking given to the Court the parties are restrained and an injunction is granted restraining them from causing or permitting the children of the marriage K born on … 2003 and D born on … 2005 or either of them from attending upon any psychologist, family therapist, or counsellor SAVE AND EXCEPT for Dr A and Mr CB without leave of the Court.

IT IS FURTHER ORDERED THAT:

1. The directions hearing before the Registrar at 2.30 pm today is vacated and to be relisted at a date to be advised after the solicitors of the husband and wife confirm in writing that the single expert valuations referred to in the orders today have been completed.

2. To facilitate the valuations by single expert valuers:

   (a)within twenty-one [21] days each of the husband and the wife file and serve an affidavit to which is annexed:

   (i)all companies, partnerships and trusts in which they are directors, shareholders, partners, appointors, trustees, beneficiaries or otherwise entitled by way of claim, right or unpaid loan and in each case specifying their interest or entitlement;

   (ii)all real property of which they are the registered proprietor or one of the registered proprietors or entitled to be registered or in which they have an equitable right;

   (iii)all real property owned by any entity described in sub-paragraph (a)(i) above;

   (iv)all or any businesses carried on by them personally;

   (v)all real and personal property to which they are entitled from any deceased estate or family trust or agreement.

   (b)within twenty-one [21] days each party file and serve an updated financial statement;

   (c)within sixty [60] days the husband and the wife do exchange the financial statements for the financial year ended 30 June 2014 for each and every entity or business referred to in sub-paragraph (a) above.

3. The parties do exchange financial statements for the financial year ended 30 June 2015 for each and every entity or business referred to in paragraph 3(a) above on or before 30 September 2015.

4. Within seven [7] days from today the husband do file and serve a schedule of the outgoings paid by him since 23 October 2013 in respect of the property situated at E Street, Suburb F in the State of South Australia.

5. Within twenty-one [21] days each party do file and serve particulars of:

   (a)their legal and valuation costs paid to date;

   (b)their outstanding legal and valuation costs to date;

   (c)their unbilled legal costs to date;

   (d)estimated future costs to finally determine their applications for final orders before the Court;  and

   (e)in the case of costs paid the source of the funds.

6. Within twenty-one [21] days the wife do provide to the husband the documents set out in the letter from Jordan & Fowler to BBS Lawyers dated 5 February 2015 (refer annexure “1” attached hereto).

7. On or before 7 August 2015 the parties jointly instruct as singe expert valuers the following:

   (a)DD Valuers and in particular Mr EE, Mr FF and Mr GG to value commercial properties in which the parties and/or any entity and/or trust in which they have an interest and specifically those properties referred to in the quotation obtained from DD Valuers dated 6 February 2015 being Annexure “A” to the affidavit of Mr R sworn 10 February 2015 and tendered this day (refer annexure “2” attached hereto);

   (b)Mr HH to value the residential properties owned by either of the parties and/or any entity and/or trust in which they have an interest being the following:

   (i)AA and BB W Street, Suburb F in the State of South Australia;

   (ii)E Street, Suburb F in the State of South Australia;

   (iii)II Street, Suburb L in the State of South Australia.

8. On or before 7 October 2015 the parties jointly instruct as single expert valuer Ms JJ to value any entity and/or trust and/or business in which either party has an interest in (refer annexure “3” attached hereto).

9. The costs of the preparation of the experts’ reports will be initially costs to be paid equally by the parties with a further adjustment if necessary to be made on the final determination of property settlement issues between the parties.

10. The wife shall use her best endeavours to obtain from The V Corporation the financial statements for the financial years ending 30 June 2014 and 30 June 2015 for those entities and/or trusts referred to in paragraph 9 herein in which the wife has an interest.

11. Within twenty-one [21] days the husband file and serve further and better discovery on oath as per correspondence between BBS Lawyers and Kennedy Partners Lawyers dated 3 October 2014 and annexed to the affidavit of Mr R dated 5 December 2014 (refer annexure “4” attached hereto).

12. Each party bear their own costs of and incidental to the applications dealt with today and the hearing today.

13. The husband’s Applications in a Case filed on 16 September 2014 and 3 October 2014 are dismissed and removed from the active pending cases list.

14. The wife’s Application in a Case filed on 5 December 2014 is dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3671 of 2013

Ms Hall

Applicant

And

Mr Hall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the matters before me today, I have dealt with the children’s issues, and the applications which deal with those issues are therefore dismissed.

2. In relation to the other matters before me which relate to financial matters, I commence with the Application in a Case which was filed on 5 December 2014 in which the wife sought certain orders in relation to single experts being appointed to value certain entities and certain properties and for discovery.  The application also sought an order that the husband pay the costs in the first instance of all the valuers on the basis that the wife’s contribution would be determined at trial. 

3. That matter was listed before me on 15 December 2014 and adjourned.  The material that is now before me today includes the affidavit filed by the wife in support of that Application in a Case, being the affidavit of her solicitor, Mr R, to which are annexed various documents. 

4. I have also received, out of time, the response filed by the husband received by me today setting out the orders which were sought.  That provided that the orders sought by the wife in paragraphs 1, 2, 3 and 5 be adjourned to a date to be fixed by the Court and that paragraph 7 be dismissed. 

5. It then sought that during the period of the adjournment the parties provide to each other lists of companies and entities and real estate, and various other matters set out in paragraph 3, updated Financial Statements, and at paragraph 3(c):

   Within 42 days the parties do jointly obtain valuation or updated valuation quotations of their interests referred to in subparagraph (a) above from the following experts …

6. It then lists six experts.

7. After considerable discussion and standing the matter down several times, it became apparent that what was clearly being asked for was only updated valuation quotations and that the quotations for the valuations by six of those people would be for some of the matters referred to in 3(a) for some of the valuers and some others for the other of the valuers.  Namely, there were some valuers who would just supply real estate valuation quotations and others would relate to quotations for valuations of interests in companies, partnerships or trusts, or similar entities.

8. The husband’s response also sought orders for the exchange of updated financial information as at 30 June 2014 concerning the various entities within 60 days of the order and for the parties to also supply financial statements for the entities for the year ended 30 June 2015:

   …as and when the Court shall determine.

9. Subsequently the Court has received a draft minute of order with dotted blanks on it.  I was then told that that date would be “on or before 30 September 2015”.  The husband also sought orders that he have 21 days to file and serve a schedule of the outgoings paid by him since 23 October 2013 in respect to the property at Suburb F.  It also sought that during the adjournment and within 21 days the parties exchange and file and serve detailed orders in relation to costs.  There was also a request that:

   During the period of the adjournment and within 21 days the wife to provide to the husband the documents set out in the letter from Jordan & Fowler to BBS Lawyers dated 5 February 2015.

10. Paragraph 8 related to children’s issues.  I dealt with that earlier this morning.

11. I then heard detailed submissions in relation to the various orders sought and stood the matter down for the parties to attempt to come to some sensible agreement in relation to the procedural orders that can be made to prepare this matter for final determination. 

12. This matter has to be seen in the context of the outstanding appeals.  Orders were made by me in relation to interim spouse maintenance to be paid by the husband to the wife.  They are the subject of appeal.  I am told from the bar table by both counsel for the wife and counsel for the husband that the husband has not complied with the orders for spouse maintenance, notwithstanding that there has been no stay of the orders.  The explanation appears to be that he is making some payments in relation to child support and making other payments that might have been considered part of the spouse maintenance order, but he is not complying with the spouse maintenance order.

13. There is also an appeal outstanding from an order which I made in relation to a subpoena in which the wife’s family were ordered to supply a copy of the will of the wife’s late father who died (my recollection) in 2009.  At the time I heard the proceedings, there had been no probate or letters of administration of the estate of the wife’s late father granted even though many years had expired since his death. 

14. I am now told, again from the bar table, that limited probate has been granted as to part of the estate.  The appeal proceeds, because the limited probate did not have annexed to it the full copy of the will of the wife’s late father. 

15. The importance of that issue relates to whether the Court will have available to it, at the time of the final determination of property settlement proceedings, all of the relevant information concerning the wife’s assets, liabilities and financial resources. Whilst that, in itself, may cause some limitations on the timing of preparing the matter for final hearing, it does not relate to all the other valuations which could be carried out or could at least have steps taken to be carried out in relation to valuations of real estate and the numerous other entities in which the parties have disclosed interests. 

16. This Court is a Superior Court of Record. The Family Law Act 1975 (Cth) (“the Act”) provides in s 97:

    In the proceedings under this Act the Court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.

17. That is part of the Act. It is a requirement to proceed with an endeavour to ensure that the proceedings are not protracted. I take into account the delay caused by other parties appealing decisions which relate to procedural matters such as subpoenas. The main purpose of the Family Law Rules 2004 (Cth) (“the Rules”) make it clear that it is necessary to ensure that the proceedings are resolved in a just and timely manner at a cost to the parties and to the Court that is reasonable in the circumstances of the case. The Rules can be varied. But in this particular instance it is necessary to take into account that it is the responsibility of the parties and the lawyers, in achieving the main purpose, to comply with rule 1.08 which includes matters such as ensuring readiness for Court events, complying with time limits and assisting the just, timely and cost effective disposal of cases.

18. In this particular matter, the orders made on 17 September 2014 provided for the parties to provide a list of experts and particulars of the quotation for costs of the experts by early October 2014.  Neither party complied with that order.  There has been limited explanation, when sought from the bench, as to why the parties chose to ignore that Court order.  Certainly there is a concern by the Court about the parties’ failure to attend to compliance with the rules ensuring complying with time limits and assisting in the just, timely and cost effective disposal of this case. 

19. The Rules clearly make those directions. It has been made quite clear by this Court, in many matters, that the principles in the High Court judgment in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, which emphasise that minimum delay and expense is essential to the just resolution of proceedings and that such compliance affects not only the parties but the Court and other litigants, apply to proceedings in this Court.

20. This matter was set for a 9.15 am hearing for directions of a type which would often, and quite normally, be dealt with by a Registrar of this Court.  It will be after 1.15 pm before I complete the reasons in this matter.  Therefore I have to take into account that many of these matters are matters which should be attended to by following the rules without the necessity for argument before a Court, but the parties in these proceedings are unable to agree on simple straightforward procedural matters for various reasons.

21. The rules set out in rules 15.45, 15.46 and 15.47 (in relation to single experts) the material which the Court needs to take into account.  It seems from the information available to me, although it is limited, that the single experts proposed are consenting to their appointments as single experts, so the provision of rule 15.45(3) can be met. 

22. The question of whether the single expert decision should be adjourned to enable further quotes to be obtained is an issue which I consider on two levels.  Firstly, it would in many circumstances be appropriate for the quotations to be obtained after the persons providing the quotations have been supplied with the appropriate information.  However, in relation to this case the question of costs can be determined and adjusted in due course when the matter proceeds before the Court.  That is not the only determining factor.  The proposal therefore that the matter be adjourned again while quotations are obtained from various experts would cause a further delay and further costs.  This is not warranted, taking into account the failure of the parties to comply with orders made by this Court in September 2014 and taking into account the extensive information which has now been made available to the parties by various persons proposed.

23. One of the other issues is the timing of the valuations and whether they should be obtained now or at a later time.  The wife is proposing that the instructions be given to the single experts within fourteen days from today.  That would imply that the valuations would then be obtained promptly.  That would, I assume, include that the valuations of the various entities would be limited to information which is available relating to the financial year ended 30 June 2014 and clearly not 30 June 2015.

24. Is it clear, however, that any final hearing concerning the property settlement proceedings will not be able to be listed until after the Full Court has delivered its judgment, until after appropriate directions have been made to finalise the case management issues and prepare the matter for trial.  It is therefore in fact, highly likely that the matter will not proceed for trial until after the end of the financial year 30 June 2015.  There would, therefore, be a considerable risk that the valuations of the entities proposed to be valued by both parties, would have to be reconsidered or at least extra cost incurred in updating them. 

25. I therefore consider that it is not appropriate, even though the rules refer to timely disposition of the matter, to risk the extra costs of the further updated valuations and argument concerning the further updated valuations having to take place before the matter can be prepared for trial. 

26. I will therefore be proposing to make orders which would provide for the financial statements to be provided to enable the valuations of the entities to be obtained, taking into account the financial year ended 30 June 2015. 

27. I take into account comments made from the bar table that I can take judicial notice of the fact that many entities do not provide financial statements for the end of a financial year for some months after that has occurred, but in these circumstances, and taking into account the involvement of the parties in the various entities, it would not be unreasonable to expect them to request the same and to press for them to be obtained in order that all of the entities, as well as the parties to these proceedings, can have the matters concluded and their lives allowed to proceed without further interference from litigation in this Court. 

28. It is, therefore, appropriate also to consider that the valuations of the real estate should not be obtained immediately and then have argument in relation to having them revalued some six to nine months later, if that is the delay in having the matter listed for final hearing. 

29. Issues also relate to the selection of the persons to carry out the valuations.  The wife proposes Ms JJ to carry out the valuation of the entities and various persons to carry out the valuations of real estate.  The husband is seeking that there be further quotations obtained.  There is no specific information available to me which would indicate that the persons proposed by the wife to carry out the valuations are not appropriate, qualified and able to carry out the valuations for an appropriate fee.  Nor is there any information which suggests that the person should be restricted or is not independent enough to carry out the expert valuations required.

30. Taking into account, therefore, the need to reduce the litigation between these parties and the Court’s capacity to make a finding in relation to valuations, I am proposing to make the orders in terms similar to those proposed by the wife for the experts named and proposed by the wife to carry out those valuations, however, with different timings and with different conditions.  The orders for the valuations to be carried out would be appropriate to be carried out after the parties have complied with some of the orders suggested by the husband’s solicitors, including those which require the parties to exchange updated lists of information concerning the entities in which they have an interest.  That is particularly so because of what I am told from the bar table relates to the grant of limited probate of the estate of the wife’s late father and of the divorce of the parties, which has now occurred, which may have some impact upon the entitlement of the wife in relation to her financial circumstances. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 February 2015.

Associate: 

Date:  19 February 2015