HUXLEY & MORRIS
[2016] FamCA 711
•28 July 2016
FAMILY COURT OF AUSTRALIA
| HUXLEY & MORRIS | [2016] FamCA 711 |
| FAMILY LAW – PROPERTY SETTLEMENT – De facto relationship – Where the Court is satisfied that the jurisdictional requirements under Part VIIIAB of the Family Law Act 1975 (Cth) have been met – Where the Court finds it is just and equitable that there be orders for an alteration of property interests – Where the de facto husband brought into the relationship a farming enterprise which he has since sustained – Where the Court finds the parties’ contributions should be assessed at seventy-five per cent to the de facto husband and twenty-five per cent to the de facto wife – Where the Court finds section 90SF(3) factors favour an adjustment of five per cent to the de facto wife due to her primary responsibility for the children – Parties to file and serve an updated Minute of Proposed Orders to reflect the Court’s determination. FAMILY LAW – PROPERTY – Value of property – Expert evidence – Competing valuations between the Court appointed single expert and two adversarial experts in relation to four rural properties – Where an adversarial expert’s reports were excluded due to the expert’s unclear reasoning process and reliance upon unstated facts – Whether there is an effect on the value of a property as a result of a life interest – Whether there is an effect on the value of a farming property as a result of livestock being affected by disease –Where the Court accepts the single expert’s valuations in respect to all of the properties in dispute. |
| Family Law Act 1975 (Cth) ss 90SB, 90SF, 90SK, 90SM |
| Dasreef Pty Ltd v Hawcher (2011) 243 CLR 588 Mallet v Mallet (1984) 156 CLR 605 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Huxley |
| RESPONDENT: | Mr Morris |
| FILE NUMBER: | PAC | 5019 | of | 2011 |
| DATE DELIVERED: | 28 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 17-20 August 2015; 24-25 November 2015; and 20 January 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers |
Orders
The parties are to prepare a Minute of Orders or two Minutes of Orders as the case may be.
Leave is granted to the parties to relist the matter by arrangement with my Associate if need be.
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 Huxley & Morris 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 SYDNEY |
FILE NUMBER: PAC 5019 of 2011
| Ms Huxley |
Applicant
And
| Mr Morris |
Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant, Ms Huxley, and the respondent, Mr Morris, were parties to a de facto relationship which commenced in May 2002. For convenience, henceforth I will refer to the parties as the husband and the wife. In these proceedings the wife sought orders for alteration of property interests and child support departure. The husband sought different orders for alteration of property interests and opposed the wife’s child support departure application
The parties met and commenced a relationship during 2000. They began to live together in May 2002 on the husband’s farm at Town A on the South Coast of New South Wales. At an earlier stage in the proceedings there was a dispute as to whether the de facto relationship subsisted beyond 1 March 2009, with the husband contending that separation occurred prior to that date. On 7 June 2012 a declaration was made, by consent, to the effect that a de facto relationship existed between the parties from May 2002 until January 2010.
There are two children of the parties’ relationship:
·R born in 2003 (13); and
·G born in 2006 (10).
Both children live with the wife in Sydney and spend time with the husband on every third weekend and during school holidays. The husband pays Child Support as assessed, by the Agency, with the current amount being a total of $840 per month.
By way of child support departure order, the wife sought that the husband pay $500 per week per child; all private school fees and expenses; private health insurance and all gap medical costs. The husband opposed this application and contended that the wife should apply to the Child Support Agency for an administrative review of the current assessment.
The orders sought by the wife in a Minute submitted on 26 November 2015 may be summarised as follows:
1. The husband pay to her a sum of $2,600,000 within four months.
2.In default of such payment, the husband cause the sale of the rural property known as “LL” and that the wife receive the sum of $2,600,000 plus interest, with any balance to be paid to the husband.
The orders sought by the husband may be summarised as follows:
1.That the husband pay to the wife the sum of $800,000 in accordance with the following schedule:
a. $300,000 within four months;
b. $150,000 within sixteen months;
c. $150,000 within twenty-eight months;
d. $200,000 within forty months.
2.That the husband pay interest on any monies outstanding, commencing on a date twelve months from the date of the orders.
3.That the husband is restrained from selling or further encumbering any real property registered in his name or that of the MM Trust save and except to facilitate compliance with these orders and with the written consent of the wife.
Background
The husband was born in 1963 and is presently 53 years of age. He has not re-partnered and continues to live on the dairy farm at Town A.
The wife was born in 1967 and is currently 49 years old. She and the children live at Suburb B in a home owned by Mr Y, with whom the wife has been in a relationship. An issue in the proceedings was whether the wife and Mr Y separated on 15 January 2015, as they asserted, or in fact maintain an ongoing relationship. Mr Y has provided substantial financial benefits to the wife and the children since at least early 2011. There was a dispute as to whether these advances were gifts, loans or a combination thereof.
The husband’s family first established a farming operation at Town A in 1859. The original property, known as “LL”, has been owned successively by five generations of the Morris family.
On 25 May 1980 the husband’s parents, Mr M and Mrs M, incorporated the company LL Pty Ltd. Initially Mr and Mrs M were the sole directors and shareholders.
The husband became a director of this company when he began to work at LL in 1992. The LL property consists of two parcels of land, which are known as E1 and E2. The husband assumed sole management of the farming operation upon the retirement of his father in 1994.
In November 1993 the husband’s parents purchased a property known as “SS”, which is adjacent to “LL”. They acquired the property as joint tenants for a price of $300,000.
In 1997 the husband and his parents reached an agreement as to future ownership of the farming properties. Consequently, the husband incorporated a company known as MM Nominees Pty Ltd, of which he is the sole director and shareholder. This company is the trustee of the MM Trust (“the Trust”), through which the husband operates the farming enterprise.
In November 1997 the Trust purchased a 45 per cent interest in a property known as “PP”. The remaining 55 per cent share was acquired by a
Mr and Mrs Z. The purchase price was $560,000, which came substantially from a loan advanced by the Colonial State Bank.
The PP property was subdivided into two lots in 1999. The Trust became the sole proprietor of the larger parcel, which retained the name “PP”. The husband caused a home to be constructed on this parcel at a cost of $250,000.
On 19 February 2001 the husband’s father executed a will, which reflected the terms of the 1997 succession agreement. On 13 December 2002 Mr M executed a second will, by which he bequeathed the properties LL E2 and SS to his wife rather than the husband. The husband was unaware of this change in his father’s testamentary intentions.
In October 2002 the husband’s father transferred to him the property LL E1, for a recorded consideration of $1,950,000. There was no evidence that the husband made any payment to his father at the time of the transfer of this property or subsequently.
Pursuant to the 1997 succession agreement, the Trust provided the home at PP to the husband’s parents for their occupation. The husband took out a mortgage of $100,000 to fund renovations to the home at LL. He also arranged for the Trust to provide income from the farming operation to his parents.
The husband’s father died in late 2004 and probate of his estate was granted in February 2005. In November 2006 the husband and the Trust commenced litigation in the Supreme Court of New South Wales, in relation to the estate of the husband’s father. This litigation was settled at a mediation, following which the parties entered into a deed in 2007.
The provisions of this deed may be summarised as follows:
1.The husband’s mother, Mrs M (“Mrs M”), acquired a right to reside in the home at PP for her lifetime or until she gave written notice to the husband of her intention to vacate the premises.
2.The husband was obliged to maintain the PP home and pay rates, insurance, electricity costs, all maintenance and repairs and capital works as approved by him.
3.Mrs M transferred to the husband the SS property, subject to a mortgage back to her of $350,000. This mortgage carried interest at an annual rate of $36,000, which the husband pays to Mrs M by instalments of $3,000 per month.
4.Mrs M transferred the property LL E2 to the husband for a consideration of $950,000, which was to be paid by 8 August 2009. She took a mortgage of $950,000 secured on the title to the LL E2 property.
In 2009 the husband sold D shares for $778,000. He paid a sum of $700,000 from the sale proceeds to his mother, in reduction of the mortgage on the LL E2 property. The balance of $250,000 was sourced from National Australia Bank credit facilities.
These borrowings of $250,000 from the National Australia Bank were subsumed into an overdraft and a term loan of $450,000. The husband applied part of this sum of $450,000 to meet operating costs of the farming enterprise in drought conditions. Some of this money was used to meet expenses of the wife and children, after they commenced to live in Sydney from Monday to Friday at the beginning of 2009.
When the parties’ daughter R began to attend C School in January 2009, the parties rented an apartment in Sydney. The wife and the children returned to the farm on most weekends and the husband sometimes travelled to Sydney between Monday and Friday.
During 2010 the wife commenced a relationship with Mr Y. As noted, there was a dispute in the proceedings as to whether the wife and Mr Y have separated or are engaged in a current and ongoing relationship. There was also a dispute as to the time of commencement of this relationship.
The husband paid the children’s private school fees until 2011. These fees thereafter have been met by Mr Y. There was a dispute as to whether school fees paid by Mr Y constitute a debt owed to him by the wife.
As noted, the parties consented to a declaration that their de facto relationship ended in January 2010. The husband contended that the wife informed him on 20 January 2010 that she had commenced a relationship with Mr Y. The wife maintained that this relationship commenced in October 2010.
In November 2010 the husband purchased the property “QQ” for a price of $3,050,000. Additionally, he paid $121,739 for livestock and $50,000 for plant and equipment. The vendor provided a mortgage of $2,000,000 for two years, with the balance of the purchase price coming from an increase in the debts secured on the LL property. In November 2012 the husband re-financed loans in relation to the QQ property by way of National Australia Bank borrowings.
In 2010 Mr Y purchased a residential property at Suburb B. The wife and the children began to live in this home in July/August 2011 and Mr Y took up residence with them in about September 2011.
In December 2010 Mr Y purchased a beach house close to LL, which was owned by the wife’s parents, for $2,000,000. In cross-examination the wife said that she last stayed in the beach house just before she travelled overseas with Mr Y in June/July 2015.
After the sale of their house to Mr Y, the wife’s parents moved into a cottage on the LL property. In July 2012 the wife’s parents commenced litigation in the Supreme Court of New South Wales, in which they claimed a life interest in this cottage. The litigation was compromised by way of a deed dated 3 August 2012.
In May 2012 the husband’s livestock were diagnosed with a contagious disease. An issue in the proceedings was the impact, if any, of the infected status of the livestock on the value of the farming properties.
On 20 September 2012 the wife and Mr Y entered into a purported loan agreement. The existence and enforceability of the alleged loans were a live issue in the proceedings.
On 5 December 2012 the husband unsuccessfully submitted the QQ property to sale by auction. In January 2014 he replaced the plant and equipment at QQ at a total cost of some $610,000, including construction and installation of equipment. The husband financed this project by re-arrangement of borrowings with the National Australia Bank.
In July 2014 the husband borrowed a sum of $100,000 from his mother, to assist with cash flow problems resulting from drought conditions. The principal sum of the mortgage registered on the title to the SS property was increased to $450,000.
The wife took an overseas holiday with Mr Y in January 2015. They both gave evidence that he met the entire cost of this trip. The wife travelled overseas with Mr Y in June/July 2015. Again, he was solely responsible for the cost of this trip.
The evidence and witnesses
The applicant wife relied on the following affidavits:
1.Ms Huxley (the applicant de facto wife) sworn on 23 March 2015 and 17 August 2015;
2.Financial Statement of Ms Huxley sworn on 23 March 2015;
3.Mrs H (mother of wife) sworn on 16 March 2015;
4.Ms H (sister of wife) sworn on 13 March 2015;
5.Ms U (friend of wife) sworn on 25 March 2015;
6.Ms F (friend of wife) sworn on 27 April 2012;
7.Mr N (landscape gardener) sworn on 10 March 2015;
8.Mr Y (current or former partner of wife) sworn on 17 March 2015;
9.Mr V (adversarial expert real estate valuer of wife) sworn on 3 July 2015;
10.Mr K (wife’s adversarial expert plant and equipment valuer) sworn on 22 February 2015; and
11.Mr O (wife’s adversarial expert livestock valuer) sworn on 11 March 2015.
Ms U, Ms F, Mr N, Mr K and Mr O were not required for cross-examination
The respondent husband relied on the following affidavits:
1.Mr Morris (the de facto husband) sworn on 31 March 2015 and 17 August 2015;
2.Financial Statement of Mr Morris sworn on 31 March 2015;
3.Mrs M (mother of husband) sworn on 26 March 2015;
4.Mr X (husband’s adversarial livestock valuer) sworn on 28 February 2015;
5.Mr J (husband’s adversarial expert plant and equipment valuer) sworn on 10 August 2015; and
6.Mr W (husband’s accountant) sworn on 18 November 2015.
Mr X and Mr J were not required for cross-examination, as the parties reached agreement in relation to the valuation of plant, equipment and livestock. The husband also relied on a report dated 7 August 2015 by a real estate valuer, Mr T (Exhibit 15).
Two single experts prepared reports in the proceedings. The single expert real estate valuer, Mr RR, swore an affidavit on 14 August 2015. A forensic accountant, Ms NN, prepared a report dated 28 November 2015. Ms NN gave brief oral evidence by way of cross-examination. The three real estate valuers gave evidence in a “hot-tub” format on 24 November 2015.
On 31 July 2015 leave was granted to the wife to adduce evidence from Mr V, as an adversarial real estate valuation expert. Directions were made on that day which required Mr V and Mr RR to confer and produce a memorandum setting out points of agreement and disagreement. They produced a document dated 10 August 2015.
The husband then sought leave to rely on evidence from Mr T, as an adversarial expert real estate valuer. I granted such leave on the first day of the trial, being 17 August 2015. I took the view that, potentially, there could well be an injustice to the husband if the wife were permitted to rely upon adversarial valuation evidence and he was denied that opportunity. Mr RR, Mr V and Mr T ultimately conferred and produced memoranda dated 18 November 2015 and 19 November 2015.
On the first day of the trial an issue arose in relation to a subpoena to produce documents served upon Mr Y. This subpoena required production of the following documents:
Item Number Date Description 1. A copy of the Subpoena 2. 1 July 2010 to date (“the Period”) All Income Tax Returns, Notices of Assessment and Group Certificates for the financial years ended 30 June 2009 to date of subpoena. 3. All Income Tax Returns and Profit & Loss Statements for any company of which you are a director or shareholder, either legally or beneficially, other than any company listed on the Stock Exchange for the Period. 4. All Balance Sheets, Profit & Loss Statements, Financial Reports and copies of all Income Tax Returns and Assessments relating to any trusts in respect of which you are the settlor, appointor, trustee or beneficiary, or in which you have any other interest or to which you have made a loan or a gift, or in respect of which you, any spouse or former spouse, parent or child of yours has received a distribution of income or other benefit during the Period.
5. All bank statements with respect to any account in which you have, or had, an interest with [Ms Huxley] during the Period. 6. All records, agreements, contracts, memoranda, diary notes, letters and copy letters relating to any loan or advance made by you or any person or entity on your behalf or at your direction to [Ms Huxley] or any person or entity on her behalf during the Period. 7. All documents regulating or otherwise reflecting the terms of any financial arrangement between you and [Ms Huxley]. 8. All documents indicating expenses paid by you or at your direction or at the direction of [Ms Huxley] for or on behalf of [Ms Huxley] during the Period. 9. All documents indicating the nature and extent of any financial support provided by you or on your behalf to [Ms Huxley] during the Period. 10. All documents relating to the payment of expenses by you or at your direction or at the direction of [Ms Huxley] for the children, [R] born [in] 2003 and [G] born [in] 2006, including but not limited to school fees paid or payable to [C] School during the Period. 11. All documents evidencing payments made by or on behalf of [Y Business] to [Ms Huxley] during the Period 1 July 2009, including but not limited to Group Certificates issued to [Ms Huxley]. 12. All documents relating to income or other benefits received by you by way of personal exertion and/or wages in the past three years, including but not limited to Income Tax Returns and Group Certificates.
Counsel for Mr Y suggested certain amendments to paragraphs 6, 7, 8, 9 and 10 of the subpoena, which were acceptable to the husband’s lawyers. Accordingly a dispute remained in relation to paragraphs 2, 3, 4 and 12, which counsel for the Mr Y described as “impermissibly broad”.
In written submissions, counsel for the Mr Y set out his objections to these paragraphs in the following terms:
5.In summary terms, objection is otherwise taken to the production of the documents sought on bases that:
(a)the documents have no apparent relevance to the issues in dispute in the proceeding;
(b)the subpoena constitutes an unwarranted invasion into the privacy and rights of a non-party to the litigation;
(c)there is no arguable basis to justify the breadth of the documents sought to be produced, particularly given the time constraints referred to above;
(d)until receipt of the subpoena, the recipient had no recent knowledge that his financial affairs would be brought into question in the proceeding;
(e)in the premises and, further, the Husband being otherwise unaware of the contents of the documents sought, and having regard to the breadth of the terms of the subpoena, it necessarily constitutes an abuse of process (“fishing”).
Counsel for the husband indicated that the relevance of these documents lay in part in the prospect of a claim by the wife against Mr Y pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). Counsel for the husband submitted further that these documents were relevant also to an issue as to whether Mr Y constitutes an ongoing financial resource of the wife.
I determined to strike out paragraphs 2, 3, 4 and 12 of the subpoena. I took the view that the details of the financial position of Mr Y and his corporate entities were not relevant to the issues between the husband and the wife in these proceedings. In my view the past generosity of Mr Y to the wife, and the prospect of future largesse, are matters of potential relevance. I considered, however, that the husband is not entitled to delve into aspects of the financial dealings of Mr Y and his entities which have no connection to the wife. In my view, Mr Y is entitled to privacy and protection of his commercial interests.
I did not accept that some potential claim by the wife against Mr Y, pursuant to Part VIIIAB, afforded to the husband any right of access to the disputed documents. There was no evidence that the wife has any intention of bringing such a claim. Further, any attempt to quantify possible orders in favour of the wife would be mere speculation and unhelpful in the present context.
I requested that counsel for Mr Y prepare a minute to reflect my rulings, which was presented in the following terms:
1.The subpoena to [Mr Y] issued on 22 June 2015 is set aside or varied in the respects set out below:
(a)item numbers 2, 3, 4 and 12 in the schedule to subpoena are set aside in the entirety;
(b)in item 6 in the schedule to subpoena, the words “relating to” are replaced with “recording or referring to”;
(c)in item 7 in the schedule to subpoena, the word “reflecting” is replaced with “recording”;
(d)items 8 and 9 in the schedule to subpoena are limited to the production of electronic funds transfers evidencing payments made to or on behalf of the applicant by or at the direction of [Y] or entity in which he has an interest and are otherwise set aside;
(e)in item 10 in the schedule to subpoena, the words “relating to” are replaced with “evidencing”.
2.Costs be reserved.
I made orders in accordance with this minute on 17 August 2015.
Approach to these proceedings
In Stanford v Stanford (2012) 247 CLR 108 the majority of the High Court of Australia held as follows at [35]:
It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
Their Honours further observed as follows at [42]:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.
That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
With appropriate substitution of equivalent sections in Part VIIIAB of the Act, these principles govern the present proceedings. There is no jurisdictional impediment to the Court’s determining the competing applications of the parties. They are both ordinarily resident in New South Wales (section 90SK). The de facto relationship of the parties subsisted for a period in excess of two years and they have two children (section 90SB).
The parties have lived separately and apart for some six years and there has been no intermingling of their funds, nor common use of assets, since approximately December 2011. At that point, the husband stopped paying the children’s private school fees and Mr Y began to do so. Legal title to the vast majority of the assets in the pool is held either by the husband or the Trust. I construe the competing applications of the parties as mutual concessions to the effect that it is just and equitable that there be orders for alteration of property interests. There was no suggestion or submission to the contrary. I am satisfied that it is just and equitable that there be orders for alteration of property interests for these reasons.
It is first necessary to determine the ownership and value or quantum of the assets, superannuation, liabilities and financial resources of the parties. All relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 90SM(4) must be identified and weighed against each other. The matters set out in paragraphs (d) to (g) of section 90SM(4), particularly paragraph (e) which takes up by reference the provisions of section 90SF, must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties as earlier assessed on account of contribution.
At an early stage in the trial the parties reached agreement in relation to two issues, which were recorded as Exhibits 1 and 2. These documents read as follows:
Agreed Facts
1.That each of the Applicant and Respondent have decided not to read parts of their affidavits that could be interpreted as going to issues of violence and/or conduct of the category referred to by the Full Court in Kennon.
2.Neither party shall make any submission about matters going to that effect.
3.Neither party shall seek an order for costs in relation to such matters.
17 August 2015
Dated:19/8/15
Agreed Facts No 2
1.That the parties agree for the purposes of these proceedings as to the values of the following items held by the [MM] Family Trust:
a)livestock at $904,499
b)plant and equipment $332,315.
The assets, superannuation, liabilities and financial resources
On 25 November 2015 the parties submitted a joint balance sheet in the following terms:
| Ownership | Description | Wife’s value | Husband's value | |
| ASSETS | ||||
| 1 | Husband | [LL E1] Folio Identifiers …, … [Mr RR] $2,250,000 [Mr V] $2,750,000 [Mr T] $2,150,000/$2,700,000 | $2,750,000 | $2,150,000 |
| 2 | Husband | [LL E2] [Mr RR] $1,875,000 [Mr V] $2,200,000 [Mr T] $1,875,000/$1,600,000 | $2,200,00 | $1,900,000 |
| 3 | Husband | “[QQ]”, [Town A]. Folio Identifier … (valuation 27/9/12) [Mr RR] $3,650,000 [Mr V] $3,650,000 [Mr T] $3,650,000/$2,700,000 | $3,650,000 | $3,467,500 |
| 4 | Husband | “[SS]”, [Town A]. Folio Identifier … (valuation 27/9/12) [Mr RR] $600,000 [Mr V] $600,000 [Mr T] $500,000/$450,000 | $550,000 | $550,000 |
| 5 | Husband | 10 Ordinary shares in [MM] Nominees t/as [MM] Family Trust: Property Value A ($1,225,000) - $672,420 Property Value B ($1,100,000) - $547,420; Property Value C ($695,000) - $142,420; Property Value D ($570,000) - $17,420; Property Value E ($465,000) - $0 Property Value F ($667,000) - $114,420 | $547,420 | $114,420 |
| 6 | Husband | 1 Ordinary share [AX] Pty Ltd Property values A to D for trust $803,747 Property value E for trust $742,461 Property value F for trust | $803,747 | $803,747 |
| 7 | Husband | 4 Ordinary shares [LL] Pty Ltd Property Value A to D for trust $27,659 Property value E for trust $25,550 Property value F for trust | $27,659 | $27,659 |
| 8 | Husband | Debt to Husband from [LL] Pty Ltd | $119 | $119 |
| 9 | Husband | Debt to Husband from [MM] Trust | $49,398 | $49,398 |
| 10 | Husband | NAB #765 | $1,187 | $1,187 |
| 11 | Husband | Contents | $7,000 | $7,000 |
| 12 | Wife | ANZ Account # 536 | NIL | NK |
| 13 | Wife | Contents | $10,000 | $10,000 |
| 14 | Wife | Paintings and jewellery | $10,000 | $10,000 |
| 15 | Husband | 220 CBD energy shares at .90 per share | $198 | $198 |
| 16 | Wife | Funds in Barkus Doolan Trust Account | $101,000 | $0 |
| Husband | Funds in Gordan and Barry Trust Account | $105,000 | $0 | |
| 18 | Total | $10,812,728 | $9,091,228 | |
| 19 | ADDBACKS | |||
| 20 | Ownership | Description | Wife’s value | Husband's value |
| 21 | Husband | Legal Costs | $347,537 | $0 |
| 22 | Wife | Legal Costs | $492,207 | $0 |
| 23 | Husband | Listed shares sold | ||
| 24 | Total | $839,744 | $0 | |
| 25 | LIABILITIES | |||
| 26 | Ownership | Description | Wife’s value | Husband's value |
| 27 | Husband | [QQ] National Australia Bank #519 | -$2,000,000 | -$2,000,000 |
| 28 | Husband | [QQ] National Australia Bank #533 | -$1,000,000 | -$1,000,000 |
| 29 | Husband | [Mrs M] Mortgage [SS] | -$450,000 | |
| 30 | Husband | “[PP]” St George Mortgage (included in value of trust) |
|
|
| 31 | Husband | National Australia Bank Mastercard #708 @ 12.08.15 |
|
|
| 32 | Husband | Debt to [MM] Trust | -$1,231,829 | -$1,231,829 |
| 33 | Husband | Disposal costs for sale of real estate inc CGT |
| |
| 34 | Husband | Disposal costs for sale of livestock and plant and equipment inc CGT |
| |
| 35 | Husband | Cost of removal of wealth from corporate entities |
| |
| 36 | Husband | Debt to [AX] | -$25,000 | -$25,000 |
| 37 | Husband | Debt to St George | -$49,398 | -$49,398 |
| 38 | Wife | Debt to [MM] Trust | -$10,645 | -$10,645 |
| 39 | Wife | Loan owing to [Mr Y] (these relate to the payment of the Wife’s legal costs as identified in paragraph 21 and represents the funds in the Trust Account of Barkus Doolan, as well as the payment of the [C] School fees) | ||
| -$703,053 | 0 | |||
| 40 | Total | -$5,019,925 | -$4,766,872 | |
| 41 | SUPERANNUATION | |||
| 42 | Member | Name of Fund | Wife’s value | Husband’s value |
| 43 | Husband | [Morris] Superannuation Fund | $71,837 | $71,837 |
| 44 | Wife | [XX] Super as at 31 December 2014 | $4,318 | $4,318 |
| 45 | Total | $76,155 | $76,155 | |
| 46 | FINANCIAL RESOURCES | |||
| 47 | Ownership | Description | Wife’s value | Husband's value |
| 48 | ||||
| 49 | ||||
| 50 | Total | $0 | $0 | |
| 51 | SUMMARY | |||
| 52 | Total property | $10,812,728 | $9,091,228 | |
| 53 | Total addbacks | $839,744 | $0 | |
| 54 | Total liabilities | -$5,019,925 | -$4,766,872 | |
| 55 | Total superannuation | $76,155 | $76,155 | |
| 56 | Total financial resources | $0 | $0 | |
| 57 | TOTAL | $6,708,702 | $4,400,511 | |
Notes
In relation to any disputed items and all disputed values for items a party should state, using the item number as a heading:
Why an item should not be on the balance sheet.
Whether expert evidence is required to resolve a dispute as to value and what steps have been taken to agree upon and appoint a single expert.
Whether documents in the possession of the other party need to be provided before the value of an item can be agreed.
Any other comment a party wishes to make in relation to the disputed item.
| Item No. | |
| 1 | [Mr RR] 16/10/15 $2,250,000 H [Mr T] 10/11/5 $2,150,000 W [Mr V] 116/10/15 $2,750,000 |
| 2 | [Mr RR] 16/10/15 -$1,875,000 H- [Mr T] 10/11/15 $1,875,000 W- [Mr V] 16/10/15 $1,875,000 |
| 3 | [Mr RR] 16/10/15 $3,650,000 H [Mr T] 10/11/15 $2,700,000 W- [Mr V] 16/10/15 $3,650,000 |
| 4 | [Mr RR] 16/10/15 $600,000 H [Mr T] 10/11/15 $450,000 W [Mr V] 16/10/15 $600,000 |
| 5 | H Report [Ms NN] 6/8/15 note h, and para 127, page 27 scenario 1 includes the value of structural |
| 6 | H Report of [Ms NN] 6/8/15 note h, and para 149-150, page 32. The only significant asset of [AX] Pty Ltd is the money owed by the [MM] Trust. In view of the Husband’s contentions in relation to the value of the Trust the capacity of the Trust to repay the loan to [AX] is reduced by the amount of $370,849. This gives a value of $432,898 ($803,747 -$370,849). The Wife relies upon the value ascribed by Ms [NN]. as adjusted in her oral evidence. |
| 7 | H Report of [Ms NN] 6/8/15 note h and page 34-35 at paragraph 164-175; |
| 8 | H Report of [Ms NN] 6/8/15 note h, see also page 35 at paragraph 177. |
| 9 | H Report of [Ms NN] Note K |
| 10 | H estimate at 7/8/15 |
| 11 | H Financial Statement Filed 31/3/15 |
| 12 | H The Wife served statements for this account to 12/8/14 the Husband does not know the current balance |
| 13 | H Financial Statement of Wife filed 23/3/15 |
| 14 | H Financial Statement of Wife filed 23/3/15 |
| 15 | H Share price at 7/8/15 likely to be worth nil according to share market, company delisted |
| 16 | H concedes Wife has money in lawyers trust account but says in circumstances where the money originated from Mr [Y] and the liability is not conceded at 39 the amount should be zero |
| 18 | |
| 19 | |
| 20 | |
| 21 | H The husband’s costs have been paid from post separation earnings and the Wife’s have been paid by [Mr Y]. On this basis the Husband contends that the costs ought not be added back. The Wife contends that the husband’s legal costs ought be added back as his evidence in cross examination was that his legal fees had been paid via drawings on the loan account with the [MM] Family Trust and his expenditure on legal costs is included as a liability at paragraph 32. |
| 22 | |
| 23 | |
| 24 | |
| 25 | |
| 26 | |
| 27 | H as per letter 19.11.13 Pearson Family Lawyers to Gayle Meredith and Associates. |
| 28 | |
| 29 | |
| 30 | Hs member entitlements 30 Jun 2013. |
| 31 | |
| 32 | H report [Ms NN] 6/8/15 note 1. The wife seeks clarification from the Husband as to how the loan account came into existence. |
| 33 | H The Husband contends CGT will be payable on the sale of real estate at 47.3% as advised by his Accountant. The precise cost will depend on the Orders made by the Court and the evidence by way of cross examination of the forensic expert. B143 |
| 34 | H The Husband contends the cost including tax on the sale of livestock and plant & equipment owned by the [MM] Trust is again dependent on the Orders the Court makes and the evidence of the expert Ms [NN]. W The Wife has sought particulars from the husband. There has been no response to such communication. |
| 35 | H The Husband will incur GST on the removable of wealth from [AX] Pty Ltd and [LL] Pty Ltd in the amount of $228,640 as per the advice of his accountant. The wife does not accept the assertion by the Wife. (sic) |
| 36 | H Report of [Ms NN] 6/8/15 note L, see also page 33 at paragraph 160 and 163 |
| 37 | H Report of [Ms NN] 6/8/15 see note k, see also page 30 at paragraph 143(c) and page 70 at appendix 9 |
| 38 | H Report of [Ms NN] 6/8/15, see note j, see also page 30 at paragraph 143(b) |
| 39 | |
| 41 | |
| 42 | |
| 43 | |
| 44 | H Report of [Ms NN] 6/8/15 note h, also see page 36 at paragraph 186 |
| 45 | H Wife Financial Statement 27/3/15 |
| 46 | |
| 47 | |
| 48 | |
| 49 | |
| 50 | |
| 51 | |
| 52 | |
| 53 | |
| 54 | |
| 55 | |
| 56 | |
| 57 |
(Emphasis in original)
The assets
It was common ground that the assets with disputed values were items 1, 2, 3, 5, 16, 17, 21 and 22 in the balance sheet, being the following:
1. LL E1;
2. LL E2;
3. QQ;
5. 10 ordinary shares in the MM Trust;
16. Wife’s funds in solicitor’s trust account;
17. Husband’s funds in solicitor’s trust account;
21. Husband’s paid legal costs; and
22. Wife’s paid legal costs.
Valuation of Real Estate
I will now consider the evidence of the three real estate experts as to the values of the properties “PP”, “LL” E1, “LL” E2 and “QQ”. The parties agreed that the “SS” property is valued at $550,000. The value of the “PP” property has a direct impact on the worth of the MM Trust.
Counsel for the wife objected to certain passages in the valuation reports of Mr T. In part, counsel for the wife relied on the High Court authority of Dasreef Pty Ltd v Hawcher (2011) 243 CLR 588, where Heydon J said as follows at 622 - 624:
But the reasoning must be stated. The opposing party is not to be left
to find out about the expert’s thinking for the first time in
cross-examination…The witness must explain the basis of theory or experience because the court is not limited to examining the conclusion or expertise of the expert witness; it must look to the “substance of the opinion expressed.” Since choosing between conflicting experts depends in part of “impressiveness and cogency of reasoning” their “processes of reasoning” must be identified…
The process of inference that leads to the [expert’s] conclusions must be stated or revealed in a way that enables the conclusions to be tested and a judgment made about the reliability of them.
Counsel for the wife objected to the contents of paragraphs 8.6, 8.7 and 9 of Mr T’s report to relation to the PP property. In paragraph 8.6 Mr T carried out a “future values forecast.” He stated: “From my research I have concluded that a rate of 2.5% per annum over the next 11 years would be an appropriate rate of growth.” Eleven years was the approximate life expectancy of Mrs M, which is 10.9 years according to tables produced by the Australian Bureau of Statistics. Mr T then discounted his future value of the property by 10 per cent “to reflect the Remaindermans Interest.”
I accepted the submission of counsel for the wife, to the effect that Mr T gave no explanation why he selected these percentage rates. I was not persuaded that there was an obligation upon the wife’s lawyers to trawl through all of the material which emanated from Mr T, including joint conference memoranda and a supplementary report for which no leave was granted, to identify his reasoning process.
The husband was granted leave to rely upon evidence of Mr T as an adversarial expert. Leave was not granted for Mr T to prepare a critique of the reports of Mr RR and Mr V. For that reason, I excluded the material which appeared at paragraph 9 on pages 22 and 23 of the report of Mr T in relation to the PP property.
I took the same view in relation to the contents of paragraph 8.7. I considered that Mr T did not explain how he arrived at a discount rate of 12 per cent for diseased livestock “stigma”. Accordingly, I excluded paragraphs 8.6 and 8.7.
Counsel for the wife objected to the material which appeared at page 17 and paragraph 2 on page 18 of Mr T’s report in relation to the QQ property. I accepted that Mr T reached conclusions based on unstated facts and which otherwise appeared to be without basis.
Inter alia, Mr T dealt with a sale in 1992 of a property at Town GG with a similar livestock disease affectation. He stated that “... the expectation was that the property should achieve $1,300,000 to $1,400,000” and then proceeded to “use this sale as the basis of my assessment as to discount for contamination of a property affected by [livestock disease].” Mr T opined that a discount of 25 per cent to 30 per cent would be appropriate for the QQ property.
Mr T did not specify who formed an ‘expectation’ for a price of $1,300,000 to $1,400,000, nor the basis upon which this person or persons arrived at that view. I considered that there was substance to counsel’s objections to this material, which I excluded from the evidence. Similarly, I took the view that the wife’s lawyers had no obligation to trawl through all of the material which emanated from Mr T in order to identify his process of reasoning.
Counsel for the wife objected to material on pages 17, 18 and 19 of Mr T’s report in relation to the LL E2 property, on the basis that his reasoning process was unclear and that he had relied upon unstated facts. Mr T opined, inter alia: “It is my experience that the property is stigmatised and will meet market resistance due to the detrimental condition.”
Mr T here referred again to properties affected by livestock disease in the Southern Tablelands districts in the 1990s. He opined that there was a decline in the market caused by this affectation, with a recovery period of five to ten years. He set out no basis for these opinions.
The material to which objection was taken on page 18 of the report of Mr T in relation to this property suffered from a similar lack of factual underpinning and explanation of the reasoning process. Some of this material was a repetition of statements made and conclusions drawn from the sale of properties suffering from similar livestock disease affectation in the 1990s.
Objection was taken to the first two paragraphs on page 19 of the report of Mr T and to the whole of paragraph 8.6. I accepted the submission that Mr T did not explain how he arrived at a discount rate of 15 per cent to 20 per cent for livestock disease affectation. I accepted also that he did not explain how discounts for “property affected by such things as white ant damage, grow houses, property affected by criminal activity, murders, suicides and other forms of contamination” were relevant to the value of the subject. Mr T did not identify any of these supposedly affected properties.
Objection was taken to the whole of the contents of paragraph 14 of Mr T’s report, which appeared on pages 23, 24 and 25. Again this material was a critique of the opinions of Mr RR and Mr V, which went beyond the leave granted to the husband to rely on evidence from Mr T.
I concluded that there was substance to the objections taken by counsel for the wife to the specified passages of the report of Mr T in relation to the LL E2 property. I repeat my earlier expressed view that the wife’s lawyers were not obliged to trawl through the whole of the material proffered by Mr T, in order to identify the facts upon which he relied and his process of reasoning. Accordingly, I excluded from this report the passages to which objection was taken by counsel for the wife.
Counsel for the wife also objected to certain passages in the report of Mr T in relation to the LL E1 property. This material appeared at pages 15, 16, 17 and 18 which, to a large extent, replicated the passages to which objection was taken in Mr T’s report concerning the LL E2 property. I took the view that these objections were soundly based, for reasons which were articulated in relation to the report concerning the LL E2 property. Accordingly, I excluded this material from the evidence. I repeat my view that it was not incumbent upon the wife’s lawyers to trawl through all of the material proffered by Mr T in order to identify the facts upon which he relied and his reasoning process.
Counsel for the wife objected to a considerable portion of the supplementary report of Mr T dated 10 November 2015. I agree that leave was not granted so as to enable Mr T to prepare this supplementary report. Specific objections were taken to the material under the headings “Sales Evidence [livestock disease]” (page 3), “Market Evidence for Stigma” (pages 4, 5 and 6), “Other Evidence of Stigma” (pages 6, 7, 8 and 9) and “Conclusions” (pages 10 and 11).
In relation to similar livestock disease-affected properties, Mr T referred to “discussions with owners” and again referred to the sales in the 1990s of properties in the Town GG area. He referred to discussions with stock and station agents and newspaper articles.
Mr T included in this report material relating to asbestos-affected properties and again referred to discussions with selling agents. There is reference to properties where a double murder occurred in 2000, a multiple murder in 2009 and a suicide at an unspecified time. There was reference to sales of properties affected by termites in 2010 and another at an unspecified time. Further, the report referred to sales of properties at which drug-related activities were known to have taken place. Only one specific property was mentioned in the report.
I accepted the submissions of counsel for the wife to the effect that the facts upon which Mr T relied, and his reasoning process, were not evident from this report. It would be a lengthy process to set out every objection on a line-by-line basis. In my view, however, the soundness of the objections was well evidence on the face of this report. I excluded from the supplementary report of Mr T dated 10 November 2015 the material to which objection was taken by counsel for the wife.
“PP”
The Trust is the registered proprietor of this property, which is subject to the right of Mrs M to reside in the house for her lifetime. Objection was taken successfully to the valuation contained in the report of Mr T and counsel for the husband conceded that, accordingly, he could give no oral evidence on that issue. The material which was excluded from evidence appears at pages 21, 22 and 23 of the report of Mr T. Accordingly, the competing opinions were those of Mr RR and Mr V.
Both Mr RR and Mr V assessed the unaffected value of this property at $1,225,000. They agreed that Mrs M has a life expectancy of 10.9 years, based on tables prepared by the Australian Bureau of Statistics. They disagreed as to the methodology which should be applied to assess the impact of Mrs M’s life estate on that value of $1,225,000.
Mr RR maintained that he adopted “accepted valuation methodology” by calculating a “deferred value” of this property by 10.9 years and then adding the “present value” of estimated rental income for grazing. He calculated the present value of $1,225,000 deferred by 10.9 years at 6% at $637,992.
Mr RR took the view that grazing is the highest and best use of the portion of the property which is unaffected by the interest of Mrs M. He considered that a reasonable rate of income from agistment would be $7,000 per annum, being $5 per week for 27 head of stock. Mr RR calculated the present value of $7,000 per annum for 10.9 years at 6% at $55,905.
Accordingly Mr RR assessed the value of the PP property, as affected by the interest of Mrs M, at $693,897. This sum is the total of $637,992 and $55,905, which he rounded off to $695,000.
During cross-examination Mr RR was asked by counsel for the husband to consider the effect of livestock disease affectation on the value of this property. I infer that these questions were put because Mr RR took into account potential income from agistment or grazing in his valuation. I allowed these questions because I excluded only the passages in the reports of Mr T to which objection was taken specifically and this material did not cover all references to the relevant disease.
Initially, Mr RR’s response was “Well, I hadn’t thought about it.” Counsel for the husband conceded in his questions “... I appreciate we’re doing this on the run and it might be a bit hard” and “…I appreciate it’s on the hop”. Mr RR then said that he thought he would make an allowance for disease affectation and said “would have to think about how much.” He then conceded a figure of $28,000, which was suggested to him by counsel for the husband. When asked “Are you comfortable with that?” Mr RR replied “Yes.” With respect to counsel for the husband, I do not consider that Mr RR was afforded a proper opportunity to consider this issue. I do not accept the revised valuation of $667,000.
Mr V’s methodology was to reduce the value of $1,225,000 by the present value of rental for the house over a period of 10.9 years. He considered that a reasonable rental for the house would be $15,600 to $18,200 per annum, with a range of 5 per cent to 6 per cent. On that basis, Mr V deducted an amount of $125,000 from $1,225,000 to arrive at his valuation of $1,100,000.
Mr V considered that the interest of Mrs M relates only to the house and that a purchaser could use the remainder of the property for a number of purposes. At page 3 of his report Mr V opined:
The remainder of the acreage could be used for grazing or in fact for any purpose required by the owner, and allowable under the zoning or existing use rights, assuming the life tenant is allowed “quiet enjoyment” of the dwelling and its immediate surrounds.
Thus in my view, the only detriment to the value of the property can be quantified as the loss of rental (be it actual or assumed) over the dwelling itself. The property can be held as existing, [stock] run upon as seems the actual case, it could be put to any other use permissible under the zoning be further developed or have cottages or ancillary dwellings constructed upon it (subject to Council approval), it can be mortgaged or in fact sold subject to the life interest.
Mr V had not read the deed which created the life tenancy of Mrs M, thus he was unaware of terms and conditions attaching to her interest in the property. He did not know whether the terms of her interest would permit the encumbrance or sale of the property. He could not say whether any of his suggested uses of the property would be permissible within zoning and council regulations.
Mr RR was of the view that approval of construction of additional cottages would be unlikely without a manager’s residence on the property. He also considered that Mr V’s methodology made no allowance for “profit and risk.” He suggested that there would be a “very small buyer pool willing to take on the inherent risk without a significant discount.”
During cross-examination by counsel for the husband, Mr V made these concessions:
·He was instructed to prepare a critique of Mr RR’s valuation;
·“What I [was] determining [was] the value of the life tenancy”;
·He valued the property “…as if it’s not the subject of any encumbrance by way of a life tenancy, just take off the rent that you would use for the cottage and that’s what you get to”;
·He did not carry out “a full and comprehensive valuation”;
·He had not considered the “approach of financial institutions in relation to provision of funding secured on the subject because of the deed”; and
·He was not aware of a sale of a rural/residential property which is subject to a life estate.
Mr RR commented that Mr V had regard only to the interest of Mrs M and gave no consideration to its effect on the property as a whole. It seems to me that there is substance to Mr RR’s proposition. Mr V made assumptions concerning potential uses of the property, without knowledge of the terms and effect of Mrs M’s interest or the viability of these suggested options.
Overall, I consider that the methodology of Mr RR is sounder than that of Mr V. As well I have concerns that Mr V did not, by his own admission, carry out a full and thorough valuation exercise. For these reasons, I prefer the evidence of Mr RR and I find value of the PP property to be $695,000.
“LL” E1 and “LL” E2
Mr RR valued the LL E1 property at $2,250,000. He assessed a land value of $1,593,225, being $22,500 per hectare. The improvements consisted of a homestead, games room, double garage, calf shelter, calf sheds, two machinery sheds, aged hayshed, concrete silo converted to an office and bathroom, dairy, slab shed and fencing and laneways, which Mr RR valued at $650,000.
Mr RR considered that neither of these two properties could function as a viable farm if operated independently. Mr V agreed with that proposition and Mr T appeared to accept that there would be difficulties with either of these properties operating independently as a farm.
Mr RR and Mr V considered that “lifestyle” was the highest and best use of these properties. Mr T initially resisted that proposition and contended that the highest and best use was “residential with an agricultural use”. In the joint statement, however, Mr T opined that the dairy and “‘obsolete rural improvements’ should not be included in the value ... based on a highest and best use as lifestyle blocks”.
Mr V adopted a land value rate of $26,000 per hectare for each of these two properties. He considered that the improvements on the property E1 were worth $920,141 and, accordingly, he valued this property at $2,750,000.
Mr V relied upon comparable sales at a variety of South Coast locations. Mr RR disputed the comparability of these sales. Mr RR maintained that the some of the properties differ from the subject because “they are within 1.5–2 hours’ drive from the wealthy Sydney markets and more closely related to sales activity in Sydney, whereas the subject properties are some 3-3.5 hours from Sydney.” Mr RR considered further that the ocean views and frontage of other properties differentiated these sales from the subject.
In his oral evidence Mr RR said: “I mean, the … sales are – are sort of ocean front. Prime. And whilst they have been farming country in the past, their real value is Sydney buyers ...”
Mr V conceded that, in terms of location, these properties were superior to the subject. In the joint statement of 18 November 2015 Mr V maintained that he had taken these matters into account in his analysis of comparable sales. He made a similar comment in his oral evidence.
With respect to Mr V, he did not explain how he factored these differences into his analysis of the sales which he considered to be comparable to the subject properties. I consider that there is substance to Mr RR’s evidence in regard to the comparability of these sales.
Mr RR also disputed the comparability of the sale of one of the nominated properties. He pointed to that property’s lengthy river frontage, approval for three concessional allotments and closer proximity to Sydney. Again Mr V contended that he had taken these matters into account but did not elaborate on that process. In his report, Mr V noted that he was informed by the selling agent that there was “keen competition for the property”.
The other significant difference between the approaches of Mr RR and Mr V was their treatment of land value. Mr RR assessed the land value component on a “fenced, cleared and watered” basis. Mr V assessed a value for land only and then added a figure for “rural improvements”, including fencing, yards, ancillary shedding, roads, lanes, dams, piping and reticulation and troughs.
Mr RR commented that Mr V disregarded the improvements on the two Town A properties, which he thus treated effectively as vacant land. According to Mr RR, Mr V then applied these per hectare rates to the subject properties and added his value of the improvements.
Mr RR and Mr V were both of the view that farm improvements on each of these properties would add ancillary value to a lifestyle purchaser. As noted, they both considered that each of these properties individually would be unviable as a farm. Accordingly, the highest and best use was as lifestyle properties. In my view, these factors militate against the much higher value for improvements which was asserted by Mr V. I am persuaded, and I find, that Mr RR’s valuation is more likely to be accurate than that of Mr V. I find that the property LL E1 has a value of $2,250,000.
Mr T assessed the value of the E1 property at $2,150,000 on a
non-disease affected basis. As set out above in these reasons, I excluded from the reports of Mr T the material relating to discount for disease “stigma” and consequent discount on unaffected value of the properties.
Mr T valued the E1 property at $2,150,000 on a non-disease-affected basis. Effectively, my rulings in relation to the passages of Mr T’s report which relate to the disease affectation removed that issue from consideration. I am conscious that both Mr RR and Mr V opined that livestock disease would have no impact upon a lifestyle purchaser. There would seem to me to be substance to that proposition, as a lifestyle purchaser would not acquire these properties with a view to conducting a farming enterprise.
Mr RR valued the property LL E2 at $1,875,000, a figure which was ultimately accepted by Mr T on a non-disease affected basis. Mr V attributed a value of $2,200,000 to this property.
Essentially, the differences between Mr RR and Mr V were the land rate per hectare and the value of the improvements. Mr RR adopted a rate of $22,500 per hectare and attributed a value of $450,000 to the improvements. Mr V adopted a per hectare rate of $26,000 and valued the improvements at $543,500.
As noted, Mr RR and Mr V held competing views as to the comparability of the latter’s sales evidence in relation to both of these subject properties. In his oral evidence Mr RR said:
The big difference between Mr [V] and I was in the way we analysed our sales. Mr [V] analysed a couple of what I think are probably the best sales, based on improved value, where he left no value for the house, fencing, dams etc. When utilising those figures onto the subject, he has adopted the higher rate on the land and then added the improvements, which appears to be a double dip.
I share the concerns expressed by Mr RR as to the comparability of the sales relied upon by Mr V. Further, I accept that Mr RR made a valid point in relation to Mr V’s treatment of the two Town A sales. As noted, I consider that Mr V did not explain how he factored into his analysis the differences which he acknowledged between the subject properties and the allegedly comparable sales.
For these reasons, and noting that Mr T ultimately agreed with Mr RR’s valuation of the E2 property on a non-disease affected basis, I accept the evidence of Mr RR. I find that the values of the E1 and E2 properties are $2,250,000 and $1,875,000 respectively.
“QQ”
Mr RR valued this property at $3,650,000. Mr V did not value this property but indicated in the joint conference report of 18 November 2015 that he “agreed in principle with Mr [RR’s] figure ...”. In that joint conference, Mr T also adopted a valuation figure of $3,650,000 on a non-disease affected basis. Accordingly, I find that the QQ property has a value of $3,650,000.
The MM Trust
The husband and wife contended for values of $114,420 and $547,420 respectively in relation to the MM Trust. It was common ground that this difference is attributable to the valuations of the PP property by Mr RR and Mr V. I have found that the PP property has a value of $695,000.
Ms NN, a single expert forensic accountant, valued the husband’s interest in the Trust as at 30 June 2014. She calculated five alternate figures, one of which was based on a value of $695,000 for the PP property. Adopting this figure, Ms NN valued the husband’s interest in the Trust at $142,420. I accept this evidence and find that the husband’s interest in the MM Trust has a value of $142,420.
Funds held in solicitors’ Trust Accounts and paid legal costs
A sum of $101,000 is held in trust by the wife’s solicitors. All of these funds were provided by Mr Y (Exhibit 19). An amount of $105,000 held in trust by the husband’s solicitors came from drawings on his loan account with the Trust (Exhibit 19). The paid legal costs of $492,270 and $347,537 of the wife and the husband respectively came from the same sources.
I am not inclined to include as assets either the paid legal fees or funds held in solicitors’ trust accounts. In the case of the wife, all of this money has been provided by Mr Y and this has no connection with funds derived from the relationship of the parties.
The husband has drawn on his loan account with the Trust to fund this litigation. The balance sheet contains a debt of the husband to the Trust in the sum of $1,231,829, which includes his legal fees up to 30 June 2014. To a significant extent, if not entirely, these drawings from the Trust have come from post-separation income generated by the efforts of the husband. It seems to me that the husband’s use of his loan account to fund legal fees is a matter most appropriately considered pursuant to section 75(2)(o).
Liabilities
The disputed liabilities were items 29 and 39 in the balance sheet, being:
29. [Mrs M] Mortgage [SS] – husband $450,000
39. Loan owing to Mr [Y] – wife $703,053.
Mortgage to Mrs M
Pursuant to an agreement reached in the Supreme Court litigation, the husband executed a mortgage in favour of his mother in a principal sum of $350,000. This sum is repayable on the first to occur of a sale of the SS property or the death of Mrs M. The husband pays annual interest of $36,000 to his mother in relation to the capital sum of $350,000 at the rate of $3,000 per month.
The husband deposed that he borrowed $100,000 from his mother in July 2014 and used these funds as working capital for the farm business. His uncontradicted evidence was that a variation of mortgage was executed to reflect the additional borrowings of $100,000.
Mrs M deposed to these loan arrangements and annexed to her affidavit of 26 March 2015 a copy of a variation of mortgage document, showing an amended principal sum of $450,000. Mrs M gave oral evidence that the husband has repaid no part of the sum of $100,000.
As noted, the sum of $350,000 is payable upon the death of Mrs M or a sale of the SS property. Although the first to occur of these two events may be some time into the future, payment of the sum of $350,000 either to Mrs M or her estate is a reality. I will treat this sum of $350,000 as a liability of the husband.
The additional sum of $100,000 was an actual advance by Mrs M to the husband and, similarly, will be repayable upon her death or a sale of the property. I am disinclined to exclude this sum from the balance sheet. I find that a sum of $450,000 constitutes a debt of the husband to his mother.
Wife’s alleged debt/s to Mr Y
In my view, there is considerable uncertainty and substantial room for doubt surrounding the wife’s alleged debt to Mr Y. Additionally, the evidence left me with suspicion that they did not separate finally in January 2014 and that they may well have an ongoing relationship.
In paragraph 10 of her affidavit the wife deposed that she commenced a relationship with Mr Y “in or about October 2010”. In paragraph 165, however, she stated: “Following our separation, throughout 2010, I formed a close relationship with [Mr Y].” The wife went on to depose that she attended a funeral in Town A in October 2010 and informed the husband of the relationship on this occasion.
In April 2011 Mr Y purchased a home at Suburb B and the wife and the parties’ children moved into the property in about June 2011. According to the wife, Mr Y moved into the property in September 2011 and they then “formally commenced a de facto relationship.” According to Mr Y, they “ceased to live in a de facto relationship in or about mid-January 2014”, when he moved out of the house at Suburb B.
Notwithstanding this alleged separation, Mr Y has paid at least the following sums for the benefit of the wife and the children:
·Private school fees and expenses for the children on an ongoing basis since 2012;
·All of the wife’s legal costs incurred in these proceedings;
·$6,000 per month for her living expenses on an ongoing basis;
·Provision of a motor vehicle and petrol card on an ongoing basis;
·Full cost of an overseas holiday in January 2015;
·Cash for a four-week overseas trip by the wife and children in 2014, using air tickets which he purchased in an auction at a charity function which he and the wife attended together;
·Full cost of an overseas trip for himself and the wife in June 2015;
·Cash in an unknown amount in 2015, which “could be as much as $60,000” according to the wife; and
·Unspecified lump sums deposited into the wife’s account at unidentified times.
Additionally, Mr Y has provided to the wife rent-free accommodation in the Suburb B property for over two years following the alleged termination of the de facto relationship. Mr Y has paid all outgoings in respect of that property since 2011, although he said in his oral evidence that the wife had recently begun to pay electricity and telephone bills.
On 20 September 2012 the wife and Mr Y signed a purported “loan agreement”, which referred to an amount of $130,285 “but this sum may increase subsequently”. The document provided for payment of interest at the Reserve Bank cash rate plus two percent per annum. There was no evidence the wife has ever paid any such interest to Mr Y.
Neither the wife nor Mr Y could provide a breakdown of the alleged loan amount of $130,285. The wife said “I obtained that figure from him” and Mr Y said “The accounts department in my office calculated the figure of $130,285”. The amount of $130,285 cannot be identified by reference to an affidavit of 31 October 2014, in which the wife purported to set out “monies advanced, loaned, transferred and/or gifted by [Mr Y] to me and for my benefit from 1 January 2009 to date” (Exhibit 5).
The wife and Mr Y entered into the purported loan agreement on 20 September 2012. On 4 October 2012 the wife filed an Application in a Case whereby she sought, inter alia, payment of a lump sum of $300,000 from the husband by way of partial property settlement.
Neither the wife nor Mr Y explained why they entered into this purported loan agreement on 20 September 2012, when he had been paying school fees and her legal costs throughout 2011 and 2012. The wife swore to the accuracy of a Financial Statement dated 13 October 2011 which contained no reference whatsoever to any debt to Mr Y (Exhibit 4).
Neither the wife nor Mr Y could explain why legal fees which he paid to Lamrocks Solicitors in 2011 were a gift, yet fees subsequently paid to Karras Partners and then Barkus Doolan are said to be a loan. Mr Y paid $85,459 to Karras Partners between February 2012 and 20 September 2012, yet apparently saw no need to enter into a loan agreement with the wife at any time during that period of approximately nine months.
The wife deposed that she inherited $70,000 from a friend in March 2012. She paid none of these funds to Mr Y, her then solicitor or C school. Instead, she was content to allow Mr Y to pay all of her legal costs and the school fees and to use this money for her own purposes.
The only purported evidence of the quantum of the alleged debt of the wife to Mr Y was a bare assertion in her Financial Statement of 23 March 2015 of an amount of $491,484. The wife gave no evidence of any breakdown or calculation of that figure. There was no evidence whatsoever advanced by the wife to support the figure of $703,053 which she caused to be inserted into the balance sheet. Mr Y likewise provided no evidence of an amount or breakdown of the quantum of any alleged loan.
The wife bore the onus of proof to establish that a loan exists between herself and Mr Y. In my view she failed to establish even the quantum of this alleged loan, let alone its terms and conditions. I find that the wife failed to establish that she has a debt to Mr Y.
Accordingly, I find that the parties’ assets, superannuation, liabilities and financial resources are as follows:
Ownership
Description
Value or quantum
($)Assets 1. Husband “LL” E1 2,250,000 2. Husband “LL” E2 1,875,000 3. Husband “QQ” 3,650,000 4. Husband “SS” 550,000 5. Husband 10 shares in “MM” Nominees P/L 142,420 6. Husband 1 share in AX P/L 803,747 7. Husband 4 shares in LL P/L 27,659 8. Husband Debt to husband from LL P/L 119 9. Husband Debt to husband from MM Trust 49,398 10. Husband NAB account 1,187 11. Husband Household contents 7,000 12. Wife Household contents 10,000 13. Wife Paintings and jewellery 10,000 14. Husband 220 CBD Energy Shares 198 $9,376,728 Liabilities 15. Husband NAB debt secured on “QQ” 2,000,000 16. Husband NAB debt secured on “QQ” 1,000,000 17. Husband Mortgage to Mrs M secured on “SS”
450,00018. Husband Debt to MM Trust 1,231,829 19. Husband Debt to AX P/L 25,000 20. Husband Debt to St George Bank 49,398 21. Wife Debt to MM Trust 10,645 $4,766,872 Superannuation 22. Husband Morris Superannuation Fund 71,837 23. Wife XX Super 4,318 $76,155
Contributions
In her affidavit of 23 March 2015 the wife deposed as follows:
25.At the commencement of cohabitation, my financial circumstances were that I had limited assets and personal effects of any significant value. I had household furniture I had acquired in London and designer clothing, the value of which was not known. Many of these items I subsequently sold to assist in meeting day-to-day living costs for myself and the children.
The husband contended that the wife was an undischarged bankrupt at commencement of cohabitation. On 14 July 2015 the husband filed a Notice to Admit Facts (Exhibit 3) which read in part as follows:
3.The Applicant, [Ms Huxley], was previously declared bankrupt in the United Kingdom.
4.The Applicant, [Ms Huxley], has not been discharged from her bankruptcy.
5.As at May 2002, the Applicant owed money to third parties including to … .
There was no evidence that the wife ever filed a Notice Disputing Facts. In cross-examination the wife said: “I believe I was bankrupted in the United Kingdom.” It thus seems to me more probable than not that the wife was a bankrupt when the parties commenced cohabitation. Taking her case at its highest, therefore, the wife brought into the relationship assets which consisted of clothing and furniture.
By contrast, the husband brought substantial assets into the relationship. He owned the LL E1 property, stock and shares in publicly listed companies. The Trust owned the PP property, plant and equipment and stock. The husband also held his interest in the company AX Pty Ltd.
The property LL E1 was transferred to the husband by his father, Mr M, at a recorded consideration of $1,950,000. A transfer marked “no duty payable” was dated 25 September 2002 (Exhibit 7).
In the case for the wife emphasis was placed on the alleged mortgage to the husband’s father of $1,950,000 in relation to the LL E1 property. The suggestion appeared to be that the LL E1 property thus was heavily encumbered by this mortgage when transferred to the husband.
The Defence to the husband’s Statement of Claim in the Supreme Court litigation stated inter alia:
... the first plaintiff requested that [Mr M] take a mortgage in his favour over Lot 1 and Lot 2 to protect the first plaintiff from any proposed de facto or other claim which might be made by his partner [Ms Huxley].
In cross-examination the husband ultimately conceded that he “must have signed a mortgage at some stage”.
There was no evidence, however, that the husband ever made any payment to his father pursuant to this purported mortgage. No mortgage document was tendered and there was no evidence of registration of any such encumbrance on this property.
The husband acquired a forty-five percent interest in the property known as “PP” via the Trust in 1997. This property was then subdivided into two lots and the Trust became the sole proprietor of the larger parcel. There was no evidence of the value of the PP property as at the date of commencement of cohabitation. The evidence indicated, however, that the property was purchased for $560,000 in 1997 and subdivided into two lots in 1999. Bank finance facilitated the purchase of this property.
The husband owned shares in publicly listed companies at the commencement of cohabitation. A National Australia Bank document (Exhibit RJM 11 to the husband’s affidavit), dated May 2002, recorded the total market value of shares in “Catuity Inc Chess Depository Int”, “News Corporation Ordinary” and “News Corporation Preferred” as $508,200 on 31 May 2002.
The wife deposed that the husband lost approximately $300,000 through share trading in 2002 (paragraphs 81 and 82). The husband’s tax returns, however, demonstrated that he received dividends in 2001, 2002, 2003, 2004, 2005 and 2006 (Exhibit 12). These tax returns indicated further that the husband received income from share trading during that period.
Margin lending statements in relation to the husband’s NAB facility (Exhibit 21) demonstrated the purchase and sale of shares in 2002 and 2003. The statement dated 31 October 2003 listed shares with a market value of $111,200. It would thus appear that the wife gave incorrect evidence in relation to losses allegedly incurred by the husband from share trading.
The financial statements for the Trust dated 30 June 2002 (Exhibit RJM 10 to the husband’s affidavit) recorded that this entity owned livestock as the date of commencement of cohabitation. The recorded value of the livestock owned by the Trust was $29,724 as at 30 June 2002. It appears that the husband owned livestock in his own right.
The D shares were sold in 2009 for a net sum of approximately $778,000. These funds were paid to the husband’s mother, as a component of the $950,000 mortgage debt resulting from the agreement reached in the Supreme Court litigation.
During the relationship the husband worked long hours as a farmer. He managed to sustain the farming enterprise despite chronic drought conditions, adverse retail market conditions and livestock disease outbreak in May 2012. The wife made no assertion that she assisted with the physical work involved in the farm enterprise.
After the separation the husband acquired the property “QQ”. The purchase price was $3,050,000, plus $121,739 for livestock and $50,000 for plant and equipment. The husband obtained a mortgage back from the vendor in an amount of $2,000,000. He replaced plant and equipment at a total cost of $610,000, after the property failed to sell at auction in 2012.
After the separation the husband paid the following amounts for the benefit of the wife and the parties’ children in 2010 and 2011:
1. Rental for an apartment in Sydney in a total amount of $41,994;
2. Total amount by way of monthly allowance for the wife of $77,500; and
3. Private school fees for the children in an amount of $63,255.
The wife has assumed the vast majority of responsibility for the children’s care since the parties’ separation in 2010.
It was common ground that the parties assumed traditional roles during their relationship. The wife was the primary homemaker and carer for the parties’ two children. The husband generated income by his operation of the farming enterprise.
I accept that the wife played a role in the renovations to the LL homestead and cottage and landscaping around the home. I do not accept that the wife’s role was as substantial as that which she asserted in her affidavit where she deposed that she engaged in “95% of the renovations to [LL].” The wife conceded in cross-examination that she was overseas for six weeks during the relevant period.
I do not accept that the wife assisted the husband with tactical decisions in relation to the Supreme Court litigation. During cross-examination, she could not recall the major components of the settlement arrangements. I do accept that, more probably than not, she provided emotional support to the husband during these proceedings.
The parties cohabited from May 2002 until January 2010, a period of seven years and nine months. During that time the husband worked hard in the farming enterprise, which he kept afloat in difficult conditions. The wife carried out the roles of primary homemaker and parent during the parties’ cohabitation and following their separation.
As Gibbs CJ observed in Mallet & Mallet (1984) 156 CLR 605 at 609:
... the contribution made by the wife as a homemaker and parent should be recognised ‘not in a token but in a substantial way’.
I am of the view that the wife’s major contribution consisted of her fulfilment of that role. As noted, I consider that the wife also made a contribution by way of her involvement in the renovations to the homestead and cottage at “LL”.
On the other hand, I am of the opinion that the significant initial contributions of the husband should carry substantial weight. Effectively the wife introduced no assets into the relationship, while the husband entered into the cohabitation with real estate, shares, stock, plant and equipment. Additionally, the husband’s work in the farming enterprise was the sole source of the parties’ income.
Counsel for the wife submitted that contribution should be assessed at 65 per cent to the husband and 35 per cent to the wife. Counsel for the wife submitted further that the husband’s proposed payment of $800,000 constitutes approximately 18 per cent of a net pool of $4,400,000. I have made findings which mean that the net pool of assets and superannuation has a value of $4,686,011, of which $800,000 amounts to some 17 per cent.
It is my view that a finding of 35 per cent overvalues the contributions of the wife. Equally, I consider that a finding which amounts to about 17 per cent places insufficient weight on the contributions of the wife. Conversely, the husband’s contributions can be considered to be undervalued and given excessive weight by such findings. Having weighed and evaluated the respective contributions of the parties, I find that contributions should be assessed at 25 per cent to the wife and 75 per cent to the husband.
Section 90SF(3) factors
The husband and wife are aged 53 and 49 respectively. They both enjoy good health, although the husband takes medication for depression. Nonetheless, he continues to operate a successful farming business.
The husband has a strong wish to continue to operate the farming enterprise. I accept that he has a familial attachment to the properties which have been held by his forebears since 1859.
Ms NN opined as follows in relation to the future of the dairy farming industry in Australia:
100.The Dairy Cattle Farming industry is expected to achieve slow but positive growth over the next five years with revenue anticipated to grow at an annualised 2.7% over the period to FY 2020.
101.Milk production is forecast to grow over the next five years assuming average seasonal conditions continue. Cow numbers and milk yields are also forecast to increase over the next five years mainly due to improved feed quality, improvement in farm management practice and research into herd, pasture, breeding and fodder efficiencies.
102.World milk prices are forecast to fall in FY 2015 due to production increases in key exporting countries which result in lifting global supply and pushing prices downwards.
Ms NN set out in her report a ‘financial performance’ table in relation to the Trust. This table read as follows:
[MM] Trust
Financial Performance
FY2008
FY2009
FY2010
FY2011
FY2012
FY2013
FY2014Forecast FY2015
Proceeds from Milk Sales
1,020,992
1,496,782
1,760,841
1,858,613
2,003,594
2,116,388
2,786,086
2,907,519
Other Farm Income
207,694
73,373
103,386
108,215
119,808
83,919
106,413
79,000
Total Other Farm Income and (Gross) Cattle / Horse Trading
1,228,686
1,570,155
1,864,227
1,966,829
2,123,402
2,200,306
2,892,499
2,986,519
% Increase/(Decrease) From Prior Year
n/k
27.8%
18.7%
5.5%
8.0%
3.6%
31.5%
3.3%
Total Other Farm Income and (Net) Cattle / Horse Trading
1,213,158
1,551,313
1,849,947
1,912,043
2,081,318
2,177,122
2,844,557
2,961,519
% Increase/(Decrease) From Prior Year
n/k
27.9%
19.3%
3.4%
8.9%
4.6%
30.7%
4.1%
Other Income
22,784
322,121
161,839
80,392
27,821
8,855
17,799
-
Total Income
1,235,942
1,873,434
2,011,786
1,992,435
2,109,139
2,185,977
2,862,356
2,961,519
% Increase/(Decrease) From Prior Year
n/k
51.6%
7.4%
-1.0%
5.9%
3.6%
30.9%
3.5%
Total Expenses
1,088,941
1,334,742
1,753,973
2,015,392
2,309,570
2,473,100
3,025,362
2,872,173
Reported Net Profit / (Loss) Before Tax
147,001
538,692
257,813
(22,958)
(200,431)
(287,123)
(163,005)
89,346
% Total Other Farm Income and (Gross) Horse Trading
12.0%
34.3%
13.8%
-1.2%
-9.4%
-13.0%
-5.6%
3.0%
Reported EBIT / (Loss)
201,522
615,549
341,367
124,538
(59,234)
(161,341)
(34,042)
N/M
% Total Other Farm Income and (Gross) Cattle / Horse Trading
16.4%
39.2%
18.3%
6.3%
-2.8%
-7.3%
-1.2%
N/M
Reported EBTIDA / (Loss)
238,643
660,766
407,696
225,224
65,201
(56,842)
86,581
N/M
% Total Other Farm Income and (Gross) Cattle / Horse Trading
19.4%
42.1%
21.9%
11.5%
3.1%
-2.6%
3.0%
N/M
I am satisfied that the husband is a skilled farmer and financial manager. Since 1992 he has worked only as a farmer, with some share trading activities in addition from time to time. In my view it is likely that he would encounter difficulty in generating income by any other means, particularly as he is 53 years old.
The wife enrolled in a real estate course in 2015 and said, during her oral evidence, that she intends to obtain a licence. The wife said that she “expects to work as a real estate agent”. She said that several agents have offered her work on a commission basis but that she “needs a basic wage.” There was no evidence as to the wife’s potential income as a real estate agent.
I have referred above to the substantial benefits which Mr Y has bestowed upon the wife. This financial largesse has continued long after the purported breakdown of their relationship on 15 January 2014. Mr Y gave no evidence that he has any intention to cease provision of financial support for the wife. In relation to the motor vehicle and petrol card which he has made available for her use, Mr Y said “I have just provided a car, I haven’t really thought about it”.
I have doubts that the wife and Mr Y have, in fact, ended their relationship for all purposes. At its highest, his evidence was that he has asked the wife to vacate the Suburb B premises at the conclusion of these proceedings. He has taken no steps to secure vacant possession of that property. I find, on the balance of probabilities, that Mr Y will constitute an ongoing financial resource of the wife.
In my view, there should be an adjustment in favour of the wife to recognise her much greater responsibility for care of the two children of the parties.
The children are presently aged 13 and 10, thus the wife will continue with this responsibility for several years.
I am not inclined to take into account, adversely, the husband’s use of drawings from the Trust loan account for payment of his legal fees. In effect, he has paid his legal costs from post-separation income. I am also conscious that the wife has enjoyed access to apparently unlimited funds from Mr Y for payment of her legal costs.
I find that there should be an adjustment of 5 per cent of the net pool of assets and superannuation in favour of the wife on account of section 90SF(3) factors.
Conclusion
I thus find that the net pool of assets and superannuation should be divided as to 30 per cent to the wife and 70 per cent to the husband. The net pool amounts to $4,686,011, of which 30 per cent and 70 per cent equate to $1,405,803 and $3,280,208 respectively. The wife holds assets and superannuation to the value of $24,318 and she has a liability of $10,645. Accordingly, the wife holds net assets and superannuation to the value of $13,673 and requires a payment of $1,392,130 to constitute her entitlement of 30 per cent of the net pool.
The husband holds assets and superannuation to the value of $9,428,656 and has liabilities of $4,756,227. The husband thus holds net assets and superannuation to the value of $4,672,338, which exceeds his entitlement of 70 per cent by $1,392,130.
The husband sought to pay the wife by instalments which are staggered over forty months, whereas she sought a lump sum payment within four months of the date of orders. I accept the submissions on behalf of the husband to the effect that a sale of one or two of the parcels of real estate will have these effects:
·achieve payment substantially only to secured creditors;
·deprive the husband of his source of income; and
·trigger taxation liabilities.
I would add that a sale of real estate would be likely to compromise the husband’s capacity to contribute to the financial support of the parties’ children. Additionally, the taxation implications of real estate sales are unknown on the available evidence.
It seems to me that each of the parties should have an opportunity to submit a Minute of Orders Sought to reflect my determination of the outcome of the proceedings. I will direct that each of the parties file and serve a Minute of Proposed Orders within twenty-one days.
Child Support Departure
This uncertainty in regard to timing of payment by the husband to the wife means that her child support departure application cannot be determined at this stage. It is my view, in any event, that the wife should utilise the process of administrative review once there is a crystallisation of the respective financial positions of the parties. To a significant extent, the respective financial positions of the parties will be unclear for some time into the future.
I certify that the preceding one-hundred and seventy-five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 July 2016.
Associate:
Date: 28 July 2016
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Remedies
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Jurisdiction
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