Kamyar & Kamyar
[2024] FedCFamC2F 1724
•4 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kamyar & Kamyar [2024] FedCFamC2F 1724
File number(s): PAC 3664 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 4 December 2024 Catchwords: FAMILY LAW – PROPERTY – Just and equitable – orders made. Legislation: Family Law Act 1975 (Cth) Cases cited: Lotta & Lotta [2017] FamCA 50
Phillips & Phillips [2002] FamCA 350
Division: Division 2 Family Law Number of paragraphs: 206 Date of hearing: 2-4 September, 24 November 2024 Place: Parramatta Solicitor for the Applicant: Mr Ndou, Lovemore Lawyers Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Shore Lawyers ORDERS
PAC 3664 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KAMYAR
Applicant
AND: MR KAMYAR
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
4 DECEMBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.Within 8 weeks from the date of these Orders, the following shall occur simultaneously:
(a)The wife shall do all acts and things and execute all documents necessary to discharge the mortgage over the real property situated at and known as B Street, Suburb D, NSW (“the B Street property”) into her sole name;
(b)The husband shall transfer all of his right, title and interest in the B Street property to the wife;
(c)The wife shall pay to the husband the sum of $309,892.
2.Prior to or contemporaneously with Order 1, the parties shall each do all acts and things to cause the removal of any caveats registered on the B Street property AND THE COURT NOTES THAT any expenses relating to the removal of caveats relating to litigation finance of the husband are to be borne by him solely and any expenses relating to the removal of caveats relating to C Pty Ltd are to be borne by the wife solely.
3.In the event of default of the due payment under Order 1, the husband and wife shall forthwith do all acts and things and sign all documents necessary to effect a sale of the B Street property and by way of consequential arrangement:
(a)The listing prices shall be as agreed between the parties and if there is no agreement as recommended by the real estate agent.
(b)The B Street property shall be listed for sale by a private treaty with a real estate agent agreed upon between the parties and if there is no agreement then the wife shall nominate three agents and the husband shall select one.
(c)In the event that the B Street property has not been sold by or before a date three months from the date of listing for sale, then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the B Street property upon the following terms:
(i)The auctioneer shall be as agreed upon between the parties and if there is no agreement then shall be as recommended by the real estate agent;
(ii)The auction shall take place within four months of the listing for sale;
(iii)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer;
(iv)The parties shall equally share payment of any auction expenses payable before the B Street property is sold;
(v)In the event that the B Street property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and the wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to procure a second auction within a further five weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
4.On completion of sale pursuant to Order 3, the parties shall cause the sale proceeds to be distributed in the following manner and priority:
(a)In payment of all costs, commissions and expenses of the sale;
(b)In payment of any council and water rates and maintenance levies outstanding in respect of the B Street property;
(c)In discharge of the mortgage;
(d)$309,892 to the husband;
(e)The balance then remaining to the wife.
5.Prior to or contemporaneously with settlement of the sale of the B Street property pursuant to Order 3, the parties shall each do all acts and things to cause the removal of any caveats registered on the B Street property AND THE COURT NOTES THAT any expenses relating to the removal of caveats relating to litigation finance of the husband are to be borne by him solely and any expenses relating to the removal of caveats relating to C Pty Ltd are to be borne by the wife solely.
6.Within 14 days of completion of Order 1 or of completion of sale under Order 3, the wife shall do all acts and things and execute all documents necessary to discharge the mortgage over the real property situated at and known as E Street, Suburb D, NSW, into her sole name, and the husband shall sign all documents presented to him by the wife to achieve such discharge.
7.Unless otherwise specified in these Orders, each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s record thereof, insurance policies are deemed to be in the possession of the party named as the life insured, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
8.Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
9.If either party refuses or neglects to sign, within 14 days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Federal Circuit and Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These are Reasons for Judgment relating to a final property hearing held before the Court on 2 to 4 September 2024 and 22 November 2024.
The applicant wife and respondent husband both appeared, legally represented.
PROPOSALS
The wife sought orders as set out in her Case Outline filed 1 September 2024. Inter alia, she sought to retain the former matrimonial home, an investment property in Sydney, her Country F property, and her superannuation.
The husband sought orders as set out in his Case Outline filed 25 July 2023 albeit with some amendments. Inter alia, he sought orders that the wife pay him $465,000 ($200,000 + $215,000 + $50,000 in lieu of a superannuation split), that he retain his property in Town G, Country F and retain his superannuation; if these orders were made the wife would retain, in particular, the former matrimonial home.
MATERIAL RELIED UPON
The wife relied upon:
(a)Her affidavit filed 21 July 2023;
(b)Her Financial Statement filed 1 September 2024;
(c)Affidavit of Mr H filed 4 April 2023;
(d)Her affidavit filed 28 August 2024;
(e)Affidavits of Mr J filed 22 February and 30 August 2024;
(f)Affidavit of Mr L filed 22 February 2024;
(g)Her Case Outline filed 1 September 2024.
The husband relied upon:
(a)His affidavit filed 21 July 2023;
(b)Response to Initiating Application filed 27 September 2021;
(c)His Financial Statement filed 21 July 2023;
(d)Affidavit of Mr K filed 21 July 2023;
(e)Affidavit of Mr M filed 9 October 2024;
(f)Case Outline filed 25 July 2023.
The following documents became exhibits:
(a)Exhibit A: Child support payment statement dated 2 September 2024;
(b)Exhibit B: Child support statement dated 25 August 2024;
(c)Exhibit C: Updated superannuation statement of the wife;
(d)Exhibit D: Deed of conveyance;
(e)Exhibit E: Three pages relating to the wife’s finance;
(f)Exhibit F: 2 x title searches;
(g)Exhibit G: Proposed minute of orders from the parties relating to caveats;
(h)Exhibit H: Annexures A and E to the affidavit of Ms N (pp 5, 6, 40, 41) subject to rulings of the Court striking out certain parts of such annexures.
EVIDENCE
The Court has considered the documentary material relied upon by the parties discussed above, and the parties’ oral evidence. The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below and under the headings, “Balance sheet”, “Contributions”, and “Section 75(2)”. Where there is any conflict between the evidence referred to below and in those sections of these Reasons, the evidence under the headings “Balance sheet”, “Contributions” and “Section 75(2)” shall take precedence.
The husband and wife both presented unremarkably in their oral evidence. They both sought to give responsive answers to questions asked of them.
The wife’s evidence
The wife swore an affidavit and gave oral evidence.
The Court does not propose to summarise her affidavit evidence or set out the entirety of her oral evidence.
The wife stated that she has not yet prepared her 2024 financial year taxation return.
The wife stated that she has a 50 per cent interest in O Company. A friend holds the other 50 per cent. The wife works for the company part-time and charges $50 per hour.
The wife’s company C Pty Ltd sells products including imported goods. The wife does deliveries for the company. The wife stated that she has provided disclosure for this company up to July 2023. She stated the business is not making any profit.
She stated the husband spends time with the children three nights each fortnight and the parties share holidays with the children.
The husband’s evidence
The husband swore an affidavit and gave oral evidence.
The Court does not propose to summarise his affidavit evidence or set out entirety of his oral evidence.
The husband agreed that he did not contribute towards the deposit for the purchase of the property at E Street nor towards the purchase price.
The husband agreed that whilst he was living in the US prior to 2014 he was not contributing towards the wife’s living expenses in Australia.
The husband stated that in 2015 he was assisting the wife in relation to the business the wife had set up in about early 2015.
The husband agreed that in 2017 the wife had travelled to Country F with the child and she was there for about six months. The husband had remained in Australia at that time.
The wife’s father, Mr H
Mr H swore an affidavit and gave oral evidence. He lives in Sydney.
He presented in a satisfactory manner and sought to answer questions responsively.
He stated that he had been in Country F for three years from late 2019.
He stated he did not know the meaning of the word “gaslighting” (this word had appeared in paragraph 7 of his affidavit which had been earlier struck out). He later stated that he did not know the meaning of the word “minimal” (this word appears in paragraph 15 of his affidavit).
He confirmed that he took about US$10,000 to Country F in 2018 which the wife had given him to give to the husband for completion of the house. He stated that the husband had then showed him around the properties and land.
The husband’s father, Mr K
This witness had sworn an affidavit filed 21 July 2023. He gave audiovisual oral evidence from Country F. His oral evidence was given in the Q Language with the assistance of an interpreter. His presentation during the giving of his oral evidence was unremarkable and he usually sought to give responsive answers to questions asked of him. On one occasion, he did not answer a question in cross examination directly and the question had to be repeated; he was asked whether or not a lawyer helped him in relation to Exhibit D (see below as to Exhibit D).
The witness stated that he does not read or write.
He stated that he recently caused a colour copy of a document with attachments relating to land in Town R to be sent to the husband. He stated that these documents related to the acquisition of his land in Town R. He stated that he had the documents in front of him. He stated that the document was a conveyance that a lawyer prepared for him. He confirmed the document was a deed of conveyance dated early 2024 between Mr S and himself as the purchaser. (The Court interpolates at this point that the deed of conveyance was then entered into evidence at the behest of the husband and became Exhibit D).
The witness was asked to confirm that monies the wife had made from the sale of goods in Country F had gone towards the construction of the house “you say you own” which was denied.
The witness denied that the house in Town T he claimed to own did not belong to himself but belonged to the husband.
The witness was asked whether the husband owned any properties that he knew in Country F. The witness stated in the negative, stating that he does not know what business his children conduct. He stated that his children do their own work, own their own property and conduct their own affairs.
LEGAL PRINCIPLES
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
As to relevant legal principles relating to valuation of assets, the Court refers to Phillips & Phillips [2002] FamCA 350, in particular at 43 to 47.
BALANCE SHEET
The balance sheet of the parties is now set out:
Ownership Description Applicants value Respondents value ASSETS Australia Properties 1 J B Street, Suburb D, NSW -
Title Reference … –$ E 1,300,000 $ E 1,310,000 2 W E Street, Suburb D, NSW - Title reference … $ E 1,050,000 $ E 989,000 3 W C Pty Limited ACN: …
W is sole director/shareholder
Assets
Vehicles owned by company:
a. Motor Vehicle 1 - $22,000.00
b. Motor Vehicle 2 - $11,000.00
Bank Accounts:
a. Commonwealth Bank of Australia Business Transaction Account #...82 = $125.00 as at 29.08.2024$ Nominal $ NK Sub-Total $ E 2,350,000 $ E 2,299,000 Liabilities 4 W C Pty Limited ACN: …
W is sole director/shareholder
Debts
Loan from U Pty Ltd ATF
U Superannuation Fund = $35,000.00
Car finance:
a. Finance for Motor Vehicle 2 =
$14,000.00
b. Finance for Motor Vehicle 1 =
$32,00.005 J V Bank Mortgage No. …
W Bank Account No.
…91 @ 29.08.2024$ 825,360 $ 825,360 6 J CBA Mortgage No: … Commonwealth Bank of Australia #...91 balance @ 28.08.2024 $ 543,456 $ 543,456 7 W Personal Loan - Commonwealth Bank of Australia
A/c no....07$ 2,233 $ 2,233 8 H Family Loan from Mr X for motor vehicle as at 29.08.2024 $ Unknown $ 4,000 9 H Borrowings from family for legal fees $ Unknown $ 45,000 10 H Y Company Litigation Funding @ 20.08.2024 $ 104,249 $ 104,249 Sub-Total $ E $1,475,298 $ E 1,524,298 11 H Town T, City HH, Country F $($550,000USD)
= AUD$808,930$ NIL 12 H Husband’s Country F property – vacant land
Z Street, Town G, Country F$($40,000USD) = AUD$58,836 $(USD$10,000) = E AUD$15,342 13 W Wife’s Country F property – vacant land but partially developed with an unfinished building/structure. AA Street, Town G, City HH, Country F ($61,000 USD) =
AUD$89,732$(USD$163,000) =
E AUD$250,074Sub-Total $ E 957,498 $ E 265,416 Total $ E 3,307,498 $ E 2,564,416 ADDBACKS $ $ Total $ NIL $ NIL SUPERANNUATION Member Name of Fund Type of Interest Applicants Value Respondents Value 14 W Super Fund 1 Member No … Accumulation – as at 29/08/2024 $ 162,739 $ NK 15 H Super Fund 1 Accumulation as at 29.08.2024 $ 45,865 $ 45,865 Total $208,604 $45,865 FINANCIAL RESOURCES Ownership Description Applicants Value Respondents Value $ Total $ $
(As per original)
As to Item 1, the jointly owned property at B Street, Suburb D, the parties differ in their values of this property but only to the amount of $10,000. The husband’s financial statement filed 2 September 2024 is silent as to the value of this property. The wife’s financial statement filed 1 September 2024 refers to her half interest in this property as being $650,000; the Court will adopt this figure and the sum of $1,300,000 shall enter the balance sheet.
As to item 2, the wife’s property at E Street, Suburb D, the parties are $61,000 apart. The Court will adopt the wife’s contended value of $1,050,000 as set out in her above financial statement as an admission against interest.
As to item 3, the wife’s company, the husband’s balance sheet refers to this company owning two motor vehicles, total value $33,000, and having a bank account balance of $125 as at 29 August 2024. In view of the parties separating under the one roof in about October 2019, it can be seen that these company assets probably do not arise out of the parties’ relationship. No value shall be ascribed to the wife’s company, whether by way of assets or liabilities (item 4). Items 3 and 4 shall be removed from balance sheet.
As to item 8, the husband’s contended family loan for a motor vehicle as at 29 August 2024 in the sum of $4,000, the husband’s affidavit filed 21 July 2023 states that his financial statement refers to a car which he purchased from his brother for $9,000 in 2021. He states that he paid his brother $3,000 initially and their agreement was that he pay to further instalments of $3,000. It can be seen that the husband’s purchase of this car in 2021 does not arise out of the parties’ relationship noting that they had separated under the one roof in October 2019. Item 8 shall be removed from the balance sheet.
As to item 9, the husband’s contended borrowings from family for legal fees in the sum of $45,000, there is no principled basis to allow this alleged borrowing for legal fees in the balance sheet. Item 9 shall be removed from the balance sheet.
As to item 10, the husband’s contended Y Company litigation funding debt of $104,249, there is no principled basis to include this alleged debt of the husband for legal fees in the balance sheet and it shall be removed from the balance sheet.
Item 11: the Town R property in Country F (“the Town R property”)
The wife asserts that the husband is the legal owner of this property.
The husband, on the other hand, asserts that his father is the legal owner of the property.
A Single Expert was appointed pursuant to the Court’s orders of 27 July 2023 (see Exhibit B to those orders) to provide advice as to the legal ownership of this property (as well as two other properties in Country F: see below as to the two properties at Town G). The Single Expert was a Country F lawyer, Mr J, with over 15 years of experience in dealing with property law matters in Country F. His expert report was dated 20 February 2024 and was attached to his affidavit filed 22 February 2024. He was cross-examined at the trial (from Country F).
Mr J ultimately found the husband’s father’s claim to ownership of the Town R property to be untenable and that the documents that the husband’s father relied upon were not sufficiently reliable or strong enough to displace ownership in the name of the husband.
In his report Mr J initially explained the legal framework regarding ownership or title to land in Country F. He stated, inter alia:
11.15… it is my considered view that establishing ownership/title to land requires an enquiry into the following: (a) the root of title; (b) length of possession of his vendor; and (c) verification and examination of any documentary or other evidence submitted in support of his claim of ownership. As state above, it must be reiterated that we do not register title to land in [Country F] but only register instruments. It is not registration that confers title but the root of title.
11.16From the documents submitted to me under this engagement (including Statements made in Affidavits by all the parties and annexures), I am left with no option but to form an opinion on the basis of the available limited documents submitted and attached to all the Affidavits and reports or other evidence gathered by me, all of which I shall deal with below.
…
11.18In practice, the means of verifying documents relating to ownership of land include: firstly, conducting a search at the [FF Authority] to ascertain that the title deed provided by the owner is duly registered and has a good root of title; secondly, by checking at the [JJ Authority] to confirm whether the Survey Plan is authentic and duly approved, registered and entered in the name of the claimed owner. Before a Deed of Conveyance or any instrument of transfer of title or ownership to land is taken to the [FF Authority] for registration, there is normally a survey plan that would have to be processed, registered, entered and approved at the [JJ Authority] with a unique identification number […]. A draft deed of Conveyance will not be accepted for registration at the [FF Authority] without an approved and entered survey plan with [identification] number. Thus, establishing or proving ownership to land would involve stages but most people believe that the more steps or processes one accomplishes, as against another, the better proof he will have as against another claimant. Thus, for example, where all other factors remain the same and none of the competing claimants has a better proof of a good root of title (e.g. by proof of Crown grant as explained above) or where the roots or long possession of both Claimant’s predecessor -in-title cannot be established, then a determination will be made on the available competing documents relied on or submitted by the rival claimants such as survey plans, and other documents or factors that may tilt the scales in favour of one party as against the other.
Mr J considered, inter alia, the reliability of documents relied upon by the husband (on behalf of his father) on the one hand and the wife on the other, having made various enquiries in Country F relating to those documents.
One of the wife’s documents was an alleged Deed of Conveyance dated late 2015, with the vendors being BB and CC and the purchasers being the husband and Ms DD. Mr J made a formal enquiry with the FF Authority in relation to this Deed however the authority informed Mr J that this Deed was not found in their record books and it was therefore not registered with their Office.
Mr J then made enquiries with the lawyer whose name appeared on the backing of that Deed, one Mr L. Mr L swore an affidavit as to certain legal assistance he provided to the parties relating to, inter alia, the Town R property. This affidavit was annexed to the expert report of Mr J.
Mr L, in his affidavit, stated, inter alia:
1.I am a [lawyer] of [Country F] duly qualified to practise law in [Country F]. I am also a qualified Arbitrator and [in a senior position] of [EE Law Firm] aforesaid and I am duly authorised to depose to this Affidavit. I am [a senior professional] with over 20 years [experience].
2.That I know [MR KAMYAR] (Husband) and [MS KAMYAR] (Wife) with both of whom I have had a lawyer-client relationship. During the course of our relationship, I was instructed, inter alia, on several matters on their behalf including to prepare Deeds of Conveyance in respect of landed properties purchased jointly by them in [Country F]. Sometimes the wife would communicate with me directly or through the husband, and in some other cases, the husband would communicate with me directly or vice versa. At all material times, I always consider instructions from either or both of them as emanating from the same couple acting together and jointly and they have never at any point in time instructed me not to deal with the other directly, or denied or refuted acts of work done on the instructions of one person on behalf of both of them or gave me reasons to believe that instructions or information given by one person must not be trusted. Thus, although I first came to know the wife who introduced the husband to me, the relationship developed and I related with both of them so smoothly that, they were treated as though they were one and the same person.
…
4.I wish to state that during the period I worked for them, sometime in 2013, on the Wife's instruction, I prepared and registered a Deed of Conveyance in favour of the Wife (as Purchaser) in respect of a piece of land at [Town G]. I can confirm that the document shown to me dated [early] 2013 and registered as No.[…] in Volume […] at page 125 (referred to in paragraph 4(ii) above) is a true copy of the Conveyance. Before annexing and using the Survey Plan, and in addition to other due diligence steps taken, I contacted officials at the [JJ Authority] to confirm whether the Survey Plan was duly approved, entered and authentic. Upon receipt of confirmation, I then proceeded with the registration process. After the process was complete, I later handed over the registered document to the wife.
5.That sometime in 2015, I was informed of another property purchased at [T Street], [Town R, City HH, Country F] and for which I was also instructed to prepare a Deed of Conveyance for registration.
6.I later received a copy of the Survey Plan in respect of the land at [T Street], [Town R] which was used to prepare the Conveyance to be registered. I can confirm that the document attached to the Wife's Affidavit at page 93/152 bearing the names [Mr Kamyar] (Plot 1) and [Ms DD] (Plot 2) is a copy of the same Survey Plan that was used. Similarly, before using the said Survey Plan and submitting it for registration, I contacted an official who worked at the [JJ Authority] then, in order to confirm the said Survey Plan was authentic, and duly entered, registered and approved at the [JJ Authority] and the responsive was in the affirmative.
7.After the Deed of Conveyance had been registered, I handed over the original copy of the Conveyance to the Husband and I did not retain any copy.
8.However I wish to observe that from a perusal of the document at page 94/152 of the Wife's Affidavit, I note that the document bears little or partial semblance to the document that I prepared. I note that the Volume and page number is unclear and looks altered as the last two numbers/digits of the Volume cannot be easily deciphered. The details of the Volume is defaced or altered as opposed to the original copy the husband collected from me. On account of the fact that the original document was handed over to the Husband, he should be in a position to help the Court and produce what I handed over to him, as the document shown in page 94 of the Wife's Affidavit was not and could not have been the document I registered and handed over to him.
…
10.I make this affidavit in response to the due diligence enquiry aforesaid and in order to state what transpired to the best of my knowledge and belief.
11.I have made all the inquiries I believe are necessary and appropriate and to my knowledge, there have not been any relevant matters omitted from this affidavit, except as otherwise specifically stated in this report.
12.I believe that the facts within my knowledge that have been stated in this report are true.
13.I understand my duty to the court, and I have complied with it and will continue to do so.
Mr J gave oral evidence. The Court does not propose to set out the entirety of that evidence.
Mr J was initially cross-examined by counsel for the husband.
Mr J stated that registration of deeds or instruments affecting land is a requirement under the relevant laws of Country F, however the registration of a document which is provided for under the relevant laws is not a guarantee of title and nor does it confer title. He stated you only register an instrument, you do not register the title. He stated that registration was of the instrument but not of the title. He stated that because a deed is not registered, it does not mean that someone may not be the owner of the property.
Mr J was asked to compare the size of the area in the survey plan attached to a Deed of Conveyance dated early 2024, discussed below, with the area in the survey plan attached to the husband’s father’s affidavit. Mr J remarked that the former survey plan, referred to a subdivision, being a plan done in 2015, compared to the survey plan attached to the husband’s father’s Affidavit which referred to another subdivision, being a plan done in 1992.
Mr J stated he has had no opportunity to verify the authenticity of the above Deed of Conveyance, and documents attached to it, with the appropriate authorities in particular JJ Authority. He stated, for example, that the attached alleged KK Authority document would need to be verified with the KK Authority as having been issued by them.
Mr J stated that the survey attached to the Deed of Conveyance dated early 2024 appeared to be two separate documents, one put on top of the other, and then copied or scanned.
Mr J was asked by the court a hypothetical question, namely whether if he, Mr J, was to go, in the near future, to the relevant government department and check whether the above Deed of Conveyance and the survey plan attached to it had been registered, whether that would change any of the opinions in his report. He stated, in response, inter alia:
WITNESS:Okay. Now, if you were to go by my reports I stated categorically that the registration of a document does not confirm title. There are instances where unscrupulous people will have gone to prepare and survey plans and register conveyances in respect of plots of land that do not belong to them, only for later for those documents to be expunged. So — and based on the relevant legal framework that I referred to in my report, and then what obtained since earlier, we just — we have registration of instrument and not registration of title. So the registration of an instrument does not confirm title. It’s the root. And based on this document, the root is not recited and it — it merely said that the vendor has been in possession for 10 years and that was why it conveyed.
And I have just exposed it now that the same 10 years period he was not in possession, which is purported as the — as his — as his possessing claim to — to — to — to his right convey claims to have been in possession for 10 years. But I’ve just proven that based on the documents previously submitted during that 10 years period there is no way it could have been in possession. There is no way because it’s — the evidence is clear now that what is recited is incorrect. It’s incorrect. But, like I said, the registration of the instrument by itself does not confirm title. It is the roots. The vendor of that Affidavit in this conveyance has not shown […], has not recited in the conveyance how he got the property for — how he got the property before he became seized in possession or — for 10 years, from whom which conveyance the person had or which master plan. Nothing like that is recited. Let me just go back to the conveyance again.
You see, if you look at the recitals the only thing that it says there:
Whereas the vendor has been seized for 10 years.
It does not say how he got it, how he became seized, how he got into possession. Someone is not born into the world and just goes into possession of land like that. You have to show how you got it, how you got there. So nothing of that is recited to show how the root of he has possessed the title. So it’s like someone just preparing a conveyance to say, okay, I can just say I’ve been on this land for 10 years I recite it, and then I register it at the basis of — for conveying. So the registration by itself, added to what is contained on the face of the document, added to the doubts that have been created by this 10 years possession as against what is stated in the affidavits would all undermine the credence that one should — or the weight that should be attached to such a document.
The wife gave oral evidence that she and the husband went to Mr L (in Country F) and that he prepared a conveyance regarding the Town R property which had been purchased by the husband and his sister Ms DD. It was put to the wife that the husband says he has never met Mr L which the wife stated was a lie. She denied that the Town R property was owned by the husband’s father or that he had paid a Mr S to purchase it.
Mr L gave oral evidence from Country F and was cross-examined.
The Court does not propose to set out the entirety of his oral evidence.
The witness stated that he had been a lawyer for over 20 years in Country F. He stated that conveyancing was one of his areas of expertise.
The witness gave an explanation as to why he did not retain a copy of the Deed of Conveyance that he prepared and which is referred to in paragraphs 5, 6, 7 and 8 of his affidavit; inter alia, he stated that when you are approached to prepare a conveyance you make two copies, and one copy is taken to the FF Authority to have it registered and they retain one copy and give the other copy back for providing to the purchaser.
The witness stated he does not know the husband’s father.
The witness was asked to provide his opinion on the authenticity of annexures A and B to the husband’s father’s affidavit, including the survey plan referred to at page 14 of that affidavit. Giving reasons, he stated that from his professional point of view, the factual matters referred in the annexures were incorrect. In particular, by reference to the survey plan bearing dates in late 2013 when set against the building permit date of early 2012, the building permit and survey plan were factually incorrect. He stated that for a building permit, the survey plan must be attached to the building permit application together with the drawings for the proposed building. He further stated, in relation to the survey plan referred to at page 14 of the above affidavit, that it was practically impossible for the Licensed Surveyor to sign the survey within three days of each other. He stated that in his opinion the above documents were highly suspicious.
The witness stated that the husband had come to his office and knows him personally. He stated that the wife had also come to his office with the husband. He stated he spoke with the husband. He stated that the husband spoke about things he was doing in Australia. It was put to the witness that he did not see proof of identity of the husband, to which the witness replied that he knows the husband. He stated that he has known the husband around visually. He stated that Country F was very small country and the city of City HH was not big. He stated the husband knows his nickname.
The witness stated that there was a previous fire in his firm’s office which had destroyed records of the firm’s dealing with clients. He then left to work in the United Kingdom for a few years and returned Country F to practice in 2022.
The husband gave oral evidence that he did not know Mr L and did not have a lawyer-client relationship with him. He did not know him personally.
The husband was asked to consider the survey plan at page 93/152 of the wife’s trial affidavit showing his name as the owner of Plot 1 in respect to the Town R property. He disagreed that it was his registered document. He could not explain how that survey plan came to be registered. He stated that the Town R property never came into his name or the name of Ms DD.
The Court finds, on the balance of probabilities, that the Town R property is owned by the husband, and not his father. In this context, the Court makes findings as follows:
(1)The Court accepts the expert evidence of Mr J, being both his expert report and oral evidence. The Court found his written report to be comprehensive, logical and persuasive. The contents of his written report, by reference to Mr J’s factual assessments and conclusions, were not shaken in cross-examination; he was calm, logical, and sought to give responsive answers to questions asked of him.
(2)The Court accepts the evidence of Mr L. His evidence was consistent with the conclusions of Mr J. His evidence was consistent with the wife’s evidence relating to the parties having engaged his conveyancing services.
(3)The Court accepts the evidence of the wife that she and the husband had engaged the conveyancing services of Mr L as described by Mr L. The Court does not accept the husband’s evidence that he did not engage the services of Mr L at any time.
(4)The husband purchased the Town R property, which was at that time vacant land, at about the time of the marriage in about 2015.
(5)The survey plan shown at page 93/152 of the wife’s trial affidavit, registered at JJ Authority, depicts the Town R property purchased by the husband, being Plot 1, and which has an area of … acres.
(The Court observes that the valuation report of Mr LL dated 20 August 2024 in relation to the Town R property, discussed below, confirms that the Town R property he valued had an area of … acres and which related to the above survey plan “with [identification number …]”.)
(6)Mr L was instructed in 2015 to prepare a Deed of Conveyance relating to the husband’s purchase of the Town R property. Mr L utilised the survey plan shown at page 93/152 of the wife’s trial affidavit to prepare this Deed. Prior to preparing this Deed he confirmed with JJ Authority that the survey plan shown at page 93/152 of the wife’s trial affidavit was an authentic record. (Mr J had also received confirmation of such authenticity in relation to this survey plan from JJ Authority following his enquiries in early 2024.) Mr L prepared a Deed of Conveyance and caused it to be registered. He later handed the original Deed to the husband and did not retain a copy.
(7)The Deed of Conveyance bearing the date late 2015 and appearing at page 94/152 of the wife’s trial affidavit bears little or partial resemblance to the Deed of Conveyance prepared by Mr L because it contains alterations and the volume and page number of that document is unclear. By reason of these alterations and unclearness, FF Authority informed Mr J that such document did not form part of the records and was not registered with it.
(8)The husband’s father’s affidavit filed 21 July 2023 refers to and annexes an alleged receipt from Mr S dated late 2012 relating to an alleged purchase of three lots situated at “[P Street, Town R]”. As stated by the expert Mr J, when a parcel of land is bought and a survey plan is drawn up, the size of land on the survey plan should reflect the size of land purchased or bargained for.
However, the size of the land on the survey plan annexed to the husband’s father’s Affidavit is more than three lots of land, and according to Mr J, is more than six lots of land. As commented by Mr J, this begs the question as to whether the land shown on that survey plan is the same as that shown on the survey plan appearing at page 93/152 of the wife’s trial affidavit (for three lots, and with the area for the husband’s Plot 1 shown as being about one-sixth of the size on the survey plan).
(9)The above survey plan annexed to the husband’s father’s affidavit with no visible identification number but dated late 2013, and signed by a licensed surveyor in late 2013, could not be traced in the records of the JJ Authority.
(10)The husband’s father’s affidavit refers to and annexes an alleged building permit from MM Authority dated early 2012. However, as stated by Mr J, that permit claims to be responding to an earlier application letter from the husband’s father dated mid-2012. Logically, Mr J asks, how is it that the date of the permit could predate the relevant application for the permit? In oral evidence, Mr J stated that even an application for renewal of the permit should still predate the date of the approval.
(11)Not without some hesitation, the Court admitted into evidence, at the behest of the husband, a fairly recent alleged Deed of Conveyance dated early 2024 between Mr S and the husband’s father. This document had only been provided to the wife’s side on the Saturday before the start of the trial. It was effectively contended by the husband that this document further evidenced the purchase of the Town R property by the husband’s father. This document was identified for the first time by the husband’s father in his oral evidence in chief. A number of comments can be made in relation to this document:
(a)No explanation was provided by the husband’s father as to why, if he had indeed purchased the Town R property, he delayed from its alleged initial purchase in 2010 (noting that his payment of the purchase price was allegedly completed in 2012) to early 2024 to have a related Deed of Conveyance formalised in relation to the alleged purchase;
(b)No explanation was provided by the husband’s father as to the fact that his alleged building permit dated early 2012 in respect to the Town R property, received from the MM Authority, appeared to be inconsistent with the recitals in the Deed of Conveyance dated early 2024: the recitals stated that the vendor, Mr S, had “been in full free undisturbed and uninterrupted possession thereof for a period upwards of ten (10) years last past at the least and exercising all rights of ownership over the same without acknowledging the title of any other person or persons whomsoever thereto or in respect of any part thereof.”
(c)No explanation was provided by the husband’s father as to the fact that the Deed of Conveyance dated early 2024 referred to the purchaser, the husband’s father, having paid to the vendor or “the sum of […]60,000 (Sixty Thousand [Country F currency]) ... on or before the execution of this agreement”, yet the husband’s father’s alleged receipt document from the vendor Mr S, dated late 2012, referred to the receipt of a far greater sum, namely “the sum of […] 60,000,000 (Sixty Million [Country F currency])”.
(d)No explanation was provided by the husband’s father as to the fact that, in relation to the area to be sold and being the subject of the alleged Deed of Conveyance dated early 2024, both that Deed and the survey plan attached to it referred to an area considerably in excess of the area appearing in the authenticated and registered survey plan pertaining to the husband’s Plot 1 and appearing at page 93 of 152 of the wife’s trial affidavit.
(e)No explanation was provided by the husband’s father as to the fact that the survey plan attached to the alleged Deed of Conveyance dated early 2024 referred to the area the subject of the survey plan being a “subdivision of [identification number …]”, which appeared to be a different subdivision to that appearing in the late 2013 survey plan annexed to the husband’s father’s affidavit which referred to a “subdivision of [a different identification number]”.
Accordingly, the Court finds that the alleged Deed of Conveyance dated early 2024 is not an authentic conveyance of the Town R property. The Court does not accept the husband’s father’s oral evidence that he purchased the Town R property. The Court finds that the Town R property is owned by the husband.
Valuation of the Town R property
There were two competing valuations of this property; the valuation of the Court appointed valuer Mr LL, and the valuation of Mr M, the husband’s appointed valuer.
The Court finds that both valuers were appropriately qualified and experienced as valuers in Country F at the time they provided their respective valuations for the Town R property (and the Town G properties discussed below.)
A) Mr LL’s valuation
Mr J, in his affidavit filed 30 August 2024, referred to, in paragraph 6a, a kerbside valuation report of this property prepared by Mr LL, valuer, being a valuer that Mr J had appointed pursuant to this Court’s previous Orders.
Mr LL’s valuation report for this property, appearing at pages 53 to 82 of Mr J’s affidavit filed 30 August 2024, ascribes a value for this property in the sum of US$550,000 (AU$808,930).
Under the heading “Basis of Valuation”, Mr LL referred to matters arising under the following nine subheadings:
(i)the location of the property
(ii)natural qualities of the land area
(iii)accessibility of land
(iv)physical attributes of the property (size, design, etc)
(v)age of buildings/structures
(vi)assessment of similar properties in the area and their estimated value (real estate prices) (general)
(vii)general development of the community including amenities and utilities around the community
(viii)income and development potential
(ix)government regulations.
Under (i) the location of the property, Mr LL stated the property was located about 10 km from the CBD and about 5 km from a well-known scenic area where most of the hotels and entertainment places were located. He stated that the location of the property was a major determinant factor in the valuation of properties. He stated that the value of the property in the CBD of City HH was different from the other location, it is close to sought after areas in Country F. He stated that the value of properties along the most visited areas (NN Region for example) is higher than those in other locations. He therefore took the location component very seriously in assessing the value of the property.
Under (ii) natural qualities of the land area, he stated that risk factors such the topography of the land were not apparent. He stated the topography did not seem problematic. During his visit with his team he observed that two solid structures made of concrete had been erected on the property already. He also took note of the size of the land on which the property was built as shown on the survey plan submitted.
Under (iii) accessibility of land, he stated there was a well constructed feeder road (constructed with asphalt) from AA Street, leading to the property. He noted the availability of public transportation and concluded that the property was very accessible.
Under iv) physical attributes of the property (size, design, etc), he gave a detailed description of the physical attributes of the property. In this context he referred to the property containing two buildings on it, with one slightly smaller than the other. He stated that both structures appeared to have been recently built with modern design, materials and finishing. He made certain specific observations of the buildings, including:
·the buildings having double floors
·the structural makeup of the building was of concrete block work in pillars, with established landscaping and brick walls
·both buildings having standard elevation and height, with pillars in some areas
·there was a perimeter fence around the property with a minimum of two gates of standard height to secure the property
·he stated that no access was allowed/facilitated into the property and as such they could not (save as stated in the report) make an assessment on the interior of the property (including such items as fixtures and fittings, plumbing, electricals, interior doors, rails, ceilings, tiles etc.)
Under (v), age of buildings/structures, he stated that both structures appear to have been recently built. He stated that, similarly, the area called Town R is an area that is considered and known to be newly developed, as rapid construction was discovered in the last 15 to 20 years. He stated that this was another factor that counted positively in the valuation of the property.
Under (vi) assessment of similar properties in the area and their estimated value (real estate prices), he stated that this method was usually one of the quickest and easiest to get an idea about land value in an area and was used by estate brokers and agents in Country F. He noted peculiar features of this property including its specific location, size and number of buildings, age, size of the land area, topography, design and materials used, accessibility etc. Town R has neighbouring villages or areas where he looked at the value of properties available for sale. These areas, like Town R, also have access to the prime areas, have similar topography and other features found in Town R. He stated that some of the publication regarding properties put up for sale with their prices would be annexed to his report.
From page 75 to page 82, Mr LL attached photos and descriptions of at least several properties described at page 75 as “comparison properties”.
One property in the area, with a perfect view, situated on six lots, had an asking price of $1.5 million which was negotiable. This property was a multi-storey building.
Another property, described as majestic house for sale near AA Street, was described, inter alia, as a multi-story building fenced with security wire, one completed basement with amenities, spacious living rooms, 4 bedrooms, however no price was stated.
A further property described was a house for sale, which was described as four bedrooms, four bathrooms, classic house on a strategic environment with 4 lots, for either business or residence, with swimming pool. Price was described as “$250,000 best”.
A further property being a multi-storey home with an asking price of $400,000 contained few details.
A further property being a single level home at Town T, had few details with an asking price of “[Country F currency] 180,000”.
A further property was described as a 2-storey house for sale at Town T, having a multiple car garage on 4 lots. It was described as being 10 miles from City HH. Six bedrooms and a number of ensuites were described. He described quarters each with a toilet, bedroom and living room. The asking price was $285,000 negotiable.
Under (vii), general development of the community, including amenities and utilities around the community
Mr LL stated that Town R is located off AA Street, and AA Street (from start point to its end) is bounded by scenic areas. He stated that Town R is not only a fully developed area with amenities but is also considered appreciably populated. He stated that Town R and its environs have a supermarket, shopping centres, police station, schools, gas stations etc. all of which help to add value to the property. He stated the area boasts of thousands of completely built and occupied houses, most of which are residential.
Under (viii), income and development potential, Mr LL stated that from his knowledge and experience in the property sector, he believes that should the property at Town R be put up for rent, it would attract a decent rental income. He stated the entire property may be rented either by a single entity/company or person taking exclusive possession of it, or may be rented separately per structure or apartment (depending on how the floors are partitioned from within). He confirmed that he could not gain access to see and evaluate the interior of the property to confirm how many apartments or rooms or utilities are in the property.
Under (ix), government regulations, Mr LL stated that to the best of his knowledge there were no known regulations that affected or may require the putting down of the whole or any part of the property, or that may restrict the conversion of the property to another design or to one that may accommodate more stories or floors, if the usual building permit is obtained which is invariably granted for such property.
Under the final heading, “Summary of Valuation”, Mr LL stated, inter alia, that the total land area of the entire property is as per survey plan with [identification number …].He stated that the total floor area occupied by the buildings cannot be ascertained.
Mr LL stated that, “Value of Develop Land […] = USD$36,00.00 (sic US $36,000) or [Country F] 754,902.”
Mr LL stated that the open market value of the property, including the land and two structures thereon was US $550,000.
Mr LL gave oral evidence. The Court does not propose to set out the entirety of his oral evidence.
Mr LL stated that he was assisted by two associates from his office in relation to the preparation of his report. For example, Mr LL and the two associates attended at the property together and the associates helped Mr LL in taking photographs.
The husband submitted that Mr LL’s valuation evidence was extremely problematic. Inter alia, he submitted that the witness gave no adequate methodology for his particular valuation. He submitted that the “comparison properties” documentation attached to his report did not refer to any concluded sales and the monetary figures set out in that documentation were merely asking prices. He submitted that the “comparison properties” were, according to the witness, a “guide” however the witness did not explain how these comparison properties were “a guide”. In summary, the husband submitted that it was hard to understand how the witness came to a value for the Town R property in the sum of US$550,000.
B) Mr M’s valuation
Mr M’s valuation was attached to his affidavit filed 9 October 2024. He was cross-examined. Mr LL had been cross-examined prior to 9 October 2024. No application was made by the wife to further cross-examine Mr LL after Mr M’s evidence was given.
At the outset, the Court observes that this valuer also conducted a kerbside valuation of the Town R property, however he worked off an alleged survey plan attached to an alleged Deed of Conveyance dated early 24 (Exhibit D) being an alleged property at Town R.
Again, the Court finds that the Deed of Conveyance dated early 2024 is not an authentic conveyance of the Town R property. The Court has found that the evidence of the Court appointed expert, Mr J, should be accepted, inter alia, that the relevant and authentic survey for the Town R property is the survey found at page 93 of 152 of the wife’s affidavit filed 21 July 2023 which refers to the husband’s property at Town R having a smaller area.
Mr M stated that:
In term of property for sale it’s depend on the status of the property, most time property on [AA Street] within 2 […] lots it go for $150,000-$230,000 but if, it’s of (sic off) [AA Street] it can command value of $100,000-$180,000 (see attached properties for sale currently on the market in these zone).
Mr M’s report, at page 62, sets out a zonal map of Country F, being a map prepared by his office, and which, in relation to the Town R property, refers to Town T which region is within a particular zone .
The Court interpolates at this point that the Town R property is not on AA Street and is off that road, being situated at T Street, Town R (see the reference to this location in the survey plan found at page 93/152 to the wife’s affidavit filed 21 July 2023).
Mr M then referred to the market values of 3 “Properties available for sale [in City HH]” and the market values of “Some valuations we have undertaken over the years” being a further 3 properties, 2 of which were located on AA Street, Town T (noting the Town R property is situated at T Street, Town R).
As to the “Basis of Valuation”, Mr M stated:
The Valuation of the property is based on the following:
i) The existing use, value as at the date of this certificate;
ii) The existing structure inclusive of its site value; and
iii) The floor area as contained within the external walls exclusive of the internal partition walls.
As to the property’s location and description, Mr M stated, inter alia:
The property comprises of two buildings (see attached pictures). It is located at [T Street, Town R] at [City HH] approximately [8] miles from the famous [location] (generally perceived as the centre of [City HH]’s Central Business District) approximately 30 minutes drive in normal traffic.
Mr M had then gone on to refer to his “Cost method” which referred to a total estimated floor area of the buildings, the value of the buildings being US $95,000, the developed residential land (7 lots) being US $60,800, the perimeter fence, US $4,133, with a total open market value for the property of US $159,933, say US $160,000.
The Court interpolates that Mr M’s above valuation for the buildings on the Town R property, US $95,000, does not sit comfortably with his valuation for the incomplete residential building on the wife’s Town G property (see the Court’s discussion below as to that property) in the sum of US $120,000 (estimated floor area in a lesser figure).
In oral evidence, Mr M was questioned as to some of the comparison properties that he referred to in his report. Inter alia, he acknowledged that some of his comparison properties containing structures were, in part, still in a state of construction, however this was the reason that he provided a range of comparison properties for consideration.
Mr M confirmed that he considered a number of factors in coming to his estimated valuation, including the location of the property, the natural qualities of the land where the property is located, and the accessibility of the property.
Further discussion
The Court observes that neither valuer was afforded access to the inside of the property by the husband’s family members who reside at the Town R property (see paragraph 15 of the wife’s affidavit filed 28 August 2024 and Mr LL’s comments under paragraph 9(iv) of his report) and accordingly detailed observations of the inside of the building structures could not be made.
The husband submitted that Mr LL gave no adequate methodology for his particular valuation, with the Court observing that he did list a range of nine factors that he considered in reaching his valuation; see his discussed nine factors under the heading “Basis of Valuation.”
However, there is some force to the husband’s submissions that:
·Mr LL’s list of comparison properties merely referred to the asking price of those other properties as opposed to their last sale price. Some of the comparison properties were quite different in block size (e.g. 4 to 6 lots) noting that the Town R property was only less than 2 lots and some of those properties had residential buildings which appeared to be of greater size than the subject property (e.g. multi-storeys).
·Mr LL had found that the value of the developed land for the Town R property was US $36,000 and had then found that the open market value of that property, including the land and two structures thereon was US $550,000, but had failed to explain clearly, whether by reference to his comparison properties or otherwise, how he had reached the figure of US$550,000.
As to Mr M’s valuation, again the Court observes that his valuation had assumed that the Town R property comprised more than 7 lots (based upon a survey briefed to him being the survey attached to the Deed of Conveyance dated early 2024, exhibit D; see the Court’s discussion above including its finding that this Deed of Conveyance was not an authentic conveyance of the Town R property) whereas in terms of the wife’s relevant survey for the Town R property, which the Court expert Mr J found was authentic, it only comprises less than 2 lots. And again, the Court has a concern with Mr M’s valuation of US $95,000 for the completed buildings on the Town R property when he had valued the incomplete building on the wife’s Town G property at US $120,000, which latter building was stated to have a smaller floor area.
If the Court then does not place any significance on Mr M’s specific valuations for the Town R property found at page 57 of his affidavit, one asks whether there is any helpful valuation evidence otherwise given by Mr M in relation to the Town R property? In the view of the Court there is such evidence, pertaining in particular to his evidence of usual sale price ranges for properties on and off AA Street and his related evidence of comparison property values.
The Court is satisfied that Mr M considered that relevant factors applicable to the Town R property included its location (inter alia, about 8kms from the CBD of City HH), and the natural qualities of the land where the property was situated.
Further, Mr M gave evidence (paragraph 9 of his affidavit) that because he was not able to gain access to the Town R property, he conducted a comparison market value of properties in the same zone.
Again, Mr M’s report (at page 36) stated, inter alia, that most of the time properties on AA Street within two lots sell for US $150,000 to US $230,000, but if it is off AA Street, it can command values of US $100,000 to US $180,000, and, in this context, he specifically referred to certain “attached properties for sale currently on the market in these zone”; the Court observes that this evidence of Mr M relating to sale price ranges was not specifically challenged. Mr M’s comparison residential properties (with stated market values) for locations off AA Street, Suburb OO, City HH and for locations off AA Street, Town T, City HH, were consistent with this evidence relating to sale price ranges. (The Court notes that Mr M was questioned as to certain physical attributes of some of his comparison properties attached to his affidavit.)
At this point the Court should state that the comparison property evidence of Mr LL was not persuasive, particularly when set against and contrasted with the comparison property evidence of Mr M because, for example, Mr M had referred to comparison properties of an approximate size to the Town R property (ie within 2 lots), and with buildings of no greater than 2 storeys (noting that Mr LL had referred to the Town R structures having double floors). Further, Mr M had referred to the market values of his comparison properties.
Turning to the comparison properties referred to by Mr M, the property on AA Street, Suburb OO for $235,000 appears to be a property of fairly recent construction (as is the Town R property) which is fenced paved, and gated, and it is a recent market value (mid-2024). However, Mr M stated in oral evidence that this property’s land was very big, which evidence was consistent with the photograph of this property showing a spacious compound. The Court observes that this property is situated in Suburb OO not Town T; Suburb OO is situated in another zone, which appears to be closer to City HH.
Mr M’s two comparison properties on AA Street Town T, with respective values of US $150,000 and US $180,000, which the Court infers from Mr M’s above evidence relating to sale price ranges are both within 2 lots, also appear to be properties of fairly recent construction, with both building structures containing some building features similar to the Town R property (for example, similar balconies). The property valued at US $150,000 has grounds which appear to be still under construction, with the Court noting that the Town R property appears to be complete in this respect. The Court observes that the Town R property is situated at T Street, Town R.
Mr M’s comparison property on AA Street, Suburb OO (compared to the Town R property at a greater area), comprises two residential buildings “within 1 […] lot”. It has a market value of $177,000, contains building features similar to the Town R property, albeit one building at this property appears to be still under construction. The Court observes that this property is situated in Suburb OO not Town T.
The Court, in reaching a valuation figure for the Town R property, takes into account, in particular:
(a)the above discussions relating to its concerns with Mr LL’s evidence,
(b)the above discussions relating to Mr M’s evidence, including the discussions relating to Mr M’s evidence as to sale price ranges and his comparison property material. As to this comparison property material, the Court observes that Mr M referred to the market values of 2 properties situated on AA Street, Town T, noting that the Town R property is situated at T Street, Town R,
(c)the Town R property being less than 2 lots, depicted in photographs appearing in both Mr LL and Mr M’s reports, with the property and buildings having external features as discussed by Mr LL in his report.
Doing the best it can, the Court finds that the value of the Town R property is about US $180,000 or AU $277,200.
Item 12: the husband’s Town G property
For the reasons stated by Mr J in his expert report filed 22 February 2024, including at paragraphs 13.0 to 13.7, the Court finds that this property is owned by the husband.
Valuation of the husband’s Town G property
This property is vacant land.
Mr J, in his affidavit filed 30 August 2024, referred to, in paragraph 6b, a kerbside valuation report of this property prepared by Mr LL, valuer, being a valuer that Mr J had appointed pursuant to this Court’s previous orders.
Mr J had referred to a survey plan for this property with an approved identification number … in the name of the husband and which had been previously authenticated by the JJ Authority. Relevantly, for the discussion which now follows, that survey plan, appearing at both page 91 of 152 of the wife’s affidavit filed 21 July 2023 and at page 28 of 74 of Mr M’s affidavit filed 9 October 2024, refers to this property as being situated “[AA Street, Town G]”.
Mr LL’s valuation report for this property, appearing at pages 83 to 103, of Mr J’s affidavit filed 30 August 2024, ascribes a value for this property in the sum of US$40,000 (AU$58,836).
Mr LL, in the body of his report, takes into account, under the heading “Basis of Valuation”, similar factors that he had taken into account in relation to the Town R property (such as location of the property, and accessibility). Under the heading, “Date/Period of Valuation” Mr LL states that he was unable to locate the property as no contact was provided by either party. He stated under the heading, “Date of inspection/Visitation and observation”, that one visit was made to the area called Town G where the property was said to be located, and this was done in mid-2024. He stated that despite not being able to locate the exact property, observations were made of the area and properties around in the area, initial assessment was done, notes and photos taken.
However, and importantly, he refers to this property as being situated at “[AA Street, Town G]”, which is contrary to the description of this property’s situation as described in the above relevant survey plan for the property which, again, is stated to be, “Situated [off AA Street, Town G].” Having stated that this property is situated at “[AA Street, Town G]” he then goes on to state that a piece of land situated on the main road of any of the towns or areas tend to have more value than those in the interior due to their potential for huge returns from commercial activities. He states that almost all properties on AA Street are considered prime properties and are highly demanded.
Under the heading, “Summary Valuation”, he refers to the total land area of the property as per survey plan being approximately two lots. Under the heading, “Open market value”, he refers to the value of this land, at US $20,000 per lot, at US $40,000.
In light of the above discussion, the Court is not persuaded that Mr LL has valued the correct property.
In any event, the comparison property evidence of Mr LL for this property was not persuasive; for example he referred to a much larger property, and also referred to commercial properties. The comparison properties he referred to merely had asking prices and not recent sale prices or relevant market values.
On the other hand, the husband, relying on Mr M’s valuation for this property, contends a lesser value for this property namely the sum of US $10,000.
Mr M, in his report, describes the location of the property, inter alia, as being situated off AA Street, Town G, and importantly, refers to an attached survey plan for the property being the survey plan attached to the wife’s affidavit filed 21 July 2023 at page 91 of 152, which survey plan was regarded as authentic by Mr J, and which refers to the properties situation off AA Street, Town G. It is thereby apparent that Mr M not only visually inspected this property but inspected the correct property.
Mr M, in his report, refers briefly to the basis of his valuation, assumptions adopted by him, location and description of the property, and then, under the heading, “Cost method” refers to the open market value of the vacant land (around 2 lots), US $7,995, perimeter fence $2,156, with the total open market value of the property being US $10,000.
Mr M was not cross-examined in relation to his valuation for this property.
The Court accepts the valuation report of Mr M, and item 12 in the balance sheet shall have a value of US $10,000 (AU $15,400).
Item 13: the wife’s property on AA Street, Town G
For the reasons stated by Mr J in his expert report filed 22 February 2024, including at paragraphs 14.0 to 14.3, the Court finds that this property is owned by the wife.
The wife admits this property is owned by her; see her Financial Statement filed 1 September 2024, clause 36.
Valuation of the wife’s Town G property
Mr J, in his affidavit filed 30 August 2024, referred to, in paragraph 6c, a kerbside valuation report of this property prepared by Mr LL, valuer, being a valuer that Mr J had appointed pursuant to this Court’s previous orders.
Mr LL’s valuation report for this property, appearing at pages 104/137 to 129/137, of Mr J’s affidavit filed 30 August 2024, ascribes a value for this property in the sum of US$61,000.
The husband contends a greater value for this property namely the sum of US$163,000 through the valuation evidence of Mr M.
Neither Mr LL nor Mr M were cross-examined in respect of this property.
It would appear that both valuers have identified the correct property situated on AA Street, Town G. Mr M attached the relevant survey for this property at page 15 of 74 of his affidavit filed 9 October 2024, and which refers to the area of this property. Mr LL, in his report, referred to the property’s area as being the same acreage, “as shown on the survey plan submitted”.
Mr LL stated that his valuation for this property was conducted in mid-2024. He was able to locate the property. However, a kerbside valuation was conducted given that the property did not have any occupied or furnished house constructed on it as yet.
A visit to the property was made by Mr LL in mid-2024. Observations were made, on-site assessment was done, notes and photos taken. The valuer referred to the documents relied upon him including relevant aspects of the single joint expert report of Mr J and relevant documents relating to the property.
Mr LL stated that the property’s location was considered being, inter alia, about 17 km from the CBD. The natural qualities of the land area were considered. The size of the land was as shown on the survey plan submitted. The accessibility of the land was considered in some detail; the property was considered to be accessible. He referred to the existence of an unfinished building/structure made of reinforced concrete foundation and cement block walls. He stated that from his observation, the property was unoccupied as the building on it was largely unfinished.
Mr LL stated that his assessment was thus mainly based on the size, location and other physical attributes of the land and the estimated value of the unfinished structure. He stated that due to the fact that the said structure was far from being completed, he could not accurately tell how big the proposed/intended finish structure would look like (including the number of floors, rooms, design or utilities in the property etc).
Mr LL considered, inter alia, matters relating to the general development of the community, including amenities and utilities in and around the community. He attached pictures of the property.
Mr LL, under the heading “Summary of valuation”, referred to the property’s open market value being for the value of developed land (about 3 lots), US $7,000 per lot totalling US $21,000, the approximate value of unfinished building/structure being US $40,000, with the total open market value of the property being US$61,000.
On the other hand, the valuation report for this property by Mr M is a very brief report. He refers to this property as a residential property being a three-bedroom home accommodation comprising kitchen, front and rear balcony, living and dining room, and states the outbuilding includes a security post and water tank stand within a compound, however he does not provide any information as to how he is aware of the internal layout of this property. He does not state that he conducted an internal inspection as opposed to a kerbside valuation.
He states some brief facts relating to the construction of the residence upon the property and as to its “state of repair” he merely states that the property is a work in progress and refers to the attached pictures of the property. He then goes on, under the heading “Cost method”, to refer to an estimated floor area of the building without giving any information as to how that estimate was made, and proceeds to value the building at US $120,000, a perimeter fence of US $12,675, and partly developed residential land (three lots) valued at US $30,000, with a total open market value of US $163,000.
In the view of the court, the valuation report of Mr LL is the more persuasive as to this property, and which contains significant detail as to how his valuation was made. Again, Mr LL estimates the approximate value of the unfinished building/structure as being US $40,000 as opposed to Mr M who values the building at US $120,000. However, Mr M, as to the value of the building, does not state that he conducted an internal inspection of the building (with the Court observing that he annexed no internal photos of the building on the property), and nor does he state the level of completion or otherwise of the building’s internal spaces. In passing, as to Mr M’s valuation of the building at US $120,000, it is difficult to reconcile this value with his valuation of the buildings on the Town R property at US $95,000, noting that he had ascribed a lesser estimated floor area for the buildings at the wife’s Town G property.
In the view of the court, the description of the physical attributes of the property made by Mr LL, noting that he had conducted a kerbside valuation, was appropriately conservative, compared to the unconfirmed description of the building given by Mr M (again, Mr M gave no information as to how he was aware of the internal nature of the building/structure, nor its level of completion, and he annexed no internal photos of the building/structure).
The Court accepts the valuation report of Mr LL, and item 13 in the balance sheet shall have a value of US $61,000 (AU $93,940).
The Court has adopted an exchange rate from USD to AUS of 1.54, being the exchange rate of the Reserve Bank of Australia as at 26 November 2024.
As to item 14, the wife’s superannuation interest, Exhibit C, being an updated superannuation statement of the wife, and tendered by her, refers to the wife’s superannuation balance being $209,537. This amount shall enter the balance sheet.
The final balance sheet accordingly will be as follows:
BALANCE SHEET Ownership Description Value Assets 1 J B Street, Suburb D, NSW $1,300,000 2 W E Street, Suburb D, NSW $1,050,000 3 H Town R property $277,200 4 H Husband’s Town G property $15,400 5 W Wife’s Town G property $93,940 Total $2,736,540 Liabilities 6 J V Bank mortgage $825,360 7 J CBA mortgage $543,456 8 W Personal loan $2,233 Total $1,371,049 Superannuation Member Name of Fund Type of Interest Value 9 W Super Fund 1 Accumulation $209,537 10 H Super Fund 1 Accumulation $45,865 Total $255,402 Net Total Assets Total $1,620,893
Accordingly, the parties’ Australian property assets total $2,350,000. The Country F property assets total $386,540. Their liabilities total $1,371,049. Their superannuation assets total $255,402. The net total assets including superannuation thus totals $1,620,893.
SECTION 79(2) OF THE ACT
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
CONTRIBUTIONS
The parties married in 2012. They separated under the one roof in about October 2019; the Court prefers the wife’s detailed evidence in this regard.
Again, a significant issue at the trial was the ownership of certain real estate properties in Country F, in particular the Town R property; the court has made ownership findings above in these Reasons. The approximate date of purchase of such properties is relevant under this Contributions heading. The parties gave evidence, originating in their trial affidavits, as to the dates of purchase of these properties; this evidence of the parties appeared to be unreliable when one compared such evidence with the objective documents in evidence. Accordingly, the Court has viewed the parties’ evidence in this context with some caution and has been assisted by the objective documents in evidence.
One example was the wife’s evidence that the husband had acquired the Town R property (land only) at about the time of marriage which was inconsistent with the survey plan for that property seen at page 93 of the wife’s affidavit (the survey plan had an identification number of “[…]” which is a 2015 document of the JJ Authority in Country F). Her evidence in this regard was also inconsistent with the affidavit evidence of the Country F solicitor Mr L who referred to conveyancing dealings in 2015 in respect to the Town R property. Common sense suggests that if the husband had purchased this property at about marriage date in 2012 the survey plan and Deed of Conveyance for such purchase would likely have been completed before 2015.
A further example was the husband’s evidence that he thought he purchased the property on AA Street, Town G, in 2017, yet the registered survey plan is numbered … being signed by the GG Authority in 2019 (see the reference to this survey plan in the JJ Authority’s letter to Mr J of early 2024).
The Court will now proceed to make relevant contribution findings.
At marriage commencement, the wife had superannuation. At about the time of marriage, or very shortly thereafter, she likely purchased the property on AA Street, Town G.
At marriage commencement, the husband had superannuation in the US. When he cashed it in 2015 he received US $24,790. He used these funds in 2015 to pay for expenses (such as air fares, personal clothing and gifts) and to purchase goods for sale in Country F (see the Court’s discussion below relating to the parties’ work in relation to the business initially established by the wife in early 2015).
In mid-2012 the wife purchased a property at E Street, Suburb D, for $424,000. She paid $25,403 from her savings for part payment of the deposit, together with a loan of $411,200 from PP Bank. The husband was in the US at this time. The wife paid the mortgage repayments until around 2016.
After the marriage, the husband lived in the US for almost 2 years and worked there. During this time the wife was living in Australia. The husband returned to Australia in 2014. He did not obtain formal employment initially. He obtained employment in about mid-2016. However he assisted the wife in the above business in 2015 and thereafter up to about separation.
After the birth of the parties’ first child in 2016 the wife went on maternity leave through her employer. She returned to work as a health care worker casually after maternity leave.
In February 2015 the wife took out a personal loan with the PP Bank in the sum of about $14,750. She also borrowed money from her uncle for about $8,000. She used these funds to set up a business for Country F goods between Australia and Country F. The husband assisted the wife in relation to this retail business in Country F. The profits from the sales were contributed towards finishing building works on the Town R property.
During the relationship the wife worked as a health care worker and again, in 2015 she also began work in the business.
In about 2015, the Town R property was purchased in the husband’s name. It was then vacant land. The purchase monies were likely contributed by the parties either directly or indirectly; the husband was assisting the wife in the business, and the wife was in employment in Sydney. Later, from about 2018, the parties caused residential construction to commence at the Town R property; see below.
The husband started part-time work as a support worker about the end of 2016. His income was utilised to contribute towards living expenses, including mortgage repayments, after rents from the wife’s family were utilised. The husband ceased contributing towards mortgage repayments in about November 2022.
In about late 2017 the parties purchased a property at B Street, Suburb D. The purchase price was $960,000. A loan with V Bank was taken out for $911,797. Equity in the E Street property, and related refinancing through the NAB bank, was used to assist in the purchase of this property. The parties and the wife’s cousin moved into this property. Subsequently the E Street property was rented out and used as an investment property.
The above refinancing through NAB bank, together with profits from the business was used to pay the building cost of the buildings on the Town R property. In about 2017 the wife had taken large shipping containers to Country F with her to sell goods there and those funds were used to help pay for the construction of the buildings on the Town R property. The wife was responsible for organising payment of trades for construction of the buildings on that property together with supervising the trades during construction.
In about late 2019 the husband purchased a property being vacant land on AA Street, Town G, in Country F (discussed under Balance Sheet). The parties had separated, again, under the one roof in about October 2019. The purchase price was about US$6,000. It is likely that these funds were effectively contributed to by both parties, noting that the date of purchase was at about the time of the parties’ separation.
During the parties’ relationship the wife was the primary carer of the children. The husband assisted with the care of the children when he was not working in employment and was in Australia and not in Country F. He assisted with the care of the children when he was in Australia and the wife was at work. The wife had sole care of the children when she was with them in 2017 in Country F for about 6 months.
In May 2022 the wife was ordered to have sole occupancy of the property at B Street, Suburb D. The husband left that property at that time.
During the parties’ relationship the parties both carried out household duties. The husband, during the relationship, travelled to Country F about each alternate year for about two to three months on each occasion. The husband did not work in formal employment in Country F on these occasions. The wife did not travel to Country F as often as the husband.
In 2020 the wife decided to restart the business so she could financially support the children and manage living expenses. It appears that by about the time of separation this business was not being operated. She registered a company C Pty Ltd for this purpose. The business was similar to the one operated during the parties’ relationship. The wife is the sole director and shareholder. The company owns two motor vehicles. The company had modest cash funds in mid-2023. It had debts of $26,000, and a motor vehicle finance debt of some $73,447 at about that time.
In mid-2022 the wife registered a business, O Company. It commenced operations in 2023.
Post separation, the wife remained the children’s primary carer with the husband assisting with such care. Following orders of May 2022, the husband spent about three nights each fortnight with the children, and through orders of February 2023 some extension of this time was ordered. Settlement of the parties’ parenting proceedings concluded on 27 July 2023 resulting in the children spending time with the father four nights each fortnight during school terms. The wife did not receive child support from the husband in 2020. Thereafter the husband paid child support but he was in arrears, for example, $1,365, in about mid-2023.
After November 2022, the wife was solely responsible for the mortgage repayments on the Suburb D properties, noting that rental income was being received for at least the property at E Street.
The wife contended that her contributions should be assessed at 70% to the father’s 30%. The husband contended that the parties’ contributions should be assessed as equal.
Taking into account all the above discussed matters, and viewing the parties’ contributions holistically, the Court finds that the parties’ contributions to the parties’ assets of $1,620,893 should be assessed as to wife at 55 per cent to the wife and 45 per cent to the husband, which results in a disparity of $162,090 in the wife’s favour.
SECTION 75(2) OF THE ACT
The wife is aged 37 years. The husband is aged 46 years. Both parties appear to be in reasonable health.
The children are aged 5 and 8 years. The wife will continue to be the child’s primary carer, with the husband to spend time with the children for four nights each fortnight during school terms and during school holidays. The husband pays formal child support however he is in arrears in the sum of $2,339. He has incurred numerous penalties for overdue child support.
Both parties work in employment. The wife, additionally, operates two businesses. Her Financial Statement filed 1 September 2024 refers to a total average weekly income of some $4,038. The husband’s Financial Statement filed 2 September 2024 refers to total average weekly income of some $2,138. The wife’s income earning capacity is probably greater than the husband’s earning capacity accordingly.
The business O Company lent $75,000 to the wife to assist her in paying legal fees for these proceedings. The wife borrowed about $30,000 from her company C Pty Ltd to pay legal fees owing to her former solicitors.
The husband submits that the wife failed to provide updating figures regarding C Pty Ltd. He made a similar submission relating to the business O Company. The Court is not persuaded, on the evidence before it, that this company or O Company have significant assets other than presently disclosed in the balance sheet (which assets do not arise out of the parties’ relationship). The Court observes that this company is indebted in various sums which indebtedness did not enter the balance sheet.
There is some force to the husband’s submission that the business O Company and the above company, owned and operated by the wife, represent financial resources available to the wife. For example, the wife has obtained loans from these entities, and she is able to earn income utilising these entities.
The wife’s superannuation is about $209,537. The husband’s superannuation is about $45,865.
The wife contended that there should be an adjustment in her favour of 15 per cent. The husband contended that there should be no adjustment to either party.
Taking into account the above matters, there should be an adjustment of 5 per cent in favour of the wife.
This results in an adjusted contributions finding of 60 per cent in the wife’s favour and 40 per cent in favour of the husband. This results in a disparity of $324,178 in favour of the wife.
JUSTICE AND EQUITY
Pursuant to the Court’s adjusted contributions findings, the wife should receive $972,535 (60 per cent of $1,620,893) and the husband should receive $648,357 (40 per cent of $1,620,893).
Should the wife retain:
(a)B Street, Suburb D: $1,300,000,
(b)E Street, Suburb D: $1,050,000,
(c)Her Town G property in Country F: $93,940,
(d)Her superannuation: $209,537,
total: $2,653,477,
less liabilities:
(a)V Bank mortgage: $825,360,
(b)CBA mortgage: $543,456,
(c)Her personal loan: $2,233,
total: $1,371,049
leaving net: $1,282,428,
and the husband retain:
(a)His Town R property in Country F: $277,200,
(b)His Town G property in Country F: $15,400,
(c)His superannuation: $45,865,
totalling $338,465,
then the wife will need to pay the husband $309,892.
Should the wife be unable to pay to the husband the above sum of $309,892 within 8 weeks of the Court’s orders, then the property at B Street, Suburb D should be sold and from the net proceeds of sale the husband be paid $309,892 and the wife retain the balance.
Under the Court’s proposed orders, the husband will retain his Country F properties, his superannuation, and cash of $309,892. He is in employment. He may be able to purchase real estate for accommodation in Sydney.
The wife will retain her property in Country F, her superannuation, and two properties in Sydney with related mortgage liabilities. She is in employment and operates a business.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes orders accordingly.
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 4 December 2024
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