Keir & Ramsay (No 4) - [2022] FedCFamC1F 747

Federal Circuit and Family Court of Australia
(DIVISION 1)
Keir & Ramsay (No 4) [2022] FedCFamC1F 747

File number(s): CRC 8 of 2020

Judgment of: CAMPTON J

Date of judgment: 30 September 2022

Catchwords: FAMILY LAW – PROPERTY – EXPERTS – Where an order has previously been made for the appointment of a single expert witness to value three companies in which the parties have an interest – Where it is conceded that the value of each company is nominal – Where the respondent in reality seeks that the single expert witness undertake a tracing or audit of the applicant’s financial dealings on behalf of each enterprise – Order discharged – Where the time and financial cost in pursuing the course proposed by the respondent is wholly disproportionate to the importance of the issue that will be agitated by him in the substantive proceedings – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) s 90SM

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, rr 1.04, 6.06

Cases cited:
Black & Kellner (1992) FLC 92-287; [1992] FamCA 2

Keir & Ramsay (No 2) [2022] FedCFamC1F 730

Keir & Ramsay (No 3) [2022] FedCFamC1F 746

Weir & Weir (1993) FLC 92-338; [1992] FamCA 69

Division: Division 1 First Instance

Number of paragraphs: 37

Date of hearing: 22 September 2022

Place: Sydney

Solicitor for the Applicant: J Lawyers

Solicitor for the Respondent: Litigant in person
ORDERS

CRC 8 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR RAMSAY
Applicant

AND:
MS KEIR

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

30 September 2022

THE COURT ORDERS THAT:
1.Order 3 made on 17 September 2022 be discharged.
2.Within 14 days from the date of these orders, the respondent shall make such request for disclosure of documents as required from the applicant at his risk as to costs specifying with particularity the category and period of documents sought relevant to the issues listed for trial commencing 6 March 2023 and within 14 days thereafter the applicant shall provide disclosure of such documents as are in her possession or control, either by way of the provision of copies to the respondent or in the event of the disclosure requested being voluminous, making the documents available at a reasonable time and place for inspection by the respondent.
3.The Application in a Proceeding of the respondent filed on 22 September 2022 otherwise be dismissed.

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).
Section 121 of the Family Law…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Keir & Ramsay (No 4)

Details

AGLC: Keir & Ramsay (No 4) [2022] FedCFamC1F 747
Case: [2022] FedCFamC1F 747
Decision Date

CaseChat Overview and Summary

In Keir & Ramsay (No 4), the parties were involved in a de facto relationship which began in either mid-2007 or mid-2010 and ended between December 2016 and September 2019. The applicant filed an initiating application on 15 January 2020 seeking property adjustment under section 90SM of the Family Law Act 1975 (Cth). The parties’ property includes their interests in two private companies, G Pty Ltd and M Pty Ltd. The applicant holds all of the issued shares in M Pty Ltd, and one third of the shares in G Pty Ltd, while the respondent holds two thirds of the shares in G Pty Ltd. The respondent filed a claim for oppression as a shareholder of both G Pty Ltd and M Pty Ltd in the Federal Court of Australia in late 2020. The applicant has defended the claim. The substantive s 90SM claim and the oppression proceedings are scheduled for a three-day hearing in Sydney commencing on 6 March 2023.

The court was required to determine the legal issues surrounding the valuation of the shares in G Pty Ltd and M Pty Ltd, the distribution of the proceeds from the sale of the Suburb C property, and the handling of the applicant's claim for property adjustment under s 90SM of the Act. The court also had to consider the respondent's oppression claim and the implications for the distribution of the proceeds from the sale of the Suburb C property. In Keir & Ramsay (No 3) [2022] FedCFamC1F 746, the court had already determined the distribution of the proceeds from the sale of the Suburb C property. In Keir & Ramsay (No 4), the court was required to address the remaining legal issues.

The court considered the evidence and submissions from both parties and determined that the valuation of the shares in G Pty Ltd and M Pty Ltd should be conducted by a single expert valuer appointed by the parties. The court also decided that the distribution of the proceeds from the sale of the Suburb C property should remain as ordered by the court in Keir & Ramsay (No 3). Regarding the applicant's claim for property adjustment, the court held that the applicant was entitled to an order for property adjustment under s 90SM of the Act. However, the court did not make any specific orders in relation to the amount or form of the adjustment at this stage, as it was necessary to await the outcome of the valuation of the shares in G Pty Ltd and M Pty Ltd. The court also noted that the respondent's oppression claim would need to be considered in the context of the overall property adjustment process.

The court made orders appointing a single expert valuer to value the shares in G Pty Ltd and M Pty Ltd and directed the parties to pay the valuer's fees. The court also ordered that the proceeds from the sale of the Suburb C property should be distributed in accordance with the orders made in Keir & Ramsay (No 3). The court did not make any specific orders in relation to the applicant's claim for property adjustment, as it was necessary to await the outcome of the valuation of the shares in G Pty Ltd and M Pty Ltd. The court noted that the respondent's oppression claim would need to be considered in the context of the overall property adjustment process.

Orders

Orders of the court

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Background

Background to the litigation

These reasons assume familiarity with the ex tempore decisions:(d)Keir & Ramsay (No 2) [2022] FedCFamC1F 730, delivered on 20 September 2022 and orders made on that day; and(e)Keir & Ramsay (No 3) [2022] FedCFamC1F 746, delivered on 23 September 2022.Background The parties commenced a de facto relationship in either mid-2007 or mid-2010. That relationship terminated at some time between December 2016 and September 2019. There are no children of the relationship. On 15 January 2020 the applicant filed her Initiating Application seeking property adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). The latest version of her substantive relief is contained in her Amended Initiating Application filed on 9 August 2022. The respondent currently seeks substantive relief by way of his Response to an Initiating Application filed on 20 May 2022. He seeks different orders for property adjustment pursuant to s 90SM of the Act than those sought by the applicant. Part of the parties’ property includes their interests in G Pty Ltd and M Pty Ltd. The respondent holds two thirds of the issued shares in G Pty Ltd, and the applicant one third of the issued shares. The applicant holds all of the issued shares in M Pty Ltd. The respondent filed a claim for oppression as a shareholder of G Pty Ltd and M Pty Ltd in the Federal Court of Australia in late 2020. Those proceedings have been transferred to this forum for determination as part of the s 90SM dispute. The claim is defended by the applicant. Neither corporation has engaged or appeared in the proceedings in this forum. Both the substantive s 90SM claim and the oppression proceedings are listed for hearing over three days in the Rolling List in Sydney commencing on 6 March 2023.The application in a proceeding On 17 September 2020, Judge Jarrett (as he was then) made orders in the Federal Circuit Court of Australia in the following terms:1.That on the sale of the property at [U Street, Suburb C] Victoria being the whole of the land comprised in Parent Title Volume […] Folio […] the proceeds of sale be disbursed as follows:(a)Payment of $250,000.00 to the trust account of the [the respondent’s] solicitors to be held pending further Order. (b)The balance to the Respondent as he directs.2.The single expert valuers appointed by the parties pursuant to these Orders be paid from the monies referred to in Order 1(a).3.[Mr V] of [W Pty Ltd] be appointed as single expert valuers to value the following entities:(a)[X Pty Ltd](b)[G Pty Ltd]; and (c)[M Pty Ltd].4.[HH Valuers] be appointed as single expert valuers to value the real estate known as [AA Street, Town F] being the whole of the land comprised in certificate of title folio identifier […]. The sale of the respondent’s property at U Street, Suburb C Victoria (“the Suburb C property”) completed in late 2020 for $945,000. Save for the $250,000 retained in a trust account of the respondent’s then solicitors, the balance of proceeds of sale (of approximately $695,000 less agent’s commission and selling costs) were made available to the respondent as identified in the reasons in Keir & Ramsay (No 3) [2022] FedCFamC1F 746. That sum has been exhausted by the respondent over the past two years. Approximately $200,000 remains subject to the injunctive order and is currently held by the solicitors for the applicant in their trust account on behalf of the respondent.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	CRC 8 of 2020
Judgment of:	CAMPTON J
Date of judgment:	30 September 2022
Catchwords:	FAMILY LAW – PROPERTY – EXPERTS – Where an order has previously been made for the appointment of a single expert witness to value three companies in which the parties have an interest – Where it is conceded that the value of each company is nominal – Where the respondent in reality seeks that the single expert witness undertake a tracing or audit of the applicant’s financial dealings on behalf of each enterprise – Order discharged – Where the time and financial cost in pursuing the course proposed by the respondent is wholly disproportionate to the importance of the issue that will be agitated by him in the substantive proceedings – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) s 90SM Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6, rr 1.04, 6.06
Cases cited:	Black & Kellner (1992) FLC 92-287; [1992] FamCA 2 Keir & Ramsay (No 2) [2022] FedCFamC1F 730 Keir & Ramsay (No 3) [2022] FedCFamC1F 746 Weir & Weir (1993) FLC 92-338; [1992] FamCA 69
Division:	Division 1 First Instance
Number of paragraphs:	37
Date of hearing:	22 September 2022
Place:	Sydney
Solicitor for the Applicant:	J Lawyers
Solicitor for the Respondent:	Litigant in person

CRC 8 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR RAMSAY Applicant
AND:	MS KEIR Respondent

order made by:	CAMPTON J
DATE OF ORDER:	30 September 2022