Kingsley & Tadmore
[2024] FedCFamC1F 284
•30 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kingsley & Tadmore [2024] FedCFamC1F 284
File number(s): CAC 837 of 2019 Judgment of: GILL J Date of judgment: 30 April 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the de facto wife sought an adjournment of final hearing to seek and file further evidence – Held that the de facto wife’s case was not ready to proceed and continuation of final trial would result in manifest injustice – Matter relisted for final hearing in September – Costs order made in favour of the first, second and third respondents.
FAMILY LAW – PRACTICE AND PROCEDURE – Consent orders made in relation to appointment of single experts, disclosure by first, second and third respondents and filing of expert reports.Legislation: Family Law Act 1975 (Cth) – s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Part 2
Cases cited: Aon Risk Services Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Division: Division 1 First Instance Number of paragraphs: 6 Date of hearing: 30 April 2024 Place: Canberra Counsel for the Applicant: Ms Braun Solicitor for the Applicant: Brigitte Smithies & Associates Counsel for the First, Second and Third Respondents: Mr Stuart Solicitor for the First, Second and Third Respondents: Thomas Stuart, Barrister ORDERS
CAC 837 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KINGSLEY
Applicant
AND: MR TADMORE
First Respondent
MR B TADMORE
Second Respondent
C PTY LTD
Third Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
30 APRIL 2024
THE COURT ORDERS, BY CONSENT, THAT:
1.Mr D of E Pty Ltd be appointed as the single expert (“the chattels single expert”) to value the following assets:
(a)Motor Vehicle 1 (currently situate at F Business);
(b)Motor Vehicle 2;
(c)Motor Vehicle 3;
(d)Motor Vehicle 4;
(e)Motor Vehicle 5;
(f)The two unimproved cars - Motor Vehicle 6 and Motor Vehicle 7;
(g)Water Vessel 1 with Equipment 1 and Equipment 2;
(h)Water Vessel 2;
(i)Equipment 3; and
(j)All tools of trade of G Company including but not limited to machines and hand tools, including two toolboxes and two tool chests.
and that the cost of the valuation herein be shared equally by the parties.
2.For the purpose of Order 1 herein, the First, Second and Third Respondent (“the Respondents”) do all acts and things necessary to provide access to the single expert to all chattels including but not limited to the items listed in Order 1, and provide all authorisations necessary to third parties including F Business to provide access to any items contained within Order 1 that are within their possession or control, and in the event that one or more chattels are situated at other sites, they provide details of those sites to Mr D, and full access to same as contemplated by this order.
3.In the event that one or more chattels have been disposed of or are no longer in the Respondents’ possession or control, that the Respondents file and serve an affidavit containing an explanation and particulars of same including but not limited to, the date of disposal, the mode of disposal, and any consideration received for same.
4.For the purpose of the valuations, the applicant de facto wife be permitted to provide to the single expert all photographs and evidence of the condition of the chattels in the possession of the parties at the time of separation, and or February 2019 being the date on or about the de facto wife removed her possessions from the property.
5.In the event that one or all of the Respondents do not provide access to, or information as sought in paragraphs 2 and 3 of these Orders, the applicant de facto wife be permitted to rely upon any valuations obtained by her solely.
6.The Respondents provide to the applicant’s solicitors within 14 days all documents relating to any alleged liens and, or, any other debts owed on any of the chattels.
Business valuations
7.Mr J of H Accountants be appointed as a single expert to value C Pty Ltd and that such valuation include the business names G Company, K Company and L Company and identify the value to be attributed to such within C Pty Ltd with the cost of same to be shared equally between the parties.
8.Within 14 days of Mr J identifying to the Respondents the documents required, the Respondents shall produce all documents required by H Accountants from the valuation of C Pty Ltd and in response do all acts and things necessary to provide all source documents to Mr J upon request by him and shall contemporaneously forward all such documents to the applicant.
9.In the event that Mr J considers that he has not been provided with sufficient documents in accordance with Order 8 herein, the applicant de facto wife be at liberty to apply.
Land Valuation
10.The parties be at liberty to request that O Valuations update their report in relation to the value of the M Property dated 29 November 2021.
Disclosure
11.The Respondents provide full disclosure of all documents relating to the Grant of Probate and or Letters of Administration, and distribution of the deceased de facto husband’s estate including but not limited to, the deceased de facto husband’s superannuation interests, cash in bank (including but not limited to the Westpac Banking Corporation and National Australia Bank and Commonwealth Bank accounts), and insurance death benefits payable to the estate.
Filing
12.The applicant de facto wife file and serve the expert reports from O Valuations dated 29 November 2021 and any subsequent updates, and the H Accountants Valuation of G Company dated 12 April 2024.
13.The Respondents file and serve the H Accountants Valuation Report of C Pty Ltd.
14.In the event that any party has not complied with these directions the other party be at liberty to apply for the applicant de facto wife’s application to proceed undefended or the applicant de facto wife’s claims in equity against the Respondents to be dismissed.
15.The applicant file and serve affidavits dealing with any update into her circumstances by 4 pm on 10 July 2024.
16.The Respondents file and serve any material in response by 4 pm on 31 July 2024.
17.The applicant file and serve an amended case outline document, including orders sought, by 4 pm on 7 August 2024.
18.The Respondents to file and serve a case outline document, including orders sought, by 4 pm on 15 August 2024.
IT IS FURTHER ORDERED THAT:
19.The matter is listed for trial commencing at 10 am on 9 September 2024 for a period of five days.
20.The applicant de facto wife is granted leave to issue subpoenas to Westpac Banking Corporation and National Australia Bank returnable no later than 28 June 2024.
21.The applicant de facto wife be granted leave to subpoena Ms N to attend the trial of this matter to give evidence.
22.No party may issue a subpoena returnable after 31 July 2024 without obtaining the further leave of the court.
IT IS NOTED THAT
23.The parties note that failure to comply with any orders as set out above is likely to give rise to costs consequences against the defaulting party.
COSTS
24.I order that the applicant pay the Respondents’ costs in the sum of $5,600 (including GST) within a period of 28 days of today’s date.
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).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
At the commencement of these proceedings, counsel for the applicant de facto wife indicated her intention to seek an adjournment of the proceedings. After hearing from her, I came to the conclusion that the applicant’s case is not ready to proceed. Affidavits from single experts were not filed, further evidence was identified as necessary to resolve the serious issues at play in the case. This meant that although by her affidavit evidence the applicant disclosed a prima facie case for much of the relief that she seeks, her case was in no position to be run. Counsel conceded that she was not ready to run the case without having further instructions from her client. Under those circumstances to push the case on would have resulted in a manifest or a potentially manifest injustice being visited upon the applicant. However, to adjourn the proceedings works other injustices including against the respondents who advised that they had attended ready to proceed.
I note the High Court’s case of Aon Risk Services Limited v Australian National University (2009) 239 CLR 175 being authoritative in communicating to courts the importance of the orderly and proper conduct of proceedings and their observation that costs are not always an adequate salve for adjournment of proceedings that have not been so adequately prepared. Notwithstanding the injustice of the further adjournment of proceedings which have already dragged out for significant time, I have concluded that the interests of justice overall require the adjournment of the proceedings on the basis that a costs order be made against the applicant wife in favour of the respondents.
That costs order is made under circumstances where s 117 of the Family Law Act 1975 (Cth) provides for a starting point that each party bear their own costs, subject to justification being provided that a different course of action should be taken. Despite the difficult financial circumstances identified for the applicant wife, and her difficult personal circumstances, and the burden of litigation over many years, the inability of the wife to conduct her case at the start of the proceedings marks out a manner of conduct of the proceedings that justifies a costs order being made against her.
That costs order should be made reliant upon the schedule allowable for counsel’s work done and services performed. The respondents are represented by junior counsel, of some significant level of experience, the relevant range is marked out in Item 205, Part 2 of the relevant schedule of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as encompassing an amount between $2,103.90 and $3,092.44 per day. The period of time for attendance in court yesterday was less than a full day, but today may be taken as being the equivalent of a full day. Under those circumstances it is appropriate to fix the daily rate as $2,800.
Accordingly, I order that the applicant pay the respondents’ costs in the sum of $5,600 (including GST) within a period of 28 days of today’s date.
I note that the respondents sought that the amount be payable forthwith however, I note that the applicant is in difficult financial circumstances and some reasonable period of time should be made to allow her to make payment of those costs.
I certify that the preceding six (6) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 6 May 2024
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