Laske and Laske

[2013] FamCA 963

FAMILY COURT OF AUSTRALIA

LASKE & LASKE [2013] FamCA 963

FAMILY LAW – PROCEDURAL – Where adjournment application sought by wife – Where husband opposed to any adjournment application – Where the basis of the application is that the single expert who was appointed to value the parties’ property made a significant alteration to his valuation – Where the adjusted valuation was received the day before the hearing – Where wife submits that an adjournment would be in the interests of justice so that she can consult an expert valuer, if appropriate, ask the single expert further questions or, if appropriate, bring an application for an adversarial expert –
Where adjournment application granted with costs of the parties reserved.

Family Law Act 1975 (Cth)

APPLICANT: Mr Laske

RESPONDENT: Ms Laske

FILE NUMBER: SYC 3912 of 2012

DATE DELIVERED: 5 November 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 5 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Redmond Hale Simpson Solicitors & Barristers

COUNSEL FOR THE RESPONDENT: Mr Gilbert

SOLICITOR FOR THE RESPONDENT: Haydon Fowler Corbett Jessop

Orders

1. That the hearing dates of 5 and 6 November 2013 are hereby vacated.

2. That I stand this matter over, before myself for directions, at 9.30am on Wednesday 29 January 2014.

3. That the parties’ costs of today are reserved to be determined at the final hearing.

NOTATIONS:

1. It is noted that any application for the appointment of an adversarial expert to be relied upon shall be made by 29 January 2014.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3912 of 2012

Mr Laske

Applicant

And

Ms Laske

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is an application for an adjournment of this matter which was fixed for two days hearing commencing today.  The basis of the application is that the single expert who has valued the properties made a significant alteration to his valuation yesterday.  I shall return to that shortly.

3. These are property proceedings only.  Although there is an issue as to precisely when the relationship commenced, it was either sometime in late 2004 or January 2005.  The parties separated on 7 January 2012, having been married in 2008.  It was, therefore, a seven to eight-year relationship.  There are two children who were born in 2005 and in 2007.  There is a relatively limited asset pool.  Although sometime, either before or early in the period of cohabitation, the wife owned a property, it was sold. 

4. Some $253 000 of the proceeds were used to discharge a mortgage on B Street, C Town (“the C Town property”).  The balance was used to buy a car and other expenses, including living expenses.  According to the wife, none remains.  According to the husband’s outline of the case, it will be his submission that some $200 000 of the proceeds of the mortgage still remain unaccounted for.  In any event, the sole piece of property available for distribution between the parties is the husband’s share in the C Town property which he owns as tenants-in-common with his father.  It has been valued, at present, as having a value of $1.8 million.  It has a four-bedroom home on it which was constructed early in the period of the relationship. 

5. The parties sought to have the valuer prepare a retrospective valuation of the property as at late 2004 or early 2005.  He was asked to prepare that valuation on the assumption that there were no improvements of any significant value at the time.  Using a comparative approach, in his valuation dated 18 September 2013, the valuer opined that between September 2004 and January 2005 the value of the property was $1.2 million. 

6. On 25 October 2013 the husband’s solicitors wrote to the valuer and asked him whether or not he had considered sales evidence from properties 10 and 6 B Street.  It can be seen that these were the adjoining properties.  It appears that 6 B Street was sold on 26 April 2006 for $1.81 million and number 10 was sold on 16 August 2003 for $2 million. 

7. The valuer said that these properties were not taken into account because he only did property sale searches for 12 months on either side of the valuation period of September 2004 to January 2005 and that both the sales fell just outside that period.  They were properties that had dwelling houses on them.  However, taking those sales into account, thinking they would be of particular significance because they were the properties on either side of the property being valued, he adjusted his earlier valuation to $1.6 million.  This valuation, if accepted, would significantly alter the property case in that the value of the property at the commencement of the relationship would be very much higher than that provided for by the earlier valuation. 

8. That valuation was received yesterday.  The wife in support of her application submits that in those circumstances, given the significant effect the new valuation will have in the proceedings, that an adjournment would be in the interests of justice so that she can consult an expert valuer and, if appropriate, ask the single expert further questions or bring an application for an adversarial expert.  At present, she is not in a position to determine what course she wishes to follow because she has not been given the opportunity. 

9. In opposing the adjournment, counsel for the husband very properly accepts the difficulties that arise for the wife, but submits that the prejudice is less than what might first be apparent. 

10. First, counsel for the husband submits that as the wife’s lawyers were sent a copy of the correspondence of the husband’s solicitors to the valuer on 25 October 2013 they were aware of what was occurring and could have made their own inquiries.  That is true, but those inquiries would be of little value or little utility without knowing the opinion of the single expert. 

11. Secondly, he submits that he simply could have asked the single expert in the witness box to consider the sales of the adjoining properties and obtain the answers that way.  That is true, but that would have simply then led to the adjournment application being made at that time with the matter then possibly having to go over part-heard. 

12. Counsel for the husband points to the prejudice that his client will suffer if an adjournment is granted which will be the costs thrown away from today and there will be costs of possibly a further day of hearing. Of course, the hearing will delayed until well into next year. 

13. I accept all those are matters to be weighed in the balance.  There is no-one particularly to blame for the adjournment.  The husband’s solicitors sought the further information from a single expert in a reasonably prompt way and received a reasonably prompt reply.  Had that reply been received 14 days ago or even, possibly, as little as seven days ago the matter may well have been quite different but, since the amended valuation was only received yesterday, the fundamental basis of the case has changed in a way that the wife cannot meet today.  Although she may be able to meet it within a short time there is no suggestion that she will be able to meet that within the next two days.

Conclusion

1. Therefore, taking all those things into account it is in the interest of justice that the wife be given the opportunity to investigate the fresh opinion of the single expert.

2. The issue then is whether I should otherwise commence the proceedings.  I think the lesser evil is for the matter not to become part-heard given it is a two day hearing.  The costs of everybody getting back up to speed in some months are not going to be significantly different to the costs that will be incurred otherwise, so there is no advantage in taking the less desirable course of taking the case as far as it can and then becoming part-heard.

3. There is, at least, the prospect that someone will want a transcript which, of itself, would probably be sufficient to negate any other advantages of starting the case today. 

4. Therefore, the appropriate order is to vacate the hearing date.  The issue as to costs is one that should be dealt with on the final hearing once the outcome of the wife’s investigations are revealed.  So I will reserve the parties’ costs of today. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 5 November 2013.

Legal Associate:

Date: 3 December 2013