Linton and Clarke and Anor
[2020] FamCA 497
•19 June 2020
FAMILY COURT OF AUSTRALIA
| LINTON & CLARKE AND ANOR | [2020] FamCA 497 |
| FAMILY LAW – PRACTICE AND PROCEDURE – SINGLE EXPERT VALUATIONS – Review of Registrar’s decision to settle two (2) letters of instruction to each of the business valuer and real property valuer to produce retrospective valuations as at 2 December 2013, being the date an Application for Consent Orders was filed by the Wife and the Husband – Where the matter is listed for final hearing August 2020 to hear the substantive Application to vary the consent Orders entered into – Where the Applicant Trustee in Bankruptcy contends that the Wife and Husband did not accurately disclose the value of certain business interests and properties at the time of the Application for Consent Orders was made – Where the Applicant Trustee in Bankruptcy seeks that the date of the retrospective valuations be performed as at 28 December 2013 or, alternatively, 5 February 2014, being the date the Husband responded to a requisition for information from the Court and the date that the consent Orders were made by the Court – Where the Applicant Trustee seeks to provide additional facts and documents to the single expert valuers in addition to those referred to in the letters of instruction settled by the Registrar – Whether there is an absence of evidence of any event, circumstance or phenomena that occurred between 2 December 2013 and the alternate proposed dates that may have impacted upon the value of the businesses and properties – Orders made dismissing the Application in a Case – Supplementary Orders made permitting the Applicant Trustee in Bankruptcy to request the valuers provide a supplementary report addressing valuations at the alternative dates proposed – Supplementary Orders made for the parties to confer and agree on a statement of facts to provide to the valuers and absent agreement for each of the parties to provide a statement of facts, if they so choose. |
| Family Law Act 1975 (Cth) s 79A Family Law Rules 2004 (Cth) r 1.04, 15.54(3), 15.54(4)(a), 15.46, 18.08, 18.10 |
| Feiteiro & Feiteiro [2019] FamCA 647 |
| APPLICANT: | Mr Linton |
| FIRST RESPONDENT: | Ms Clarke |
| SECOND RESPONDENT | Mr Headley |
| FILE NUMBER: | SYC | 3545 | of | 2016 |
| DATE DELIVERED: | 19 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | By way of written submissions; 16 June 2020. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Byrne |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley |
SOLICITOR FOR THE FIRST RESPONDENT: | Mr M E Frances of Watson Mangioni Lawyers Pty Limited |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Johnson |
| SOLICITOR FOR THE SECOND RESPONDENT: | Jo-Anna F.S. Moy Solicitor |
Orders
The Application in a Case filed 29 April 2020 is dismissed.
In addition to the letters to single expert valuers settled by the Registrar on 23 April 2020, the Applicant has leave to send:
(a)a further letter to Ms B of C Valuers requesting that, subject to the Applicant meeting the cost of the additional work, she provide a brief supplementary report setting out her opinion as to whether any event, circumstance or phenomena occurred between 2 December 2013 and either or both of 28 December 2013 and 5 February 2014 that impacted upon the value of the following businesses:
(i)"D Business";
(ii)“E Business”;
(iii)"F Business"; and
(iv)"G Business".
and, if so, what value would she place on each of those respective businesses as at that additional date or dates as so requested.
(b)a further letter to Mr H of J Valuers requesting that, subject to the Applicant meeting the cost of the additional work, he provide a brief supplementary report setting out his opinion as to whether any event, circumstance or phenomena occurred between 2 December 2013 and either or both of 28 December 2013 and 5 February 2014 that impacted upon the value of the following properties:
(i)K Street, L Town NSW;
(ii)2 M Street, Suburb N NSW;
(iii)4 M Street, Suburb N NSW; and
(iv)O Street, Suburb P NSW.
and, if so, what value would he place on each of the respective real properties as at that additional date or dates as so requested.
That, the parties are to, within seven (7) days, confer with a view to attempting to reach agreement on an agreed statement of facts to be provided to each single expert valuer in accordance with r 15.54(3) of the Family Court Rules 2004 (“the Rules”).
If, within that period of seven (7) days, the parties are unable to reach agreement in respect to an agreed statement of facts then, to the extent that each party so choses, they may provide to each single expert valuer a statement of facts in accordance with r 15.54(4)(a) of the Rules.
To avoid doubt, the statement or statements of fact to be provided to each single expert valuer, in accordance with Order 4, may attach such document or documents that the party or parties, acting reasonably, contend is relevant to the task requested of each valuer.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Linton & Clarke and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3545 of 2016
| Mr Linton |
Applicant
And
| Ms Clarke |
First Respondent
And
| Mr Headley |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The parties are involved in a dispute as to whether an order should be made, pursuant to s 79A of the Family Law Act1975 (Cth) (“The Act”), to vary Orders made on 5 February 2014 adjusting the parties’ property consequent upon the breakdown of their marriage of 25 years. The substantive Application to vary those Orders is made by the Applicant, Mr Linton (“Applicant Trustee in Bankruptcy”), as trustee in bankruptcy of the Second Respondent, Mr Headley (“Second Respondent husband”). One of the issues in those proceedings is whether the Respondents, being the husband and Ms Clarke (“First Respondent wife”), accurately disclosed the value of certain business interests and properties at the time an Application for consent Orders was made by the parties in December 2013. The substantive Application to set aside those consent Orders has been listed for hearing in August 2020.
This matter concerns an Application in a Case seeking a review of a decision of Registrar Ryan made on 23 April 2020 pursuant to r 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”). In that decision, the Registrar made Orders for the appointment of single expert valuers to value businesses and the property that constituted the matrimonial property pool of the First and Second Respondent wife and husband, respectively, as at 2 December 2013, being the date that the parties filed an Application for consent Orders. The Applicant Trustee in Bankruptcy seeks an order that would require the valuations to be conducted as at 28 December 2013, being the date that the Second Respondent husband filed an Affidavit responding to requisitions made by the Court in respect to the information provided by the First and Second Respondent wife and husband, respectively, in support of their Application for consent Orders. Alternatively, the Applicant Trustee in Bankruptcy seeks an order that the valuations be prepared as at 5 February 2014, being the date that the Court actually made the consent Orders adjusting the First and Second Respondent wife and husband’s matrimonial property pursuant to s 79 of the Act.
The Applicant Trustee in Bankruptcy also seeks to amend the letters to the valuers to include reference to additional facts and documents.
Subsequent to the parties filing written submissions, I requested that the parties address me in respect to their submissions at a brief hearing on 16 June 2020. In addition, I requested the Applicant Trustee in Bankruptcy to provide, to the Court, a noted up copy of the two (2) letters of instruction settled by the Registrar with his proposed changes.
Attached to this decision and marked as Schedule A is the Applicant Trustee in Bankruptcy’s noted up copy of the letter to Ms B of C Valuers, provided to the Court on 16 June 2020, who has been tasked with providing retrospective valuations of the relevant business interests. Attached to this decision and marked as Schedule B is the Applicant Trustee in Bankruptcy’s noted up copy of a letter to Mr H of J Valuers, provided to the Court on 16 June 2020, who has been tasked with providing retrospective valuations of four (4) parcels of real property.
In the hearing on 16 June 2020, counsel for the Applicant Trustee in Bankruptcy indicated that the Applicant did not press his Application to delete the text which has been marked with a strikethrough line in the attached schedules.
Issues
As stated by the Applicant Trustee in Bankruptcy, the two (2) primary issues that arise in respect to this Application for review are:
a)What should be the relevant valuation date(s); and
b)Whether certain documents and information should be provided to Ms B who is an expert in business valuations and has been retained to conduct a retrospective evaluation of the parties’ business interests.
The determination of those issues essentially involves balancing two objectives of case management. The first objective is the need for the courts to provide, so far as it is possible, expeditious resolution of disputes at a cost that is proportionate to the issues in dispute consistent with the main purpose of the Rules: see r 1.04 of the Rules. At the same time, it is necessary to ensure that the dispute between the parties is resolved in a manner that provides “justice according to law” and, specifically, that the parties have every reasonable opportunity to present evidence that they consider, on reasonable grounds, to be relevant to the Court’s fair and proper consideration of the case that they wish to present: Salmon & Salmon [2020] FamCAFC 134 at [26] citing Owners of Strata Plan 58577 v Banmor Developments Finance Pty Limited and Other [2006] NSWCA 325 at [2].
Background
In August 2013, Q Pty Ltd and R Pty Ltd (collectively referred to as “QR”) commenced proceedings in the Federal Court of Australia proceedings against the Second Respondent husband (“QR Proceedings”).
On 2 December 2013, the First Respondent wife filed an Application for consent Orders in this Court proposing consent orders be made effecting an adjustment of the parties’ matrimonial property consequent upon the breakdown of their marriage.
On 17 December 2013, a Registrar of this Court sent a letter (“the requisition”) to the Second Respondent husband’s then solicitors and the First Respondent wife’s then solicitors requesting further information concerning the proposed division of property.
On 28 December 2013, the Second Respondent husband filed an Affidavit in response to the requisition from the Registrar.
On 5 February 2014, the consent Orders as proposed by the First and Second Respondent wife and husband were made by this Court.
The consent Orders effected an adjustment of the following property:
Businesses
a)“D Business" (“ the D Business”);
b)"F Business" (“the F Business”);
c)"G Business" (“the G Business”); and
d)“E Business” (“the E Business”).
Real property
e)K Street, L Town NSW (“the L Town Property”);
f)2 M Street, Suburb N NSW (“the First Suburb N Property”);
g)4 M Street, Suburb N NSW (“the Second Suburb N Property”); and
h)O Street, Suburb P NSW (“the Suburb P Property”).
On 7 June 2016, the Applicant Trustee in Bankruptcy filed an Initiating Application in this Court seeking a variation of the consent Orders on the basis that he contends that those Orders were entered into in the shadow of the impending trial of the QR Proceedings that had been commenced against the Second Respondent husband. Specifically, it is contended that the ‘market values’ ascribed in the consent Orders to:
i. the Businesses were materially overstated; and
ii. the Properties were materially understated.
Relevantly, the Applicant Trustee in Bankruptcy contends that:
…by reason of the over- and understatement of values referred to… a significantly greater portion of the aggregate value of the assets of the marriage was retained by the Wife than indicated in the Consent Orders Application…
This outcome, it was contended, was detrimental to the interests of creditors of the Second Respondent husband.
It is in the context of those contentions that the retrospective valuations of the businesses and real property is sought.
To initiate the process to obtain those valuations, single experts were appointed pursuant to ch 15 of the Rules.
On 31 March 2020, Registrar Ryan made, inter alia, the following Order:
5. That the single experts shall be agreed and forwarded agreed letters of instruction within 7 days.
On 23 April 2020, Registrar Ryan made the following further Orders:
1. I note that this matter was listed before me today in Chambers to settle two letters of instruction in accordance with Rule 15.46(f). I note that the settled instructions to Mr H property valuer and Ms B business valuer, have been forwarded to the Solicitors by email today. The parties will need to amend the document schedule included in the instruction accordingly.
2. I extend the time for compliance with Order 5 of the orders made 31 March 2020 to close of business 26 April 2020.
Notations
3. The Court notes the following:
· The experts are providing their opinions as 2 December 2013, being the date the parties filed an Application for consent Orders dividing property.
APPLICATION
By Application in a Case dated 29 April 2020, the Applicant seeks the following orders:
1. The orders, directions and notations made by Registrar Ryan on 23 April 2020 be vacated.
2. Order 5 of the orders, directions and notations made by Registrar Ryan on 31 March 2020 be vacated.
3. A letter of instructions, in the form annexed and marked "A" (and enclosing copies of the documents referred to in the schedule to that letter), be despatched to the joint expert Ms B by a date to be determined by the Court.
4. A letter of instructions, in the form annexed and marked "B" (and enclosing copies of the documents referred to in the schedule to the letter), be despatched to the joint expert Mr H by a date to be determined by the Court.
5. Such other orders or directions that the Court considers appropriate.
6. Costs.
Evidence
The Applicant Trustee in Bankruptcy relied upon the following:
a)Application in a Case filed 29 April 2020;
b)Affidavit of Samuel Barber filed 29 April 2020 and annexures;
c)Affidavit of Mr Linton filed 8 May 2020;
d)Applicant’s proposed instructions to business valuer dated 15 April 2020;
e)Applicant’s proposed instructions to real estate valuer dated 15 April 2020;
f)Points of claim filed 14 April 2020;
g)Noted up instructions to business valuer provided to the Court on 16 June 2020;
h)Noted up instructions to real estate valuer provided to the Court on 16 June 2020; and
i)Written submissions of the Applicant dated 21 May 2020;
The First Respondent wife relied upon the following:
a)Response to the Application in a Case unfiled;
b)Response to the Applicant Trustee in Bankruptcy’s points of claim filed 28 April 2020;
c)Written submissions of the First Respondent filed 21 May 2020;
d)Respondent’s joint letter of instruction to business valuer undated provided to the Court on 30 March 2020; and
e)Respondent’s joint letter of instruction to real estate valuer undated provided to the Court on 30 March 2020.
The Second Respondent husband relied upon the following:
a)Response to the Application in a Case unfiled;
b)Response to the Applicant Trustee in Bankruptcy’s points of claim filed 28 April 2020;
c)Written submissions of the Second Respondent filed 21 May 2020;
d)Respondent’s joint letter of instruction to business valuer undated provided to the Court on 30 March 2020; and
e)Respondent’s joint letter of instruction to real estate valuer undated provided to the Court on 30 March 2020.
The Law
Rule 18.08 of the Rules enables a party to apply for a review of an order made by a Registrar.
Rule 18.10 of the Rules sets out the power of the Court on review which is by way of an original hearing, in other words proceeds by hearing de novo:
Power of court on review
(1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley (2019) FamCA 101 at [7].
Accordingly, my task is not one of ascertaining whether, in the making of the order, there was an error on the part of the Registrar.
In that respect, r 15.46 of the Rules provides:
Orders the court may make
The court may, in relation to the appointment of, instruction of, or conduct of a case involving, a single expert witness make an order, including an order:
(a) requiring the parties to confer for the purpose of agreeing on the person to be appointed as a single expert witness;
(b) that, if the parties cannot agree on who should be the single expert witness, the parties give the court a list stating:
(i) the names of people who are experts on the relevant issue and have consented to being appointed as an expert witness; and
(ii) the fee each expert will accept for preparing a report and attending court to give evidence;
(c) appointing a single expert witness from the list prepared by the parties or in some other way;
(d) determining any issue in dispute between the parties to ensure that clear instructions are given to the expert;
(e) that the parties:
(i) confer for the purpose of preparing an agreed letter of instructions to the expert; and
(ii) submit a draft letter of instructions for settling by the court;
(f) settling the instructions to be given to the expert;
(g) authorising and giving instructions about any inspection, test or experiment to be carried out for the purposes of the report; or
(h) that a report not be released to a person or that access to the report be restricted.
Chapter 15 of the Rules sets out a detailed code for the appointment of experts including providing instructions and seeking additional information. Most relevantly, for the issues in these proceedings, r 15.54 of the Rules provides:
Instructions to expert witness
(1) A party who instructs an expert witness to give an opinion for a case or an anticipated case must:
(a) ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules; and
(b) obtain a written report from the expert witness.
(2) All instructions to an expert witness must be in writing and must include:
(a) a request for a written report;
(b) advice that the report may be used in an anticipated or actual case;
(c) the issues about which the opinion is sought;
(d) a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
(e) full and frank disclosure of information and documents that will help the expert witness to perform the expert witness's function.
(3) The parties must give the expert an agreed statement of facts on which to base the report.
(4) However, if the parties do not agree on a statement of facts:
(a) unless the court directs otherwise--each of the parties must give to the expert a statement of facts on which to base the report; and
(b) the court may give directions about the form and content of the statement of facts to be given to the expert.
Consideration
Appropriate date for retrospective valuations
The position advanced by the Applicant Trustee in Bankruptcy, as set out at paragraph 24 of the his written submissions, is as follows:
Mr Linton proposed 28 December 2013 (the date of the December 2013 Affidavit) as a compromise between 3 December 2013 and 5 February 2014 (on the basis that any changes in valuation between 28 December 2013 and 5 February 2014 could more easily be addressed in cross-examination). The Court may consider, however, that it is more appropriate, in light of the matters addressed above, that the valuation date be changed (from 3 December 2013) to 5 February 2014.
Indeed, it was contended at paragraph 22 of the written submissions of the Applicant Trustee in Bankruptcy that, if costs were not an issue, a retrospective evaluation would be obtained both as at 28 December 2013 and also 5 February 2014.
In order to understand the parties’ respective contentions as to the appropriate date, it is first necessary to have regard to relevant parts of the Summary of Argument document entitled “Points of Claim”, filed by the Applicant Trustee in Bankruptcy on 14 April 2020. That document sets out the basis upon which Applicant Trustee in Bankruptcy contends that the consent Orders made by the Court on 5 February 2014 should be varied. Paragraphs 49 to 60 of those points of claim provide:
D. Consent Orders
49. On about 13 September 2013, Mr Headley’s then solicitors provided to Ms Clarke’s then solicitors a disclosure document containing information about Mr Headley’s assets and liabilities.
50. On about 2 December 2013, Ms Clarke filed in the Family Court of Australia (Family Court) (case SYC 7141 of 2013: Consent Orders Proceedings) an “Application for Consent Orders” (Consent Orders Application) (dated 19 November 2013) pursuant to s 79 of the Family Law Act 1975 (Cth).
51. The Consent Orders Application indicated inter alia that:
(a) the “market value” of (page 9):
i. 100% of the D Business was $200,000;
ii. 75% of the E Business was $100,000;
iii. 100% of the F Business was $200,000;
iv. 100% of the G Business was $100,000; and
v. the T Pty Ltd shares held by Mr Headley was $50,000;
(b) the “market value” of (page 8):
i. the L Town Property was $1,300,000;
ii. the First Suburb N Property was $680,000;
iii. the Second Suburb N Property was $700,000; and
iv. the Suburb P Property was $320,000;
(c) Ms Clarke was the sole owner of the Suburb P Property (page 8);
(d) Ms Clarke and Mr Headley were the joint owners (each with a 50% interest) of the L Town Property, First Suburb N Property and Second Suburb N Property (page 8); and
(e) the “Proposed percentage division of the property (including superannuation)” was 75% for Ms Clarke and 25% for Mr Headley (page 15).
52. In the Consent Orders Application, the “market value” indicated:
(a) for each of the D Business, E Business, F Business and G Business was materially higher than the actual market value;
(b) for each of the L Town Property, First Suburb N Property, Second Suburb N Property and Suburb P Property was materially lower than the actual market value; and
(c) for the 180,000 T Pty Ltd ordinary shares held by Mr Headley was materially higher than the actual market value.
Particulars – (a) to (c)
To be provided following completion of expert reports.
53. Also on about 2 December 2013, Ms Clarke filed in the Consent Orders Proceedings proposed consent orders (Proposed Consent Orders), signed by her on 19 November 2013 and by Mr Headley on 26 November 2013.
54. By the Proposed Consent Orders:
(a) Mr Headley would be required to transfer his ownership interests in the L Town Property, First Suburb N Property and Second Suburb N Property to Ms Clarke;
(b) Ms Clarke would retain the Suburb P Property;
(c) Ms Clarke would be required to refinance loans secured by the properties (in (a) and (b) above) so that Mr Headley would have no liability;
(d) Mr Headley and Ms Clarke would retain other property and chattels in his or her possession, including superannuation, cash in bank accounts and insurance policies;
(e) Mr Headley would retain any interests he had in the D Business, E Business, F Business and G Business, as well as the T Pty Ltd shares he held; and
(f) Mr Headley and Ms Clarke would become solely liable for, and would indemnify each other against, any liability encumbering any such property or chattels retained by him or her.
55. On 17 December 2013, the Registrar of the Family Court sent a letter (Requisition) to Mr Headley’s then solicitors and Ms Clarke’s then solicitors requisitioning further information, to be deposed to by Mr Headley in an affidavit, concerning the fairness of the proposed division of property.
56. On 28 December 2013, Mr Headley filed in the Consent Orders Proceedings, in response to the Requisition, an affidavit (Headley Affidavit) in which he deposed that:
(a) he had received legal advice that his proposed share of property (i.e., 25%) “was less than a party would usually be expected to obtain” given the length of the marriage; and
(b) he was nevertheless content to receive that proposed share because:
i. his “priority” was to provide financial stability and security to his wife and children;
ii. as the children’s primary carer, Ms Clarke would need to balance the provision of that care with her employment obligations; and
iii. he had the “better opportunity of working and growing my business” and was better able to “build wealth again”.
57. As at the date of the Consent Orders (5 February 2014), the actual market value:
(a) each of the D Business, E Business, F Business and G Business was materially lower than the “market value” indicated in the Consent OrdersApplication;
(b) for each of the L Town Property, First Suburb N Property, Second Suburb N Property and Suburb P Property was materially higher than the "market value" indicated in the Consent Orders Application;
(c) for the 180,000 T Pty Ltd ordinary shares held by Mr Headley was materially lower than the “market value” indicated in the Consent Orders Application.
Particulars – (a) to (c)
To be provided following completion of expert reports.
58. At no time prior to the Consent Orders being made (i.e. 5 February 2014) (whether in the Consent Orders Application, the Headley Affidavit or otherwise), did Mr Headley or Ms Clarke disclose to the Family Court:
(a) the fact of the QR Proceedings;
(b) the status of the QR Proceedings;
(c) the claims made and relief sought against Mr Headley (including that Q Pty Ltd and R Pty Ltd sought, by way of equitable relief, an account of the profits of the D Business) in the QR Proceedings;
(d) that neither Mr Headley nor Ms Clarke had informed Q Pty Ltd or R Pty Ltd (or their legal representatives), or the Federal Court, of:
i. the Consent Orders Proceedings;
ii. the Consent Orders Application;
iii. the Proposed Consent Orders;
iv. the Requisition;
v. the Headley Affidavit; or
vi. the matters addressed in any of the documents in (ii) to (v) above;
(e) that the “market value” indicated in the Consent Orders Application for the D Business, E Business, F Business and G Business was, in each case, materially higher than the actual market value of the business;
(f) that the G Business:
i. was not owned by Mr Headley;
ii. was accounted for in the financial reports and tax returns of F2 Pty Ltd; or
iii. had ceased trading;
(g) that the F Business:
i. was considered by Mr Headley to be “effectively a dead business”; or
ii. had ceased trading;
(h) that the “market value” indicated in the Consent Orders Application for the L Town Property, First Suburb N Property, Second Suburb N Property and Suburb P Property was, in each case, materially lower than the actual market value of the property;
(i) that Mr Headley was the sole registered owner of the First Suburb N Property; or
(j) that the “market value” indicated in the Consent Orders Application for the 180,000 T Pty Ltd ordinary shares held by Mr Headley was materially higher than the actual market value of those shares.
59. At no time prior to the Consent Orders being made, did Mr Headley or Ms Clarke inform Q Pty Ltd or R Pty Ltd (or their legal representatives), or the Federal Court, about:
(a) the Consent Orders Proceedings;
(b) the Consent Orders Application;
(c) the Proposed Consent Orders;
(d) the Requisition;
(e) the Headley Affidavit; or
(f) the matters addressed in any of the documents in (b) to (e) above.
60. On 5 February 2014, the Family Court made consent orders (Consent Orders), in the Consent Orders Proceedings, in the form of, and to the same effect as, the Proposed Consent Orders (see [53]-[54] above).
It is clear, from those points of claim, that the Applicant Trustee in Bankruptcy has tasked himself with providing evidence to the Court to establish his contention that the First and Second Respondent wife and husband acted inappropriately and even unethically in either falsely stating the value of the businesses and real property at the time the Application for consent Orders was made and/or that the Respondents failed to provide the Court with material information concerning the value of those properties. Equally, it is clear that, in order to meet such a case that they have acted improperly, both the First Respondent wife and Second Respondent husband are entitled to present evidence of the market value of the businesses and real property as at the date that they are alleged to have made such a misrepresentation and/or failed to provide proper disclosure. That date is, as noted in paragraph 50 of the Points of Claim document, 2 December 2013.
In other words, there is only one date that a valuation can be made that can have relevance to each potentially relevant event that arises from the Applicant Trustee in Bankruptcy’s Points of Claim document. Those dates being the date that the Application was made for consent orders on 2 December 2013, the date when the Second Respondent the husband filed an Affidavit responding to requisitions made by the then Registrar being 28 December 2013 and, finally, the third alternative being the date that consent Orders were actually made by the Court, being 5 February 2014. That one date is the earliest of the possibly relevant dates being 2 December 2013.
There is an absence of evidence of any event, circumstance and/or phenomena occurring in the period from 2 December 2013 to 28 December 2013 or in the period from 2 December 2013 and 5 February 2014 that could reasonably be inferred to have impacted upon the value of the businesses or the properties. In those circumstances, having regard to proportionality of costs, it was entirely appropriate for the Registrar to require valuations to be provided at the one date that covered all three (3) potentially relevant events, being those dates that are described in the immediately preceding paragraph.
If, however, the Applicant Trustee in Bankruptcy is of the view that he will be in a position, at the hearing of this matter, to present evidence that there was such an event, circumstance and/or phenomena that occurred between 2 December 2013 and 28 December 2013, or, between 2 December 2013 and 5 February 2014 that impacted on the value of the business and/or properties during those periods, the Court will not, at this stage of the proceedings, lock him out of that potential argument.
I will, therefore, make an order permitting the Applicant Trustee in Bankruptcy, if he so chooses, to send a letter to the valuers requesting that they provide a brief supplementary report addressing the issue as to whether there was an event, circumstance or occurrence that impacted upon the businesses and the properties or the market generally, in the period between 2 December 2013 and either or both of 28 December 2013 and 5 February 2014 such that the valuers would provide a different value of the businesses and properties as at those additional dates. The cost of obtaining that supplementary report shall be borne by the Applicant Trustee in Bankruptcy.
Documents to provide to the single expert valuer
The second issue relates to whether the letters of instruction to the single expert valuer of the business interests should be amended to refer to additional facts and documents which the Applicant Trustee in Bankruptcy contends should be provided to the experts, in addition to those referred to in the letters settled by the Registrar. The basis upon which it is contended that the Applicant Trustee in Bankruptcy should be permitted to do so are, set out in paragraphs 15 to 17 of the his written submissions, as follows:
Matters known at date of assessment
15. There is also no reason (in the Rules or as a matter of principle or logic) that, where a valuer is undertaking an historic valuation (e.g., as at 5 February 2014) that the expert should not have available (or be entitled to rely upon, to the extent he or she considers appropriate and necessary, given the valuation methodology adopted) materials that post-date the historic valuation date (i.e., 5 February 2014), but:
(a) are relevant to the value of the asset as at that date (e.g., in the case of a building valuation, a later report showing that there were defects in the foundation, such that, now knowing that position, the value of the building at the valuation date takes into account that defect); or
(b) otherwise provide information about the asset, relevant to its valuation, known as at the valuation date (e.g., again with the building valuation, a later council record indicating that approval was provided, prior to the valuation date, for redevelopment of the building).
16. This approach is consistent with the following statements of Gleeson CJ and McHugh, Gummow, Kirby and Heydon JJ in HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 at [39] (footnotes omitted):
... in Kizbeau Pty Ltd v W G & B Pty Ltd this Court pointed out that, in many fields of law, assessments of compensation or value at one date are commonly made taking account of all matters known by the later date when the court’s assessment is being carried out. This has been so in relation to the remarriage of widows, the termination of a dependency by early death after the date from which damages were to be assessed, the death of a person having a claim for personal injuries which was unexpectedly early and unrelated to those injuries, rises in wage rates, assessing the value of reversionary life interests which never came into possession, valuing annuities, and assessing compensation for the acquisition or destruction of property rights.
(Emphasis added)
17. As such, materials post-dating a valuation date can (and often are) relied upon in determining an historic valuation - and, in any event, for the purposes of the extant Application in a Case, it is reasonable to expect that an expert valuation witness, such as Ms B, would or may wish to consider them in undertaking historic valuations of the Businesses.
(As per the original)
It is important, however, to appreciate the context in which the single expert valuers are, in this case, required to provide their valuations. They are required to establish the merit or otherwise of the Applicant Trustee in Bankruptcy’s contention that the First and Second Respondent wife and husband misrepresented the true market values of the businesses as at the date they filed an Application for consent Orders to resolve their family law property dispute. As a matter of fairness, whether such a misrepresentation occurred should reasonably be assessed on the basis of information that was available to the market as at the date of the alleged misrepresentation.
In that context, in their joint decision in HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640, Kirby and Hayden JJ noted that the trial judge, in the matter before them, was tasked with the responsibility of assessing damages based on the true value of property as opposed to the market value of property. That distinction is explained at [45]-[46] of their Honours joint decision, as follows:
[45] Thus, in assessing damages in this case, the court is not limited to the assessment of risk as at 28 April 1997, but is entitled to take account of how those risks had evolved into certainties at dates after the date on which the comparison of price and true value was being made. The market values Mr Dodds arrived at may well have been entirely accurate; if so, they demonstrated not that he was in error, but that the market assessment of the risk was erroneous. In short, the market value in 1997 was not a “true value, but a mistaken estimate of … value”.
[46] Figures worked out by analysing what willing but not anxious buyers and willing but not anxious sellers would agree on, without taking account of subsequent events, may correspond with market value; but they do not necessarily correspond with true value because the market can operate under some material mistakes. In particular, some material factor may not be apparent to it. A mistake of this kind, it seems likely, was present here. Though the market value on 21 April 1997 was $400,000, and in July 1997 it was $375,000, one matter was not apparent then which was apparent later. The trial judge found that $130,000 was "the value of the land more or less since it became apparent that tenants were largely unavailable except at minimal rentals." That unavailability was an inevitable consequence of the Beach Road Shopping Centre once it was completed, but the perception of the likely effect of that completion was obscure in 1997, and only became clearer from the latter part of 1998 on.
(Citations omitted)
In other words, in that case, in assessing loss and damage arising from the impugned conduct, which was the subject of that case, it was necessary to have regard to events which occurred subsequent to the impugned conduct but arose as a result of the fact that the impugned conduct had occurred.
In this case, at the August hearing, the Court will be tasked with determining whether the First and Second Respondent wife and husband misrepresented by act or omission, including nondisclosure of facts, the true market value of the businesses and properties at the time that the representations were made in support of their Application for consent Orders.
On that basis, the First and Second Respondent wife and husband contend that information postdating the consent Orders should not be provided to the valuers and, in that respect, contend that the consideration of any such subsequently occurring events may result in the valuers’ reports being flawed and subject to challenge on the basis of the valuers having regard to irrelevant material.
In response, however, the Applicant Trustee in Bankruptcy contends that the concept of a “willing but not anxious buyer” necessarily involves that buyer being properly informed of relevant facts material to a proper assessment of the market value of the properties as at the time of the purchase. In that context, the Applicant Trustee in Bankruptcy contends that information and documents that came into existence in the period subsequent to the date of the consent Orders indicates that the representations of the Second Respondent husband concerning the value of the businesses and properties were inaccurate and/or inadequate. It is, therefore, contended that unless the valuers, and specifically Ms B, is provided with that information, she will not be in a position to properly value the businesses from the perspective of a properly informed “willing but not anxious buyer”.
The difficulty for the Court, at this stage of the proceedings, is that it is simply not possible to go through each and every document that the Applicant Trustee in Bankruptcy proposes to present to the valuers to determine what category they fall into. That is, to make an assessment as to whether the documents contain a statement or representation that, if known to the notional “willing but not anxious buyer”, as at the date of the valuation, would have impacted upon the amount that such a buyer would have been prepared to pay for the business or businesses. That task should appropriately be conducted by the single expert valuer.
At the same time, however, it is both unfair to the valuers and wasteful of the parties resources to inundate the single expert valuers with binders of documents that may have no relevance to the task they are required to undertake to assist the parties and the Court to determine the market value of the businesses and properties at the specified date. Clearly, the Court expects the parties and, specifically, their legal advisers, will use sound professional judgment and will act reasonably by conducting themselves with common sense and good faith in determining what facts and/or documents should be presented to the valuers to assist them to undertake their important task.
Accordingly, I propose making a supplementary order requiring the parties to confer with a view to providing the valuers with a statement of facts pursuant to r 15.54(3) of the Rules. I will also make a further order that, in the event of the parties being unable to reach agreement regarding such an agreed statement of facts, that each party, individually, should they so choose, provide the valuers with a statement of facts in accordance with r 15.54(4)(a) of the Rules.
In light of the supplementary orders that I will make, it is unnecessary to amend the letters of instruction settled by the Registrar on 23 April 2020.
Conclusion and orders
For all of the above reasons, I make the Orders as set out at the commencement of my reasons for judgment.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 19 June 2020.
Associate:
Date: 19 June 2020
Mills Oakley
…
Attn: Samuel Barber
Watson Mangioni
…
Attn: Michael France
Jo-Anna F.S. Moy Solicitor
…
Attn: Jo-Anna Moy
15 April 2020
Ms B
C Valuers
…
By Email only: …
Dear Ms B
LINTON v CLARKE & ANOR, FAMILY COURT SYC 3545/2016
As you are aware, the parties to the above proceedings wish jointly to engage you to prepare an expert report for reference in the proceedings.
Mills Oakley acts for Applicant, Mr Linton; Watson Mangioni acts for the First Respondent, Ms Clarke; and Jo-Anna F S Moy Solicitors acts for the Second Respondent, Mr Headley.
Set out in Schedule 1 is a list of background documents with hyperlinks to the documents. Given the circumstances of COVID-19, we propose only to provide you with those documents via the hyperlinks.
A.Valuations
Your role will be to prepare a report providing your opinion on, separately, the market values, as at [28 December 2013], of each of:
a.the businesses:
i. "D Business" (D Business);
ii. "F Business" (F Business); and
iii. "G Business" (G Business);
b.a 55%, and alternatively 75%, ownership interest in the business "E Business" (E Business
)); andc.180,000 ordinary shares in company T Pty Ltd (T Pty Ltd).
B.Background
Family Court consent orders
Ms Clarke and Mr Headley were previously married.
On 2 December 2013, Ms Clarke filed with the Family Court an "Application for Consent Orders" (dated 19 November 2013) (Application) (Schedule 1, item 1).
On 13 September 2013, Mr Headley's then solicitors provided to Ms Clarke's then solicitors a disclosure document (Disclosure Document) (Schedule 1, item 2).
On 28 December 2013, Mr Headley filed an affidavit with the Family Court (Schedule 1, item 3).
On 5 February 2014, the Family Court made consent orders pursuant to rule 10.4 of the Family Law Rules 2004 (Cth) (Schedule 1, item 4).
Federal Court proceedings
Prior to 2013, Q Pty Ltd and R Pty Ltd (together QR) engaged Mr Headley as general manager of their … business.
In July 2013, solicitors for QR sent a letter to Mr Headley enclosing a draft statement of claim (Schedule 1, item 5) containing allegations against Mr Headley (including concerning several of the businesses referred to at [4] above).
On 6 August 2013, QR commenced proceedings in the Federal Court by filing and serving a statement of claim (Schedule 1, item 6).
On 2 October 2013, Mr Headley filed and served, in the Federal Court proceedings, a defence (Schedule 1, item 7).
In November 2014,
there wasa finaldetermination madehearing took place and judgment was entered against Mr Headley including an order that he pay compensation to QR in theabove proceedings.amount of $2,273,374.
Debtor's Petition
On about 23 September 2014, Mr Headley presented a "Debtor's Petition" (Schedule 1, item 8) and "Statement of Affairs" (Schedule 1, item 9).
On 24 September 2014, Mr Headley became a bankrupt, with the Official Trustee as the trustee. On 29 October 2014, Mr Linton replaced the Official Trustee, in that bankruptcy, as the trustee.
In April 2016, Mr Headley was again made a bankrupt, with the Official Trustee as the trustee. On 24 June 2016, Mr Linton replaced the Official Trustee, in the second bankruptcy, as the trustee.
As part of the second bankruptcy, on about 18 April 2016 Mr Headley completed a "Statement of Affairs" (Schedule 1, item 10).
On 25 September 2017, Mr Headley was discharged from the first bankruptcy; and, on 19 April 2019, he was discharged from the second bankruptcy.
These Family Court proceedings
These proceedings were commenced on 7 June 2016, upon Mr Linton filing and serving an "Initiating Application".
In the proceedings, Mr Linton seeks an order to have the Consent Orders set aside, pursuant to s 79A of the Family Law Act.
C.Businesses and shares
D Business
In the Disclosure Document, Mr Headley stated in relation to the D Business:
Sole proprietorship commenced in 1994. My main consulting business, providing … services.
At the items in Schedule 1 indicated below are copies of the following documents relating to the D Business:
a."Accountants Report" for the year ended 30 June 2011 (item 11);
b."Accountants Report" for the year ended 30 June 2012 (item 12); and
c."Accountants Report" for the year ended 30 June 2013(item 13);
d.ASIC extract for the business name "D Business" (item 13).
In May 2014, pursuant to a "Contract for sale of business" (Schedule 1, item 14), Mr Headley sold D Business and E Business to the company D Pty Ltd as trustee for the D Discretionary Trust (D Trust) for $150,000.
At the items in Schedule 1 indicated below are copies of the following documents relating to D Pty Ltd and the D Trust:
ASIC
a.extract (current and historical) with company details (item 15);
b.Financial report for the year ended 30 June 2015 (item 16); and
c.Tax return for the year ended 30 June 2015 (item 17).
Additional information concerning the D Business is contained in various of the documents that are listed in Schedule 1 and referred to in Section B above.
E Business
In the Disclosure Document, Mr Headley stated in relation to the E Business:
Registered business name with myself. Commenced late 2012. Tentative verbal agreement of 55% Mr Headley, 45% Mr U but this is not working out (to discuss. Provides party hire services under franchise arrangement to Sydney metro area.
At item 18 in Schedule 1 is an ASIC extract for the business name "E Business".
Financial Statements and Profit and Loss Statements for 2013 are available.Additional information concerning the E Business is contained in various of the documents that are listed in Schedule 1 and referred to in Section B above; as well as at [24] above.
F Business
In the Disclosure Document, Mr Headley stated in relation to the F Business:
Originally registered by Mr U (see F2 Pty Ltd below) to run his … business, but taken on by myself in 2009 because W Organisation liked the name for their PR campaigns. Was used to bill … operators for a period but effectively a dead business now. Can lapse.
At the items in Schedule 1 indicated below are copies of the following documents relating to the F Business:
a."Accountants Report" for the year ended 30 June 2011 (item 11; same as at [23(a)] above);
b."Accountants Report" for the year ended 30 June 2012 (item 12; same as at [23(b)] above);
c.“Accountants Report” for the year ended 30 June 2013 (item 13; same as at [23(b)] above
d.ASIC extract for the business name "F Business" (item 19).
Additional information concerning the F Business is contained in various of the documents that are listed in Schedule 1 and referred to in Section B above.
Reference is also made, in various of the documents referred to in Section B above (including the Disclosure Document: see [30] above), to the company F2 Pty Ltd. At item 20 in Schedule 1 is an ASIC extract for that company.
G Business
In the Disclosure Document, Mr Headley stated in relation to the G Business:
Business name registered with my sister (Ms V). Purchased from Liquidators and now trading. Provides … services to approximately 100 sites.
At item 21 in Schedule 1 is an ASIC extract for the business name "G Business".
Additional Documents available;
e.Accountants Report" including balance sheet and profit and loss statements for the year ended 30 June 2011 ;
f."Accountants Report" including balance sheet and profit and loss statements for the year ended 30 June 2012 :
g.“Accountants Report” including balance sheet and profit and loss statements for the year ended 30 June 2013
Additional information concerning the G Business is contained in various of the documents that are listed in Schedule 1 and referred to in Section B above.
T Pty Ltd
At item 22 in Schedule 1 is an ASIC extract for company T Pty Ltd
Documents evidencing the purchase of the shares by Mr Headley in March 2010.shareholder detailsLast trade records for shares in T Pty Ltd prior to consent orders.Letter from CEO to second respondent dated 25 September 2013
Mr Headley's tax returns
At the items in Schedule 1 indicated below are Mr Headley's "Individual Tax Returns" for the years ended:
a.30 June 2011 (item 23);
b.30 June 2012 (item 24); and
c.30 June 2015 (item 25).
The parties do not presently have available to them the Individual Tax Returns for the years ended 30 June 2013 or 30 June 2014, but are seeking to obtain copies and, if they are successful in doing so, will provide them to you.
D.Your appointment
Your appointment will be in accordance with Division 15.5 of the Family Law Rules 2004. You should ensure that you review those rules, when you consider whether you are prepared to accept this appointment; and, if you do, in preparing your report.
Please note that your report must:
a.be addressed to the "Family Court of Australia" and to the parties instructing you;
b.attach a summary of the instructions given to you and a list of any documents which you rely upon in preparing the report; and
c.in due course, swear or affirm a verifying affidavit.
As to rule 15.63 in the Family Law Rules, a draft affidavit will be provided to you in due course to which your report will be annexed (along with a copy of your curriculum vitae and the instructions provided to you.
Please also consider and confirm your availability for the trial (currently set down for 17 to 21 August 2020) and inform us if there is any issue with you attending (whether by video link or in person, depending on arrangements then in place in respect of the COVID-19 virus) for cross-examination, if required by any party. If you are not required for cross-examination, then you will not need to appear.
In considering whether you agree to be appointed, we also ask that you provide, as best you can at this time, a fee estimate for the preparation of your report.
Your costs for the preparation of the report (and appearance at trial, if required) will be paid in the following proportions: 50% by the Applicant; and 50% by the Respondents together. Your tax invoices should be issued to Mr Linton, Ms Clarke and Mr Headley, care of their respective legal representatives: see [2] above). The parties’ legal representatives are not responsible for any of your costs.
Finally, please ensure that all of your communications are in writing (preferably email) and sent to all parties' legal representatives. We also note that further instructions to you must be in writing and counter-signed by each of the parties' legal representatives.
Please let us know if you require any further information or material for the purposes considering this appointment or preparing your report.
We look forward to receiving your fee estimate as soon as possible.
Yours sincerely
| Samuel Barber Mills Oakley | Michael France | Jo-Anna Moy |
Schedule 1: Documents
| Item | Name (hyperlinked) | Date |
| 1 | Application for Consent Orders | 26.11.2013 |
| 2 | Disclosure Document | 13.03.2013 |
| 3 | Affidavit of Mr Headley | 28.12.2013 |
| 4 | Orders | 05.02.2014 |
| 5 | Letter to Mr Headley enclosing Draft SOC | 17.07.2013 |
| 6 | Statement of Claim | 06.08.2013 |
| 7 | Defence | |
| 8 | Debtor’s Petition | 17.09.2014 |
| 9 | Statement of Affairs | 17.09.2014 |
| 10 | Statement of Affairs | 15.04.2016 |
| 11 | Accountants Report (FY2011) - D Business & F Business | 30.04.2012 |
| 12 | Accountants Report (FY2012) - D Business & F Business | 31.05.2013 |
| 13 | ASIC extract - business name “D Business” | 31.03.2020 |
| 14 | Contract for sale of business | 05.2014 |
| 15 | ASIC extract - company D Pty Ltd | 31.03.2020 |
| 16 | Financial report (FY2015) - company D Pty Ltd | Undated |
| 17 | Tax return (FY2015) - company D Pty Ltd | Undated |
| 18 | ASIC extract - business name “E Business” | 31.03.2020 |
| 19 | ASIC extract - business name “F Business” | 06.04.2020 |
| 20 | ASIC extract – company F2 Pty Ltd | 15.04.2020 |
| 21 | ASIC extract - business name “G Business” | 31.03.2020 |
| 22 | ASIC extract - company T Pty Ltd | 31.03.2020 |
| 23 | Individual Tax Returns (FY2011) - Mr Headley | Undated |
| 24 | Individual Tax Returns (FY2012) - Mr Headley | Undated |
| 25 | Individual Tax Returns (FY2015) - Mr Headley | Undated |
Mills Oakley
…
Attn: Samuel Barber
Watson Mangioni
…
Attn: Michael France
Jo-Anna F.S. Moy Solicitor
…
Attn: Jo-Anna Moy
15 April 2020
Mr H
J Valuers
…
By Email only: …
Dear Mr H
LINTON v CLARKE & ANOR, FAMILY COURT SYC 3545/2016
As you are aware, the parties to the above proceedings wish jointly to engage you to prepare an expert report for reference in the proceedings.
Mills Oakley acts for Applicant, Mr Linton; Watson Mangioni acts for the First Respondent, Ms Clarke; and Jo-Anna F S Moy Solicitors acts for the Second Respondent, Mr Headley.
Set out in Schedule 1 to this letter is a list of documents to which reference is made in this letter, with hyperlinks to the documents. Given the circumstances of COVID-19, we propose only to provide you with these documents electronically (via the hyperlinks).
A. Valuations
Your role will be to prepare a report providing your opinion on:
a.the market value, as at
2[28 December 2013], of each of the following properties (title references for which are at the items in Schedule 1 indicated below):
i.K Street, L Town NSW (L Town Property) (Item 1);
ii.2 M Street, Suburb N NSW (First Suburb N Property) (Item 2);
iii.4 M Street, Suburb N NSW (First Suburb N Property) (Item 3); and
iv.O Street, Suburb P NSW (Suburb P Property) (Item 4); and
b.the market value, as at the date of your report, of each of:
i.the Suburb P Property; and
ii.the property Y Street, Z Town (Z Town Property) (a copy of the title reference for which is at Schedule 1, item 5).
B.Background facts
Ms Clarke and Mr Headley were previously married.
On 2 December 2013, Ms Clarke filed with the Family Court an "Application for Consent Orders" (dated 19 November 2013).
On 17 December 2013, the Registrar sent a letter to Mr Headley and Ms Clarke's then solicitors requisitioning further information, to be provided by Mr Headley in an affidavit.
On 28 December 2013, Mr Headley filed an affidavit with the Family Court in response to the Registrar's letter.
On 5 February 2014, the Family Court made consent orders pursuant to rule 10.4 of the Family Law Rules 2004 (Cth) (Consent Orders) (Schedule 1, item 6).
In April 2014, the First Suburb N Property was sold for $896,000.
In November 2014, the Second Suburb N Property was sold for $975,000.
In May 2016, the Z Town Property was purchased for $520,000.
In July 2016, the L Town Property was sold for $1,900,000.
In these proceedings, Mr Linton seeks an order to have the Consent Orders set aside, pursuant to s 79A of the Family Law Act 1975 (Cth).
C. Your appointment
Your appointment will be in accordance with Division 15.5 of the Family Law Rules. You should ensure that you review those rules, when you consider whether you are prepared to accept this appointment; and, if you do, in preparing your report.
Please note that your report must:
a.be addressed to the "Family Court of Australia" and to the parties instructing you;
b.attach a summary of the instructions given to you and a list of any documents which you rely upon in preparing the report; and
c.in due course, swear or affirm a verifying affidavit.
As to rule 15.63 in the Family Law Rules, a draft affidavit will be provided to you in due course to which your report will be annexed (along with a copy of your curriculum vitae and the instructions provided to you.
Please also consider and confirm your availability for the trial (currently set down for 17 to 21 August 2020) and inform us if there is any issue with you attending (whether by video link or in person, depending on arrangements then in place in respect of the COVID-19 virus) for cross-examination, if required by any party. If you are not required for cross-examination, then you will not need to appear.
In considering whether you agree to be appointed, we also ask that you provide, as best you can at this time, a fee estimate for the preparation of your report.
Your costs for the preparation of the report (and appearance at trial, if required) will be paid in the following proportions: 50% by the Applicant; and 50% by the Respondents together. Your tax invoices should be issued to Mr Linton, Ms Clarke and Mr Headley, care of their respective legal representatives: see [2] above). The parties’ legal representatives are not responsible for any of your costs.
Finally, please ensure that all of your communications are in writing (preferably email) and sent to all parties' legal representatives. We also note that further instructions to you must be in writing and counter-signed by each of the parties' legal representatives.
Please let us know if you require any further information or material for the purposes considering this appointment or preparing your report.
We look forward to receiving your fee estimate as soon as possible.
Yours sincerely
| Samuel Barber Mills Oakley | Michael France Watson Mangioni | Jo-Anna Moy Jo-Anna F.S. Solicitor |
Schedule 1: Documents
| Item | Name (hyperlinked) | Date |
| 26 | Title search - L Town Property | 08.04.2020 |
| 27 | Title search - First Suburb N Property | 08.04.2020 |
| 28 | Title search - Second Suburb N Property | 08.04.2020 |
| 29 | Title search - Suburb P Property | 08.04.2020 |
| 30 | Title search - Z Town Property | 08.04.2020 |
| 31 | Consent Orders | 05.02.2014 |
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