Lockie and Lockie

[2007] FamCA 1726

FAMILY COURT OF AUSTRALIA

LOCKIE & LOCKIE [2007] FamCA 1726

FAMILY LAW – PROPERTY – Value of Property – Distribution of cost of translating valuation instructions – Held that each party pay half the cost of said translation and that this be taken into account by the trial judge in the final determination of these proceedings

APPLICANT: Mr Lockie

RESPONDENT: Ms Lockie

FILE NUMBER: SYF 2311 of 2004

DATE DELIVERED: 5 July 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Mushin J

HEARING DATE: 5 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barbouttis

SOLICITOR FOR THE APPLICANT: John M Barbouttis

COUNSEL FOR THE RESPONDENT: Ms Pearson

SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

On the matter of Lockie, number SYF 2311 of 2004, I order as follows:

1. That the husband and the wife forthwith sign the joint letter of request for information addressed to various pension funds in France, jointly prepared by their respective solicitors.

2. That within seven days, or such reasonable time as may be agreed between the parties, the parties cause the said letters of instructions to be translated from the English to the French language and be forthwith forwarded by their solicitors to the addressees thereof.

3. That forthwith upon receipt of responses from the said funds to the letter of request, the parties do all things and sign all documents necessary to procure the translation thereof from the French to the English language.

4. That subject to paragraph 6 hereof, the parties equally share the cost of compliance with these orders.

5. That forthwith upon the completion of the translations pursuant to paragraph (3) hereof, the parties cause the said translations to be forwarded to the single expert agreed to by them for the purpose of completing the said valuations.

6. That all questions of the ultimate disposition of compliance with these orders, together with all costs of and incidental to these applications be reserved to the trial judge.

7. That all applications, whether written or oral, seeking orders with respect to valuation of the husband's said entitlements are hereby dismissed.

8. That liberty to apply be reserved to both parties.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Lockie & Lockie is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2311 of 2004

MR LOCKIE  

Applicant

And

MS LOCKIE

Respondent

REASONS FOR JUDGMENT

1. These proceedings have come before me on several occasions in the last week on a very narrow issue, but an issue which the parties obviously find to be of great importance, being the question of certain valuations for the purpose of competing substantive applications for alteration of property interests under s 79 of the Family Law Act 1975 (Cth) (“the Act”). It appears that the husband has a number of pension and like entitlements in France and they need to be valued. The parties had, before this matter commenced before me, not only agreed upon and instructed a valuer but had provided a letter of instructions pursuant to the Family Law Rules2004 (Cth).

2. At the first hearing before me the essential issue came down to one sentence in a letter of valuation which involved the question of whether the valuer appointed by the parties as the single expert should be provided with all the relevant information on the basis of which he would then perform the valuation, or whether he should perform his own inquiries with the pension funds in France.  In resolving this issue, as previously referred to, I have found it expedient to take a pragmatic rather than a theoretically analytical approach on the basis that there is a practical exercise to be gone through and until it is completed the proceedings cannot proceed to trial.

3. As a result of several discussions between myself and counsel in the several hearings that this matter has occupied, I have finally come to the conclusion that the pragmatic answer to this problem is for the parties to jointly make an inquiry of the various pension funds.  At the last hearing I directed that the parties' respective solicitors agree on a letter of instruction which they have now done.  The only issue before me today has been the question of the cost of that exercise, and in particular the cost of the translation of the letter of instruction from English to French, and the anticipated further costs of the translation of the responses from French to English.

4. As it has not been a practical exercise to examine the respective costs so far paid by each of the parties for expert evidence, I have determined that the appropriate course is for compliance with the rules so that each of the parties will pay half of the cost of this exercise and the question of the ultimate disposition of those costs will be reserved to the trial judge.  During this hearing several issues have emerged which I now enunciate in the hope that it may be of some assistance to the trial judge in determining the disposition of costs in due course.

5. It is alleged on behalf of the wife that the initial question of whether the valuer should make inquiries, or should simply be instructed with all the material first obtained by the parties, had already been decided by the initial letter of instructions, and that the objection to it by the husband was unreasonable because he was seeking to go back, as it was alleged, on the original instruction to the valuer.  I have not made any assessment of the correctness or otherwise of that assertion but simply note it as an issue here. 

6. Two allegations are made on behalf of the husband against the wife which are also relevant.  The first of those is that the wife has taken a position by which she is deliberately delaying the finalisation of these proceedings for reasons, as far as I am concerned, that are unknown.  Again, I have not investigated that although I did suggest to counsel for the wife at an earlier hearing that her apparent refusal, or inability, to answer a direct question from me on that topic caused me to be somewhat suspicious of the wife's motives.  However, that is not a determination.

7. Secondly, on the part of the husband, it is alleged that the greater bulk of the material now sought by this letter of instruction seeking advice from the various funds in France has already been done by the husband and that the essence of the inquiries made by that letter involves a repetition of that work.  If that is correct, it may well be relevant to a decision as to the ultimate disposition of costs of this exercise.  Again, I make no decision on it but simply flag it as a possible issue which the trial judge may see fit to consider at the ultimate determination of these applications.

8. These reasons for judgment will be provided to the parties and available to the trial judge.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  18 December 2008