London and London

[2009] FamCA 1246

FAMILY COURT OF AUSTRALIA

LONDON & LONDON [2009] FamCA 1246

FAMILY LAW – PROPERTY – Expert evidence – Single Expert appointed to value the husband’s interest in a partnership in which he has a 50% interest – Further trial directions made

Family Law Act 1975 (Cth)

APPLICANT: Ms London

RESPONDENT: Mr London

FILE NUMBER: NCC 2641 of 2008

DATE DELIVERED: 3 December 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 3 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mrs Gillard,
Thomas Mitchell Solicitors

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Viney,
Viney Williams Lawyers

Orders

1. The trial of this matter is listed to continue before Justice Austin at 10:00 am on Tuesday, 20 April 2010, for a period of three days.

2. The applicant wife shall pay the trial fee, or alternatively successfully secure a waiver of such fee, no later than one month from the date of these orders.

3. The applicant wife shall file and serve any Amended Application by Friday, 5 February 2010.

4. The respondent husband shall file and serve any Amended Response by Friday, 19 February 2010.

5. The parties shall file and serve the affidavits upon which they rely by Friday, 12 March 2010.

6. Leave is granted to the applicant wife to file and serve an affidavit of herself only.

7. Leave is granted to the respondent husband to file and serve an affidavit of himself only.

8. Except as already provided, the parties shall not file any further affidavits without the leave of the court.

9. Ms D is appointed as the Single Expert Witness to prepare a report in relation to the following issues:

   a.The current valuation of the partnership named “London Partnership”, including the current valuation of the individual partner’s interests.

   b.The movement of funds into and out of that partnership during the period of the parties’ cohabitation and the effect of the movement of those funds on the current value of the partnership.

10. The parties must within seven days confer for the purpose of agreeing upon the letter of instructions to be provided to the Single Expert.

11. If the parties do not agree on the letter of instructions to be provided to the Single Expert, then at a further procedural hearing before the Court each party must provide to the Court a draft letter of instructions.

12. In order to facilitate preparation of the Single Expert’s report each party must provide the Single Expert Witness with copies of all documents relevant to the conduct of the partnership from the time of commencement of cohabitation of the parties until the present time.

13. The parties shall ensure that in the letter of instructions provided to the Single Expert the Single Expert is furnished with copies of, or has her attention drawn to, the provisions of Divisions 15.5.2 and 15.5.6 of the Family Law Rules.

14. Pending further order, the respondent husband is to pay the fees of the Single Expert Witness.

15. Liberty to restore the matter to the list for further procedural orders on seven days notice.

16. The parties shall by Wednesday, 14 April 2010, file with the Associate of Justice Austin an Agreed List of Documents.

17. The parties shall by Wednesday, 14 April 2010, file with the Associate of Justice Austin, and serve upon one another, a Case Outline Document containing:

    a.Chronology;

    b.Summary of argument;

    c.List of authorities; and

    d.List of evidential objections.

18. The parties shall confer in advance of the trial and, to the extent possible, reach agreement as to any objections raised to evidence.

19. If any party should default in the compliance with these orders the other party may contact the Associate of Justice Austin, on notice to the other party, to seek that the matter be re-listed for consideration of further orders pursuant to Rule 11.02(2) of the Family Law Rules.

20. The respondent husband shall furnish to the applicant wife within seven days hereof all tax invoices, receipts and other documents relating to the purchase of those items of property comprising a “tractor collection” and the sale of any part of that collection.

NOTATIONS

A.The wife has requested the husband to disclose the location at which the balance of the tractor collection is held and the husband has raised no objection to making such disclosure to the wife forthwith.

B.Item 9 on the agreed Balance Sheet is an investment held by the husband with the O Corporation.  That entity is in receivership and it is anticipated that the husband will receive a return from his investment with that entity calculated at approximately 70% of the capital.  The parties agree that valuation evidence in respect of that asset is unnecessary.  The solicitors for the parties are agreed that they will compute the value of that asset, for the purposes of these proceedings, mutually by reference to documents pertaining to that investment held by the husband.

C.The wife concedes that the value to be attributed to Item 13 on the agreed Balance Sheet will be nil.

D.Although the wife does not concede that the value to be attributed Item 12 on the agreed Balance Sheet is nil, the wife concedes that that asset will be of negligible overall value and the wife contends that no valuation evidence is necessary.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2641 of 2008

MS LONDON

Applicant

And

MR LONDON

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The parties in these proceedings are in dispute with respect to the property adjustment orders that ought be made between them pursuant to s 79 of the Family Law Act 1975 (“the Act”) as a consequence of their separation.

2. The proceedings were commenced by the wife by the filing of an Initiating Application on 16 October 2008.  The husband filed his Response on 21 November 2008.

3. The proceedings have passed through the conciliation phase before a Registrar in accordance with the requirements of the Act.

4. The matter was listed before me today for case management hearing.  Now available at the case management hearing are two exhibits proffered by the parties to the Docket Registrar.  Exhibit 1 is the Joint Statement of Issues, and Exhibit 2 is the Balance Sheet.  Today, I have listed the matter for trial and made procedural orders to ensure the readiness of the case for trial on the appointed date.

5. One of the issues in dispute between the parties is the value to be attributed to the husband’s 50% share in a partnership named “London Partnership”.  The husband attributes a value of $432,532 to his share of that partnership.  In raw figures that constitutes about 10% of the entire value of the matrimonial pool, by reference to the husband’s valuations.

6. The wife contends that she is unable to press for any particular value to be attributed to the husband’s partnership interest without the assistance of expert evidence.  To this point in time the wife has been reliant upon documents disclosed to her by an accountant, who is described as the accountant for both the husband and that partnership.  The wife harbours some suspicion about the totality of the disclosure and/or the accuracy of the disclosure.  In light of that suspicion, and given the significance of it as a portion of the pool of property, the wife wishes to have the asset independently valued.

7. The wife has requested the Court to appoint a single expert to value the partnership and the husband’s share therein.  The wife also requests that the expert valuer be instructed to examine the movement of funds into and out of that partnership during the cohabitation of the parties, on the basis that the movement of those funds may be influential in determining the value of the partnership and the husband’s share in it.

8. For his part, the husband acknowledges that there is presently no agreement about the value to be attributed to his share in that partnership.  Consequently, he agrees that a valuation is necessary.  He also agrees with the identity of the single expert valuer suggested by the wife. 

9. The only point of distinction between the parties is which of them is to bear responsibility for the fees of the single expert valuer in preparing the report that will be jointly requested by the parties.

10. The wife asserts that she has insufficient financial circumstances at the present time to fund the report, the cost of which is estimated to be in the vicinity of $10,000.00 to $12,000.00.  The husband concedes that in all probability the wife does not have ready access to funds of that magnitude.  Conversely, the husband admits that he is in possession of sufficient funds to meet that cost.

11. In the circumstances, fairness dictates that the husband should pay for the cost of acquisition of the report, which both parties agree will be a necessary piece of evidence to enable proper determination of the property adjustment orders between them.

12. The husband has submitted that it may ultimately prove that the acquisition of the single expert’s report was unnecessary, because of the accuracy of the valuation he has attributed to his interest in the partnership based on information given to him and disclosed to the wife by his own accountant.  Of course that may true, but that will not be known until the evidence is adduced in the course of the final hearing.

13. As a consequence of that valid submission made by the husband, the ancillary orders I have made for the appointment of the single expert will require the husband’s payment of the single expert’s fees as an interim measure only.  The final responsibility for the single expert’s fees will be determined in the course of the adjudication of the final hearing.

14. There is one further matter of potential controversy between the parties.  The husband is unconvinced that it will be a necessary component of the work undertaken by the single expert that she examine the movement of funds in and out of the partnership over the period of the parties’ cohabitation.  The husband is not satisfied that the movement of those funds will necessarily have any influential effect upon the valuation of the partnership and his interest in it. 

15. Again, he may well be right about that once the final evidence is in. Whether it ultimately proves that it was necessary to request the single expert to investigate those matters is an issue that can be solved by an appropriate order for costs at the time of the final hearing.

16. For those reasons I was persuaded to make the orders that I have already announced.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  3 December 2009