Loomis & Ors and Thurston - [2014] FamCA 305

FAMILY COURT OF AUSTRALIA

LOOMIS AND ORS & THURSTON

[2014] FamCA 305

FAMILY LAW – PROPERTY – Application for removal of caveat – Appointment of valuer for the valuation of property of the parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – Where pending compliance with disclosure orders, the wife seeks a stay of proceedings – Transfer – Where the parenting component of the substantive proceedings is transferred back to the Federal Circuit Court of Australia.

Family Law Act 1975 (Cth) s 33B

Family Law Rules 2004 (Cth)
Judiciary Act 1903 (Cth) s 79
Land Title Act 1994 (Qld) s 127
Property Law Act 1974 (Qld)

Burman v AGC (Advances) [1994] 1 Qd R 123
Cousins Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520
Ex partGoodlet & Smith Investments Pty Ltd [1983] 2 Qd R 792
Re Jorss’ Caveat [1982] Qd R 458
Rockett v Evans [2008] QSC 227

FIRST APPLICANT:

Mr Loomis

SECOND APPLICANT:

L Limited

THIRD APPLICANT:

C Pty Ltd

RESPONDENT:

Ms Thurston

FILE NUMBER:

BRC

1010

2012

DATE DELIVERED:

13 May 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24 April 2014

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT:

Mr Hanlon

SOLICITOR FOR THE FIRST APPLICANT:

Rosen Lawyers

FOR THE SECOND APPLICANT
AND THIRD APPLICANT:

Mr Loomis in person

SOLICITOR FOR THE RESPONDENT:

Mr Mitchell

Mitchell Lawyers

Orders

Pursuant to s 33B of the Family Law Act 1975 (Cth) the competing applications of Mr Loomis and Ms Thurston for parenting orders are transferred by the Family Court, of its own motion, to the Federal Circuit Court of Australia at the Brisbane Registry and the Federal Circuit Court is requested to list them for trial as soon as the matter can be conveniently accommodated in that Court.
Unless otherwise agreed in writing between the relevant parties, valuations of all of the shareholdings, in addition to any other interests of Mr Loomis and Ms Thurston such as loans to or from the companies, in the companies, L Limited (a company registered in the United Kingdom), C Pty Ltd and T Pty Ltd as at 30 June 2013, or such later date as might be determined by the selected single expert, are to be obtained from a single expert and filed attached to an affidavit of that single expert as soon as is practicably possible, such affidavit to be prepared and caused to be filed by solicitors acting on behalf of Mr Loomis or by Mr Loomis himself if he has no solicitors on the record as acting for him at the time.
The single expert accountant who shall provide the valuations shall be chosen by Ms Thurston within seven days of the date of these orders from the following list:
(i)Mr A, B Accountants, … , Brisbane; or
(ii)Mr D or Mr Mr H, E Accountants, … , Brisbane; or
(iii)Ms F, G Accounting, …, Newcastle NSW … .
Ms Thurston shall immediately inform Mr Loomis in writing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Loomis & Ors and Thurston

Details

AGLC: Loomis & Ors and Thurston [2014] FamCA 305
Case: [2014] FamCA 305
Decision Date: 13 May 2014

CaseChat Overview and Summary

In the Family Court of Australia, Justice Forrest presided over applications made by Mr Loomis and Ms Thurston concerning property and parenting matters. The dispute involved the valuation of various assets, including company shareholdings, a United Kingdom property, personal items, and a superannuation fund, as well as the transfer of parenting proceedings.

The court was required to determine the process for obtaining valuations of the parties' significant assets, including shareholdings in three companies (L Limited, C Pty Ltd, and T Pty Ltd), a property located in the United Kingdom, specific personal items, and interests in the R Superannuation Fund. Additionally, the court needed to address the transfer of parenting proceedings between the Family Court and the Federal Circuit Court.

Justice Forrest ordered the transfer of the parenting component of the proceedings to the Federal Circuit Court. For the property matters, the court directed the appointment of single experts to value the specified assets. Ms Thurston was given the responsibility of selecting these experts from provided lists for company shareholdings, the UK property, and personal items. The court also mandated that the same expert accountant would value the superannuation fund and address disputed factual issues regarding withdrawals and fund compliance. The costs of these valuations were to be initially shared equally between the parties, with the ultimate apportionment to be determined at trial. The court also set deadlines for updated financial statements and vacated a previously scheduled hearing, listing a new hearing date.

Orders

Orders of the court

Pursuant to s 33B of the Family Law Act 1975 (Cth) the competing applications of Mr Loomis and Ms Thurston for parenting orders are transferred by the Family Court, of its own motion, to the Federal Circuit Court of Australia at the Brisbane Registry and the Federal Circuit Court is requested to list them for trial as soon as the matter can be conveniently accommodated in that Court.

Unless otherwise agreed in writing between the relevant parties, valuations of all of the shareholdings, in addition to any other interests of Mr Loomis and Ms Thurston such as loans to or from the companies, in the companies, L Limited (a company registered in the United Kingdom), C Pty Ltd and T Pty Ltd as at 30 June 2013, or such later date as might be determined by the selected single expert, are to be obtained from a single expert and filed attached to an affidavit of that single expert as soon as is practicably possible, such affidavit to be prepared and caused to be filed by solicitors acting on behalf of Mr Loomis or by Mr Loomis himself if he has no solicitors on the record as acting for him at the time.

The single expert accountant who shall provide the valuations shall be chosen by Ms Thurston within seven days of the date of these orders from the following list:

(i) Mr A, B Accountants, … , Brisbane; or

(ii) Mr D or Mr Mr H, E Accountants, … , Brisbane; or

(iii) Ms F, G Accounting, …, Newcastle NSW … .

Ms Thurston shall immediately inform Mr Loomis in writing of the single expert chosen by her as soon as she has made the decision and the parties, including L Ltd and C Pty Ltd, shall each provide a letter of instruction to the selected single expert confirming that he or she has been appointed pursuant to this Court’s order to provide single expert valuation opinion in respect of all of the shareholdings and any other interests of Mr Loomis and Ms Thurston (such as loan accounts, loans or borrowings) in the said three companies.

Each of the parties shall provide the selected single expert with all and any documents or information requested of them in the process of the preparation of his or her valuation report as soon as is possible after such documents or information are requested by the single expert.

Mr Loomis shall provide to the selected single expert accountant as soon as it is able to be obtained, a copy of a valuation of the real property situated at I Street, Town J, County K in the United Kingdom, the property of L Limited, to assist the single expert accountant in the valuation of the shareholdings and Mr Loomis’s and Ms Thurston’s interests in L Limited, such valuation to be obtained in accordance with the balance of these orders.

A single expert valuation of the real property situated at I Street, Town J, County K in the United Kingdom shall be obtained as soon as is practicable from one of the following valuers chosen by Ms Thurston within seven days of the date hereof:

(a) M Valuers, … , Town N, UK; or

(b) O Valuers, … , Town N, UK; or

Ms Thurston shall immediately inform Mr Loomis in writing of the single expert real property valuer chosen by her as soon as she has made the decision and Ms Thurston, Mr Loomis and L Ltd, shall each provide a letter of instruction to the selected single expert confirming that he or she has been appointed pursuant to this Court’s order to provide a single expert report as to the current market value of the said I Street, Town J property.

Each of the parties shall provide the selected single expert real property valuer with all and any documents or information requested of them in the process of the preparation of his or her valuation report as soon as is possible after such documents or information are requested by that single expert and copies of the said single expert valuer’s report shall be provided to each of the parties by the said single expert valuer as soon as it is completed.

10.

A single expert valuation report as to the value of the Jaguar … motor vehicle Reg … , the Jet Ski, the Rolex watch, the gold bracelet, the gold ring with diamond rings, and the gold necklace shall be obtained as soon as practicable from Q Valuers and filed attached to an affidavit of the said valuer caused to be prepared and filed by the solicitors for Ms Thurston or by Ms Thurston herself if there are no solicitors on the record as acting for her at the time.

11.

Should any of the items referred to in paragraph (10) hereof have formerly been in the possession of Mr Loomis but are no longer able to be presented for valuation by Q Valuers in accordance with paragraph (10) hereof, Mr Loomis shall file and serve an affidavit in which he deposes to the explanation he gives as to why such items can no longer be presented for valuation.

12.

The same single expert accountant chosen by Ms Thurston pursuant to paragraph (3) hereof, who is to value the three companies, shall also provide a single expert report as to the value of the R Superannuation Fund and Mr Loomis’s and Ms Thurston’s interests in the said self-managed superannuation fund as at 30 June 2013, or some later date as might be determined by the said single expert and the same single expert accountant shall undertake such audit or other such necessary activities so as to provide his or her expert opinion as to the factual issues that are in dispute between Mr Loomis and Ms Thurston in respect of monies alleged to have been withdrawn from the said superannuation fund and alleged to be owing by one or both of Mr Loomis and Ms Thurston to the R Superannuation Fund, as well as his or her professional opinion as to whether the R Superannuation Fund remains a fund compliant with all statutory and regulatory provisions relating to the operation of self-managed superannuation funds.

13.

Each of Mr Loomis and Ms Thurston shall provide a letter of instruction to the selected single expert accountant confirming that he or she has been appointed pursuant to this Court’s order to provide a single expert report as set out in paragraph (12) of these Orders.

14.

Each of Mr Loomis and Ms Thurston shall provide the selected single expert with all and any documents or information requested of them in the process of the preparation of his or her report as soon as is possible after such documents or information are requested by the single expert and such documents shall include but not be limited to any and all audit reports previously prepared by the R Superannuation Fund’s SMSF auditor for any of the financial years ending from 30 June 2008 to 30 June 2013.

15.

The said single expert accountant’s report on the R Superannuation Fund shall be filed in these proceedings attached to an affidavit of that single expert as soon as is practicably possible, such affidavit to be prepared and caused to be filed by solicitors acting on behalf of Mr Loomis or by Mr Loomis himself if he has no solicitors on the record as acting for him at the time.

16.

All of the costs of obtaining single expert valuation reports as required by these Orders shall be paid in the first instance in equal shares by Mr Loomis and Ms Thurston with each of those parties having the right to make application to the Court at the trial or after the delivery of judgment following the trial for the costs of same to be apportioned in some other way as between them.

17.

Ms Thurston’s half share of the costs of obtaining the single expert valuation reports required by these Orders in the first instance shall be paid from the money held on trust for her pursuant to the Orders of this Court of 24 April 2014 in the trust account of Mitchell Lawyers and the characterisation and treatment of such payments on her behalf in these property adjustment orders proceedings shall be a matter for the Judge who, in due course, presides over the trial of the competing applications of the parties.

18.

The hearing of so much of the amended Application in a Case of Mr Loomis currently listed before Justice Hogan on 8 July 2014, not already dealt with by the Orders made on 24 April 2014 or by these Orders, is vacated and it is listed instead for hearing before his Honour Justice Forrest at 10.00 am on 4 August 2014.

19.

Each of Mr Loomis and Ms Thurston shall file and serve an updated Statement of Financial Circumstances or an affidavit in which each deposes in detail to their current financial circumstances, including assets and liabilities, superannuation interests, and weekly income and expenditure on a gross and net basis, by no later than Thursday 31 July, 2014.

20.

The question of whether Ms Thurston pays the professional costs incurred in the preparation of affidavits by Mr S, Mr U and Ms V is reserved to the Judge who presides, in due course, over the trial of the competing property adjustment orders applications of the parties.

21.

All other interim applications heard on 24 April 2014 not already dealt with by the Orders made on 24 April 2014 or by these Orders are dismissed.

22.

All directions made by Registrar Stoneham on 4 March 2014, insofar as they are applicable to the preparation for trial of the competing property adjustment orders applications of all of the parties, including the two companies party to the proceedings, and in so far as they are not otherwise varied by any of these Orders made this day, remain extant and are to be complied with by the parties.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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