Maheris and Prentice

[2009] FamCA 861

FAMILY COURT OF AUSTRALIA

MAHERIS & PRENTICE [2009] FamCA 861

FAMILY LAW – PROPERTY AND FINANCIAL ISSUES - Case management - Valuation of property – Husband's alleged refusal to co-operate with valuation - appointment of valuer - Registrar authorised to sign pursuant to s.106a of the act - Orders stayed for a period to permit husband to inform his brother the co-owner of the property - Order for costs made as against husband

Family Law Act 1975 (Cth)

APPLICANT: MS MAHERIS

RESPONDENT: MR PRENTICE

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 3 SEPTEMBER 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 SEPTEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STRUM

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT both parties have until 18 September 2009 to comply with the provisions of paragraph 5 of the Order made 7 August 2009 and to provide full and proper disclosure of documents and file an affidavit of documents with the Court.

2. THAT pursuant to s. 106A of the Family Law Act 1975 (Cth) a Registrar of the Melbourne Registry of the Family Court of Australia be forthwith appointed to execute in the name of the husband the letter of instructions to the single expert valuer, V Real Estate Valuers, in the form prepared by the solicitors for the wife to ensure compliance with paragraph 3 of the Orders made 7 August 2009 and further to do all such acts and things as is necessary to give validity and operation to any such letter or other document of or incidental thereto.

3. THAT pursuant to Family Law Rules 15.46(f) and (g) the single valuation expert, V Real Estate Valuers, forthwith inspect and value the following properties:

   §1 K Road, K;

   §B Street, P;

   §M Street, M;

   §2-4 K Road, K

   for the purposes of obtaining and presenting a valuation of each property and, in the case only of the property situate at 2-4 K Road such valuation(s) is to be calculated as at each of:

   §17 July 1997;

   §16 September 2007; and

   §as at the current market date.

4. THAT the valuation as to 2-4 K Road is to be stayed and not occur before 12.00 noon Monday 14 September 2009 (but this stay does not impact upon the valuation timetable for either of the other three properties).

5. THAT the wife’s solicitors, Taussig Cherrie & Associates are hereby authorised to provide all necessary instructions to and to liaise with the appointed single expert valuation expert, V Real Estate Valuers:

   (a)         in writing;  and/or

   (b)orally with such oral instructions to be confirmed in writing forthwith and a copy of all such written instructions or confirmation thereof is then to be provided to the husband.

6. THAT the husband, as one of two registered proprietors of the real property situate at and known as 2-4 K Road, K in the State of Victoria, and as tenant in common of that real property, together with his brother Mr N Prentice, do all such acts and things and give all necessary and proper instructions within his power and sign all such documents as may be required to make that real property available for both internal and external inspection by the single expert valuer, V Real Estate Valuers.

7. THAT on or before 18 September 2009 the solicitors for the wife advise the husband’s brother, at the address in Greece provided by the husband, of their application before the Court insofar as it may impact upon the property at 12-4 K Road, K and so as that he is on notice as to proceedings in this Court.

8. THAT the solicitor for the wife file an affidavit annexing such letter and in compliance with the Order within seven (7) days of the posting of such letter.

9. THAT liberty is reserved to the solicitors for the wife and the husband to apply for any proper order sought or raise any enforcement issue with the Court on proper material filed and with seventy-two (72) hours notice given to the other party.

10. THAT otherwise the wife’s application in a case filed 26 August 2009 and the husband’s response thereto filed 1 September 2009 be dismissed.

11. THAT the Form 2 application of the wife previously filed 30 June 2009 be dismissed.

12. THAT the extempore reasons for judgment delivered this day be transcribed, placed upon the Court file and be made available to the parties.

13. THAT the husband pay the wife’s costs of and incidental to the hearing this day, such costs to be fixed in the sum of $3,700 and payment thereof be stayed pending the hearing and determination of the s.79 applications before the Court or until 3 December 2009.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11939 of 2007

MS MAHERIS

Applicant

And

MR PRENTICE

Respondent

REASONS FOR JUDGMENT

1. The matter of Prentice and Maheris is yet again before me on interim applications and general case management issues.  It is only the property and financial matters and not the child matters before the court this day.  Mr Strum of counsel again appears for the wife.  The husband now appears in person and no longer has legal representation and has filed an appropriate Notice of Address for Service.

2. This matter was last before me on 7 August 2009 and, on that occasion, I delivered extempore reasons for judgment on interim property, financial and valuation issues and made orders of the court.

3. I have those orders before me and they incorporate orders in respect of the property in Greece and otherwise orders as to valuation of the properties in Australia.  Specifically there is an order that the husband had until 4 September 2009 to disclose and thereafter make available for inspection and copying all documents of and as are relevant to financial and property issues before the court, not the subject of proper objection taken.  That in itself was an extension of an earlier order and so, on any view of the procedural aspects in preparation and filing of documents, there has been a level of generosity extended to the parties, and certainly to the husband, to file documents.

4. I foreshadowed in his response to the wife's interim application filed 26 August 2009 the husband has this day sought an extension of the period of time in which he is to file his further documents and, by that response filed 1 September 2009 he has sought an extension until 18 September.  Whilst there was some reluctance on behalf of counsel for the wife I have indicated in the particular circumstances of this case and, given that the current date for the defended hearing is not until 30 November 2009, I will give that extension until 18 September in respect of both the filing of the affidavit of documents and disclosure of documents and, I understand, the further trial affidavit and extensive evidence of the husband which he outlined in his submissions to me this day.

5. The matter is before the court today because the wife filed an application in a case, on 26 August 2009, returnable this day seeking orders:

   §for a Registrar of the court to be appointed pursuant to section 106A to sign the letter of appointment and instructions to the firm V Real Estate Valuers;

   §in the alternative, for orders pursuant to Family Law Rules 15.46(f) and (g);

   §for costs of and incidental to the hearing this day on an indemnity basis.

6. In the course of submissions from her counsel the wife proposes, and seeks leave for, an oral application to be made, to the following additional order:

   “That the husband, as one of two registered proprietors of the real property situate at and known as [2-4 K Road, K], in the State of Victoria, and as a tenant‑in‑common of the said real property with his brother [N Prentice], do all such acts and things and give all necessary and proper instructions within his power and sign all such documents as are required to make available that said real property for both internal and external inspection by the appointed single expert valuer, [V Real Estate Valuers]”.

7. That further order was read in court by Mr Strum and I have asked the husband to confirm his knowledge and understanding of what is there sought.  In the circumstances there is no inconvenience or additional delay or concern to the husband and I therefore grant leave for that oral application to be made.

8. On 7 August 2009 I delivered an extempore judgment which dealt with property and valuation matters then before the court.  Those reasons have been made available to all parties and the husband has acknowledged reading that document and the accompanying orders.  In those reasons I particularly identified issues of and concerning the property at 2-4 K Road, K.  Those matters are dealt with in some length from paragraph 5 of that judgment onwards.  What I was then told by the husband was that he and his brother were joint owners of the property and that the husband had sold or entered into a contract to sell his 50 per cent interest as tenant‑in‑common therein to his brother for a purchase price of $175,000, as to that 50 per cent share, and with a delayed 20‑year settlement date.  I incorporate within the reasons for judgment of this day all relevant paragraphs of that earlier ex tempore judgment which I have both re-read and reflected upon this day and have evaluated for the purposes of just and proper orders that I will make in respect of the current interim application now before me.

9. It would appear that there are no current objections to the appointment of the single expert valuation firm or their valuation of any other of the properties identified in my previous order of 7 August 2009.  The dispute solely concentrates upon the property at 2-4 K Road, K.  The wife relied upon the affidavit of her solicitor sworn and filed herein and that sets out in much detail, and with many annexures, the various issues that have arisen since the last hearing.  In particular I have read those accompanying letters and the proposed responses of the husband thereto.  I find that affidavit is supportive of the various interim orders sought by the wife and again I will now evaluate the propriety of those orders sought.

10. The husband’s response seeks that the wife’s application be dismissed.  In support he has filed an affidavit on 1 September 2009, which again I have read, and inclusive of the significant annexures thereto.  The husband stated that shortly after my earlier orders of 7 August 2009 he telephoned his brother, who resides in Greece, and there was some historical discussions of the past caveat that was lodged on the property and the circumstances relating to its removal.  Various annexures are exhibited to his affidavit as to past letters and discussions between the wife’s solicitors and a firm of solicitors of which Ms Pana Dokos is a principal solicitor.  The position of the husband is that all of those matters and correspondence should have been brought to my attention, but of course they were equally as well known to his brother and/or himself prior to that hearing as they would have been known to the wife and her counsel.  Nevertheless those matters are not predominant to the issue before me which relates to enforcement of orders and the valuation process.

11. It remains common ground that the actual title certificate to this property, which comprises two residential allotments and which has now two separated residences thereon with two tenants enjoying contractual rights therein, was and remains registered in the name of the husband and his brother as tenants-in-common.  The validity of and circumstances surrounding the delayed contract of purchase entered into in 1997 and all matters that may flow therefrom are and will be before the court on the further hearing date.  The husband asserts that his brother is not now prepared to make the property available for inspection and valuation.  Those matters as to ownership were known to the court on 7 August 2009 when orders were made and when I then listened carefully to submissions made by counsel then appearing for the husband.  I had previously said in paragraph 26 of those earlier extempore reasons for judgment that:

    “On the material before me I have absolutely no hesitation in requiring a valuation of this property (2-4 K Road, K).  It remains registered in the husband's name as to 50 per cent.  That is a matter of importance”.

12. Otherwise, I emphasise for the purposes of these extempore reasons for judgment I have carefully re-read that ex tempore judgment and in particular as to the submissions of Mr Thompson and the findings that I made to support the orders of that day. 

13. The present position is that I have gone to some lengths today to explain to the husband that I am not making any determination of ownership of the property at 2-4 K Road in these reasons for judgment.  What I am doing is endeavouring to prepare, by order, this matter for trial and that means having a valuation of the property, both at the 1997 date that is relevant to the purported contract or otherwise as at 16 September 2007 and at the date of hearing.  It would appear to be somewhat in the husband’s interest to have a valuation of the property as at 1997 because of what he alleges was undertaken between he and his brother that day in respect of the property.  That earlier valuation date is, in the alternative, appropriate for the wife to know because if there was any substantial discount or other dealing with the property at less than a fair value that may give rise, as Mr Strum has submitted, to an issue of alleged wastage or inappropriate financial dealings with the property.  None of those matters are currently before me.  I have, as the husband appears in person, asked him to understand and to accept that there will be a valuation of this property.  He continues to object and says that:

    “In his heart he cannot accept any such order or direction as it is not his property”.

14. That is a summary and not verbatim of what he told me a little earlier in his submission.  The court has explained carefully to the husband that this matter will be prepared for trial and the basis of preparation as to valuation is that he remains on title a legal 50 per cent owner of the property.  All matters of and related to the contract and its intended sale to his brother on a delayed basis can be explained and developed in the final trial, in a few months’ time. 

15. The husband has additionally raised, at least implicitly, the appropriate venue for the hearing of property matters that may involve his brother’s acquisition or ownership of a property.  He has floated the suggestion it should be in the Supreme Court of Victoria.  That venue may be wholly inappropriate but I do not have to decide that issue as there is no such application before me.

16. It would be appropriate and I have directed the wife to give a letter of notice to the husband’s brother, who currently is said to reside in Greece, as to the current circumstances of this case, the wife’s claim and any orders that might be sought of and in relation to the property at 2-4 K Road.  I require such formal, proper and complete notice to be given by the wife’s solicitors to Mr N Prentice on or before 18 September 2009.

17. With, therefore, that background of the affidavit of the wife's solicitor before me and the responding affidavit of the husband and the earlier orders of the court and reasons for judgment, I now evaluate what is a proper form of orders for this day. I first conclude it is proper, and the husband is under no disadvantage whatsoever, to grant leave for the oral application, as outlined by Mr Strum, to be made.  I propose to make that order as it is proper and appropriate.  The husband is and remains a co‑owner as to 50 per cent of this property on title and it is necessary for him to act in a progressive and helpful manner in achieving a valuation, even more so, because part of his case is to ascertain the value of the property in July of 1997 to support the sale price to his brother.  That valuation should be both internal and external and it is commonplace for tenants, pursuant to tenancy agreements, to have to comply with the reasonable invitation of a valuer attending the property for the purposes of a professional valuation.  These tenants should properly have that explained to them and their active co-operation sought.  That was clear from my earlier order and is part of the valuation process and it must be completed.

18. The wife seeks an order pursuant to s 106A of the Family Law Act 1975.  That section authorises a court to facilitate the execution of instruments by order of the court and it provides that:

    “Where a person has refused or neglected to comply with the direction or for any other reason the court considers it necessary to exercise the powers of the court, an officer-“

    in this case, the Registrar of the Family Court Melbourne registry -

    “may be appointed to execute the deed or any instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to such deed or instrument”.

19. In effect, what is asked here is that the Registrar sign the letter of appointment and instructions to the single expert firm, V Real Estate Valuers, to ensure compliance with my earlier order of 7 August 2009. The necessity for this order is the husband’s refusal to comply with that order and he has again emphasised his position today, that he would much prefer not to comply and/or take any action, as a joint owner of the property, to have the valuation of 2-4 K Road, K, undertaken by that professional firm of valuers. In the circumstances there is every good reason why the court should exercise that power under s 106A of the Family Law Act and I intend to do so. I will therefore pronounce an order for the Registrar to sign that letter of authority and in every way to facilitate a full and proper valuation, both internal and external, of the property (of the property at 2-4 K Road, K).

20. I did entertain from the husband a request for that order to be stayed so that he might further discuss with his brother the level of the brother’s cooperation.  It would be both prudent and proper for this property to be valued and for the brother to cooperate but I make no order or direction to the brother.  The orders of the court are solely directed to the husband as a co‑owner of the property.  I will, however, stay the operation of this order until 12 noon on Monday, 14 September 2009 but that is only as a last courtesy to the husband so that he can get proper instructions and proceed with the valuation of the property as at each of the three dates requested, including July 1997.

21. The wife’s application, in the alternative, seeks orders pursuant to Family Law Rule 15.46(f) and (g).  Those Rules provide orders that the court may make of or involving the instruction of or conduct in a case for a single expert witness and include:

    (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.

22. In the context of this case and on the submissions of the husband and his updated affidavit I intend to make clear that the wife will and should have, if the husband elects not to be involved, the authority to settle necessary instructions.  Likewise, I intend it to be perfectly clear to the valuer that they are to use their best endeavours and to have authority to inspect and value, internally and externally, the property at 2-4 K Road, K.  On that basis and in the more extensive form of orders sought in paragraph 2 of the wife’s interim orders I conclude, and evaluate upon all of the evidence, that it is proper to make extended orders as to procedures and authority pursuant to Rule 15.46 and I will do so in my orders.  It should be unnecessary but I take the opportunity to emphasise that, additionally, that valuer is to value and place in evidence before the court the appropriate current market value of the properties at 1 K Road, K, B Stret, P and M Street, M, and that is pursuant to earlier orders and agreement in this matter.

1. This matter remains in my list for a defended hearing on all issues commencing 30 November.  The parties have previously estimated four days but now say up to five days and that remains all that is available and the case must conclude by 3 December.

2. Given all of the issues and the lack of acceptance of or cooperation with court orders, I intend to list this matter to a further mention date to ensure compliance with all valuation issues. I make it perfectly clear to the parties that the court has substantial cost powers and discretions and they will be used in appropriate circumstances where people have not complied with clear and express orders of the court. I say that for future reference so that it is absolutely clearly understood and I direct the husband, as he now acts for himself, to a careful reading of section 117 of the Family Law Act. 

3. I will leave the matter listed for mention on 28 October but I will reserve liberty to both parties to list the matter for mention on proper material filed and on no less than 72 hours to the other parties and I will incorporate that within the orders that I will shortly pronounce.

REASONS FOR COSTS

1. As part of the formal interim application of the wife filed 26 August 2009 is a request that the husband pay her costs of and incidental to these proceedings on an indemnity basis. The husband in his response filed 1 September 2009 seeks an order that the wife pay his costs of this application, that is, his response application. Each of the parties has prepared an affidavit, either sworn by their solicitor or, in the case of the husband, personally. These matters relate only to this interim application which arises out of orders which I made on 7 August 2009. Section 117 of the Act provides that each party to proceedings shall bear his or her own costs. Subsection (2) provides that, in proceedings under this Act, and where the court is of the opinion that there are circumstances that justify it in so doing, then the court may make such order as to costs as it considers just. The matters that are relevant to costs are identified in subsection 2A and include:

   (a)the financial circumstances of each of the parties to the proceedings;

   (c) the conduct of parties to the proceedings in relation to the proceedings;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any part to the proceedings have been wholly unsuccessful;

   (f)       such other matters as the court considers relevant.

2. In the proceedings before me on this enforcement issue and arising out of orders of 7 August 2009 the husband has been wholly unsuccessful.  These orders are necessitated by his failure to comply with previous orders.  As to the financial circumstances of the parties I regard it as appropriate that those matters be deferred pending final hearing.  I generally know of the substantial real property holdings in affluent suburbs of Melbourne owned by or on behalf of the husband and wife.  I well understand that there are significant liabilities attaching to those properties but, from my current reading of the file, it is a reasonable expectation that there will be some assets before the court for final property division pursuant to section 79.  In any event I am requested by counsel for the wife to stay the payment of any sum which may be ordered by way of costs against the husband until the property division, which is listed for hearing on 30 November 2009. 

3. The first issue therefore I must determine is what is a just order and having regard to the very detailed knowledge that I have of this matter, incorporating numerous previous extempore judgments and, in particular, the orders of 7 August 2009 and the matters outlined in the affidavits before me this day and in the reasons for judgment I have just delivered, it is just that there is an order for costs made in favour of the wife and against the husband.  The husband likewise has an application for costs and I find no reason that could be advanced to make any order of costs as against the wife on the basis of his material before the court today.  I formally find that that would be an unjust circumstance and I will not make any order for costs as against the wife.  As to the quantum of costs I observe that they were sought on an indemnity basis. 

4. What I propose to do is to fix costs.  It is not in the interests of the parties to prepare a taxation of bill of costs and undergo a separate hearing.  That would be time-consuming and costly to both of them.  The wife has ongoing considerable legal costs.  The husband has emphasised to the court that he loses his opportunity to earn income by being at court, and I do want to free him up to work as he may choose whenever and whenever.  Mr Strum has outlined that his instructing solicitor’s costs of and incidental to the preparation of her detailed affidavit, the interim application and her time at court this day is $2,500.  Additionally, it is said that the brief to counsel is $1850 and that was marked and is the sum that the wife will be charged.

5. This matter was listed at 9.30 a.m. and it is now 11.45 a.m.  The matter has proceeded for two hours and 15 minutes.  Whilst I propose to fix costs I need be mindful of the Family Law Scale of Costs.  I have not sought at this stage any presentation of any existing costs agreement as between the wife and solicitor, if there be such a document.  I intend to simply deal with these costs on the basis of what is just and to fix a sum that is appropriate.  This is a matter of some complexity and it is a matter that has been handled in a most professional manner in the preparation of the application and supporting affidavit.  What I propose to do is to somewhat discount the costs and allow to the firm Taussig Cherrie $2,200 and to allow to counsel $1,500, which is $3,700.  I will stay the payment of those costs until 3 December 2009, which is the scheduled completion date of the defended hearing matter.  As to the husband’s request for costs that is denied and dismissed.

6. I will ensure that both a transcript of the costs reason and the other reasons are available.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: