Malbury and Walker

[2009] FamCA 1067

FAMILY COURT OF AUSTRALIA

MALBURY & WALKER [2009] FamCA 1067

FAMILY LAW – PROPERTY – Value  of property – Expert  evidence – Question  of payment

Family Law Act 1975 (Cth)

APPLICANT: Mr Malbury

RESPONDENT: Ms Walker

FILE NUMBER: MLC 8933 of 2009

DATE DELIVERED: 29 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 29 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Davis

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Ms O Nikou SC

SOLICITOR FOR THE RESPONDENT: Rudstein Kron Lawyers

Orders

1. Order by consent in accordance with all but paragraphs 5, 5(a), 14 and 15 of the minutes, and otherwise order not by consent in accordance with those paragraphs.  They are to be engrossed on the provision of an electronic copy of the appropriate form by the solicitors for the husband - seven days.  They include an order dismissing interim applications and referring final applications to Registrar Sikiotis.

IT IS ORDERED BY CONSENT

1. That the real property situate and known as E property be sold by 5 December 2009, with a reserve price and on terms and conditions agreed between the parties, and in default of agreement, fixed by a valuer appointed by the President of the Real Estate Institute of Victoria.

2. That the proceeds of sale be applied:

   (a) to discharge all secured borrowings from National Australia Bank, totalling approximately $6,300,000.00 as alleged by the Husband but not admitted by the Wife;

   (b) to pay agreed costs and commissions of the sale;

   (c) to reimburse the Husband in respect to any agreed works and at an agreed price to be undertaken on the real property prior to the sale;

   (d) the sum of $500,000.00 to both the Husband and the Wife ($1,000,000.00), such payment to be characterised by the Trial Judge, payment to be made to the current solicitors on the record;

   (e)the balance to be held in an interest-bearing account in the joint names of the parties, pending written agreement or further Order of the Court, such account to be set up by the solicitors for the parties.

3. That the Husband pay to the Wife the sums of:

   (a)$10,000.00 within 21 days; and

   (b)$15,000.00 within a further 21 days thereafter, such sum to be characterised by the Trial Judge.

4. That the Wife file or provide a Withdrawal of Caveat at settlement of the sale of the real property.

IT IS ORDERED NOT BY CONSENT

1. That the parties forthwith engage a single expert to value C Pty Ltd and its associated entities and any other trading companies in which the Husband has an interest, including to value and provide evidence as to whether any of the entities in which the Husband has an interest is trading.

   (a) The Husband and the Wife each pay half of the costs of the single expert, and the issue of the Wife's contribution to the costs be a matter for the Trial Judge.

IT IS FURTHER ORDERED BY CONSENT

1. That the Wife have leave to file further subpoenas.

2. That upon the release of the deposit in respect of the sale of the real property, each party be entitled to 50% thereof.

3. That until further Order, the Wife have the sole occupancy of the real property, and she do all acts and things to cooperate with the sale, including opening the property for inspection as and when requested by the selling agent, and permitting tradesmen and other persons access to the property to perform any necessary agreed works on the property prior to sale.

4. That pending the sale, the Husband indemnify the Wife in respect of all mortgage instalments in respect of the real property, and pay any arrears in respect thereto from the $500,000.00 the Husband is to receive pursuant to Order 2 hereof.

5. Pending the sale of the real property, the Husband pay reasonable gas, electricity, Internet and Foxtel expenses.

6. That the Husband provide authority in writing for the single expert to release information from third parties as requested by the single expert.

7. That the Husband pay the mortgage on the M properties, as and when it falls due.

8. That the Husband continue paying reasonable:

   (a)gas, electricity, Foxtel, and Internet in respect of the E property;

   (b)the lease, registration and insurance costs and service expenses for the Wife's motor vehicle, registered no. ….

AND IT IS FURTHER ORDERED NOT BY CONSENT

1. That the Applications for Interim Orders, returnable this day, be otherwise dismissed.

2. That all Applications for Final Orders be referred to Registrar Sikiotis for further listing as appropriate.

AND THE COURT NOTES

The parties agree to use R Agency as the selling agent of the real property.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8933 of 2009

MR MALBURY

Applicant

And

MS WALKER

Respondent

REASONS FOR JUDGMENT  

1. The primary proceedings seek final orders for alteration of property interests as a result of the breakdown of the parties’ marriage.  Before me today is an interim application seeking alternately costs on account of that litigation or perhaps an interim alteration of property interests.  The parties have resolved the greater part of their dispute and have left, originally three, now two, issues for me to determine.

2. There is a very large dispute between the parties with regard to the relevant facts of the substantive applications.  On the wife’s part it is asserted that the husband is guilty of failing to make a full and frank disclosure and that is asserted to be to a very high degree indeed.  The husband vehemently disputes that proposition.  In preparation for trial of the final applications the parties are engaging in the appointment of a single expert to value relevant realty and corporate assets and to this stage they have not actually agreed on the identity of such single expert.

3. There is a principal residence now occupied by the wife which appears to have a value of some millions of dollars and in respect of which it is asserted that there are considerable debts secured, but the amount of those debts is also a matter of great dispute between the parties.  The property is to be sold on certain conditions provided in the consent minutes and the proceeds are to be applied first to the discharge of secured borrowings, together with all costs and expenses of and related to the sale.  In addition, certain reimbursement to the husband has been agreed upon.

4. The parties are each to receive the sum of $500,000, being a total of $1 million, from the proceeds which are to be characterised by the trial judge as is seen fit at the trial of the final applications.  The balance will be held in an interest-bearing account, subject to any further order or agreement of the parties as to its disbursement.

5. In addition, the husband is to pay to the wife a total of $25,000 over the next six weeks and the wife is to provide the relevant documentation to give the vendors the right to afford a purchaser clear title.  The parties agree on the appointment of a single expert and have now agreed on one matter which was in dispute, that is, whether the single expert should be engaged to also establish whether a number of corporate entities are trading or otherwise.

6. The two issues which are left for me to determine are, first, the question of the payment of the single expert, and, secondly, the disposition of the remaining parts of the interim applications.  Counsel for the husband submits that the parties should equally pay the cost of the expert with all questions of the ultimate costs being otherwise reserved to the trial judge. 

7. On behalf of the wife, senior counsel submits that given what is asserted to be a gross failure of full and frank disclosure by the he should pay the entirety of the costs of the expert and they be otherwise reserved to the trial judge.  It is further submitted that were I to accede to the husband’s application in this regard I would run the risk of depriving the wife of the potential fruits of a successful judgment.  That is on the basis of the possibility that the wife is unable to prove the extent of assets as she asserts them to be but persuades the trial judge that or she should take what is referred to in the authorities as being a robust approach, thereby creating a situation in which the wife would be entitled on the assertion of senior counsel for the wife to the entirety of the then identifiable assets.

8. I have read the affidavit material in which the allegations as to non-disclosure are set out in some detail.  In the absence of the testing of evidence on fundamentally different positions with regard to the allegation of non-disclosure, I am obviously unable to make a determination as to those facts.  I am not persuaded that the wife’s financial situation is such that she is unable to contribute to these costs, and I am further not persuaded that there is a risk of depriving her of the fruits of a potentially successful judgment, particularly given that she is to receive the sum of $500,000 from the proceeds of the sale of the former matrimonial home and that other proceeds are then to be invested.

9. There is further funding potentially available in the event that the wife is able to establish her allegations as to non-disclosure.  In those circumstances, in my view, it is appropriate that both parties equally pay the cost of the single expert and that the ultimate disposition of those costs be reserved to the trial judge.  Senior counsel for the wife also seeks that the wife’s application for spousal maintenance, which is included in the interim application presently before me, be adjourned for hearing some time in February or March 2010.

10. The question of whether the wife will find it necessary to proceed with the spousal maintenance application will depend at least to a large extent on the report of the single expert and questions of net assets and cash flow arising from that report.  It is by no means clear that the wife will need to proceed with the spousal maintenance application, and in those circumstances it is not appropriate for it to remain on foot just in case.  Given the extensive and detailed settlement into which the parties have entered today, I will dismiss the interim applications and it is always open to the wife to renew an application for spousal maintenance at such time as she is so advised.  I will order accordingly.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  11 November 2009