MARLOWE-DAWSON & DAWSON

[2014] FamCA 328

FAMILY COURT OF AUSTRALIA

MARLOWE-DAWSON & DAWSON [2014] FamCA 328

FAMILY LAW – PROPERTY – Expert evidence – Where the parties appointed a single joint expert to undertake a valuation of their real property located in the United Kingdom – Where the Wife seeks there be additional instructions provided to the single expert concerning the valuation of the property on the premise that certain substantial works are performed on that property – Where the Wife seeks leave to file further affidavit material evidencing the costs associated with undertaking works to the property

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Marlowe-Dawson

RESPONDENT: Mr Dawson

FILE NUMBER: SYC 53 of 2011

DATE DELIVERED: 16 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 16 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wigan

SOLICITOR FOR THE RESPONDENT: Ms Morozov (appearing by telephone)

Orders

It is ordered that

1. The Wife have leave to file and serve further affidavit material evidencing the costs associated with undertaking works to the property located at S Street, Town P in the United Kingdom that she alleges are necessary to place the said property in good repair and condition by 2.00 pm Monday, 19 May 2014.

2. The Wife have leave to file and serve any affidavit upon which she intends to rely in response to the Husband’s affidavits filed 15 April 2014 and 8 May 2014 by 2.00 pm Monday, 19 May 2014.

3. Pursuant to rule 15.46 of the Family Law Rules 2004 the Wife is authorised to give instructions to the single expert, Mr E, in accordance with the instructions annexed to her Application in a Case filed 15 May 2014 marked annexure “A” on the basis that the Wife be responsible for the costs of the single expert in carrying out those instructions.

4. Each party’s costs of and incidental to the Wife’s Application in a Case filed 15 May 2014 be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marlowe-Dawson & Dawson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 53 of 2011

Ms Marlowe-Dawson

Applicant

And

Mr Dawson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These property proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) were set down for final hearing before me for three days commencing 18 September 2012. Further written submissions were filed in late November 2012 and following that final hearing I reserved judgment. By reason of my delay in delivering that judgment, it has become necessary to allow the parties to re-open some of the evidence.

2. On 11 March 2014 the Husband filed an Application in a Case which application was subsequently amended and re-filed on 16 April 2014. The Husband sought, in summary, a re-opening of the proceedings to adduce further evidence pertaining to his financial circumstances in light of his retirement from Firm K.

3. On 27 March 2014 the Wife filed her response to that application, which response was subsequently amended and re-filed on 29 April 2014. The Wife sought, inter alia, that the Husband’s application for re-opening be dismissed and that the Husband pay certain sums to the trust account of Hopgood Ganim for payment of legal fees.

4. The application was first returnable before me on 31 March 2014. On that occasion I explained to the Wife who was, at that stage, representing herself, that because of my inordinate delay in delivering the judgment in this matter, irrespective of an application by the Husband to re-open the evidence, the Court was bound to allow the parties an opportunity to update their financial circumstances.

5. On that basis I acceded to the Husband’s application to re-open the evidence, so far as his partnership with Firm K was concerned. I also invited the opportunity for the parties to update relevant real property valuations for the real properties, the subject of the proceedings. One of those properties is a property in the United Kingdom known as “the United Kingdom property”. The valuation for that property had been agreed at trial with the assistance of expert evidence. It was the case at trial that there was agreement between the parties that the Court should approach the assessment of contributions on the basis that contributions were to be assessed at the point of trial as being equal. 

6. The Application in a Case now filed by the Wife on 15 May 2014 in relation to the United Kingdom property valuation is that, in addition to the usual joint instructions to the expert valuer, there be instructions provided to the expert concerning the valuation of the property on the scenario that certain substantial works are performed on that property. In support of her application the Wife’s solicitor, Ms Wigan, filed an affidavit which contained an assertion to the effect, on instructions, that if a sum in the order of ₤60,000 was spent on the property it might be worth as much as ₤300,000 more. I observe simply that that was an assertion in the material and I make no finding, one way or the other, on that evidence.

7. On the face of things, as far as the application presented to the Court was concerned, it seemed that there was, in reality, no relevant issue within the meaning of Part 15.5 of the Family Law Rules 2004 (“the Rules”), about which expert evidence ought be sought. That is, in circumstances where as at the trial, the Wife was proposing orders that would see her retaining the United Kingdom property, whilst the Husband was proposing orders that the United Kingdom property be sold, it was not readily apparent, against the context of their agreement about contributions I have referred to, as to how this further expert evidence sought by the Wife would be of any particular relevance.

8. That is, the property will be valued at its current value and whether sold, as the Husband seeks, or retained by the Wife, the value for the property for that purpose will be determined by the expert report that has been sought. However, upon exploration with the Wife’s solicitors, who appear for her on this application, it is revealed that the Wife will depart from the agreement, as between the parties at trial in late 2012, that their contributions are to be assessed as equal. I am informed from the bar table that it will be the Wife’s case that she will seek to agitate an issue about contributions predicated upon the proposition that the Husband ought to have maintained the subject property over the period since the trial in late 2012. 

9. On that basis, it would seem to me that an issue in dispute arises within the meaning of Part 15.5 of the Rules. The difficulty or potential consequence of this, in circumstances where the further trial is to be heard on Thursday and Friday of next week, is that aside from seeking further input from the United Kingdom valuation expert, the Wife also proposes to file material from relevant contractors with assessments or estimates of the costs of the work she says needs to be performed to bring the property into a good state of repair.

10. That itself would seem to be an issue on the basis that I am informed by the solicitor for the Husband that the parties are not ad idem about precisely what work would be needed to be done to the property to so bring it into a state of good repair. The Wife’s solicitor confirms to me that if time was extended until 2.00 pm on Monday 19 May 2014 for the filing of further affidavit material in her case, that time limit can be achieved. The Husband’s solicitor raises fairly the prospect that if the Husband is presented with affidavit material as of Monday next week that he will need to consider for the further resumption of the trial on Thursday next week, he may be prejudiced.

11. The Husband’s solicitor has put on the record the potential costs that would be thrown away if the Husband had to seek and were granted an adjournment next week by reason of the late material. I need not determine that aspect of the case now. I simply record that the Husband has put the Wife on notice as to the potential problems that arise by reason of the lateness of this issue being raised at this time.

12. I confirmed with the Wife’s solicitors that no meaningful opposition could be mounted by the Wife to her being responsible for the costs of this part of the valuation exercise she seeks on the basis that it is this aspect which is part of her case in agitating an issue of contribution against the Husband for the purpose of the resumed trial.

13. I otherwise propose to reserve the costs of this application as it seems to me it may be necessary to agitate the issue of costs in the light of the further evidence that has been obtained and in the context of an adjournment application if it is forthcoming from the Husband.

14. I therefore propose to order that the Wife have leave to file further affidavit material evidencing the costs associated with undertaking works to the property located at S Street, Town P in the United Kingdom that she alleges are necessary to place the said property in good repair and condition by 2.00 pm on Monday 19 May 2014.

15. I will further order that the Wife file and serve any affidavit upon which she intends to rely in response to the Husband’s material including in relation to the issue concerning the Husband’s retirement from the Firm K partnership by 2.00 pm on Monday 19 May 2014.

16. Pursuant to rule 15.46(g) of the Rules I authorise the Wife to give instructions to the single expert, Mr E, in accordance with the instructions annexed to her Application in a Case filed 15 May 2014 marked annexure “A” on the basis that the Wife be responsible for the costs of the single expert in carrying out those instructions.

17. I order that each party’s costs of and incidental to the Wife’s Application in a Case filed 15 May 2014 be reserved.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 May 2014.

Associate:

Date: 21 May 2014