McKinnon and McKinnon

[2009] FamCA 921

FAMILY COURT OF AUSTRALIA

MCKINNON & MCKINNON [2009] FamCA 921

FAMILY LAW – PROCEDURAL – Interim orders

APPLICANT: Ms McKinnon

RESPONDENT: Mr McKinnon

FILE NUMBER: ADC 2488 of 2007

DATE DELIVERED: 25 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT: Mr Whittle

SOLICITOR FOR THE RESPONDENT: Robinson Mason

Orders

1. That the wife have leave pursuant to Rule 15.52 of the Family Law Rules 2004 to tender the report of Mr C dated 18 May 2009 which is annexed to the wife’s affidavit filed on 20 May 2009 and to adduce evidence from Mr C in relation to the six issues identified in the letter of Mr C dated 20 August 2009 annexed to the affidavit filed by the wife’s solicitor on 21 August 2009.

2. That the husband have leave pursuant to Rule 15.52 of the Family Law Rules 2004 to tender the report of Mr V dated 6 July 2009 and which is annexed to the husband’s affidavit filed on 20 August 2009 and to adduce evidence from Mr V in relation to the six issues referred to in the previous order.

3. That on or before 4:00pm on 12 October 2009 the wife file and serve her affidavit of evidence in chief.

4. That on or before 4:00pm on 12 October 2009 the husband file and serve his affidavit of evidence in chief and the affidavits of evidence in chief of Mr D McKinnon and Mr H.

5. That by 4:00pm on 12 October 2009 each party file and serve an updated statement of financial circumstances.

6. That further consideration of this case be adjourned to 9:30am on 23 October 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2488 of 2007

MS MCKINNON

Applicant

And

MR MCKINNON

Respondent

EX TEMPORE REASONS

1. This matter came before me first on 15 June 2009 when it was listed for the first day before a judge on the issue of property settlement.  There is no consent to the matter being heard under division 12A.  The principal asset, the subject of these proceedings, is the husband’s interest in the M Group of Companies.  The wife instructed Mr C to value that interest and he provided a report dated 18 May 2009.  On 20 May 009 the wife made an application for leave to tender that report and adduce evidence from Mr C.  That application was before me on 15 June but it was not proceeded with at that stage.  I was told that there were still discussions between the parties as to the valuation of the husband’s interest in the M Group and it was hoped that agreement could be reached.

2. The matter was then adjourned ultimately for the purpose of procuring an updated balance sheet and it came on again before me on 17 August 2009.  At that stage I was told that the valuation of the husband’s interest had not been agreed however significant progress had been made in that regard.  The husband had instructed a Mr V to provide a review of the report of Mr C and to provide his own report with respect to the valuation of his interest.  That report was eventually completed and was dated 6 July 2009.  As I say, significant progress was made towards reaching agreement of the value of the husband’s interest but as at 17 August there were six specific items outstanding and Mr Berman for the wife sought to pursue the wife’s application to lead evidence from Mr C. 

3. Mr Whittle, for the husband, also made an oral application to do the same with Mr V, in other words, lead evidence from him as opposed to pursuing at that stage a single expert witness.  I expressed some concerns about that.  Those concerns were assuaged somewhat by the submissions that were then made by both counsel but I adjourned the matter to today to enable the report of Mr V to be filed and also for the wife to file a document which I was told would set out the specific points of difference between the two valuers.  That has been attended to.  I now have before me the report of Mr V, it is annexed to an affidavit of the husband’s filed on 20 August 2009 and I have an affidavit of the wife’s solicitor annexing a letter from Mr C setting out the six points of difference between his valuation and that of Mr V’s and that follows on from a meeting held on 6 August between the two valuers.

4. Today both parties pursue their respective applications to lead evidence from their adversarial experts. Those applications, of course, are made pursuant to Rule 15.52 of the Family Law Rules.  Now I am not going to repeat the submissions that have been made to me and I will simply say that having read the documents and appreciated where the issues now lie and the dispute that exists, I am prepared to make the orders sought and I consider that it would be unnecessary to require the parties at this stage to look at appointing a single expert, even if that might be, of course, a way forward in resolving the dispute between Mr V and Mr C. The expense and the delay that would be caused as a result is unnecessary.

5. That of course begs the question, which is what I raised at the first hearing as to why a single expert was not considered early in the piece, but I do not need to revisit that because, as I say, I am satisfied with how the matter has ended up.  I would have been far less satisfied if what I was presented with was virtually no agreement and extensive reports of two accountants and applications to tender those reports and lead evidence from them.  That is the particular situation which the single expert rules are meant to address, but that is not this situation here which has now been made clear to me.  Although there are six matters in dispute, it is anticipated that three of those issues will not need to be the subject of evidence, but looking at it from the worst possible scenario, it is proposed that evidence be called in relation to those six outstanding matters.  Indeed, that is what each party now applies for, namely not that evidence led will be at large, but the evidence led will be directed to the specific six points of difference between the two accountants.  Thus I propose to make orders allowing that to occur.

6. The other matter that I have addressed today, and also addressed on 17 August, was the preparation for the trial of this matter.  Unfortunately, I am not in a position to provide a listing for trial this year.  There is the prospect of the matter being listed in November, depending upon whether another matter settles.  I note that the parties and their witnesses and counsel would be available if that transpired, but I will not list it there just yet.  I will keep that in mind, and obviously give the parties plenty of notice if that is what is going to happen.  Outside of that, we are looking at January, and I am told that the case, subject to the availability of Mr C which needs to be checked, can be listed in January.  I propose to pencil it in there.

7. In anticipation of the matter being dealt with in either November or January, I want to make orders today for the filing of affidavits.  In terms of witnesses, I am told the wife only seeks to call herself and Mr C.  The husband will be a witness, of course, and Mr V will be a witness.  There will be two further witnesses called by the husband, Mr D McKinnon, who is the husband’s brother, and Mr H, who is the chairman of the M Group.  I queried the need for both Mr D McKinnon and Mr H to be called as witnesses, but I am assured by Mr Whittle that their evidence will not overlap, and that, for instance, Mr H will give evidence of the contributions by the husband which Mr D McKinnon will not be able to speak to, so on that assurance, I am prepared to allow both of those persons to be called as witnesses.

I certify that the preceding 7 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 25 August 2009.

Associate