Merrick and Yardley

[2012] FamCA 1096

FAMILY COURT OF AUSTRALIA

MERRICK & YARDLEY [2012] FamCA 1096

FAMILY LAW – CHILDREN – Single expert witness dispute - Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Merrick

RESPONDENT: Mr Yardley

FILE NUMBER: MLC 4486 of 2011

DATE DELIVERED: 19 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Croker

SOLICITOR FOR THE APPLICANT: Hogg and Reid

THE RESPONDENT: In person

Orders

1. That the parties jointly instruct Property Valuer M to prepare valuations for the purposes of the final hearing at the joint expense of the parties on the following properties;

   (a)    Property situated and known as Property L; and

   (b)    Property situated and known as Property S.

2. That this Order can be produced to the valuer as required evidence to enable the valuations to be prepared.

3. That each party pay for one half of the costs of such valuations within even days of receipt of such invoice from the valuer.

4. That the husband pay the wife’s costs fixed in this day in the sum of $900 and the payment of such costs be stayed until the determination of the property proceedings as between the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrick & Yardley 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 MELBOURNE

FILE NUMBER: MLC 4486 of 2011

Ms Merrick

Applicant

And

Mr Yardley

Respondent

REASONS FOR JUDGMENT

1. This is an application in the judicial duty list for a variety of things, but the essence of the dispute relates to the valuation of two real properties, Property L and Property S.  The husband’s position initially was that he wanted to rely upon valuations that he had organised previously.  The wife’s position was that she wanted a single expert witness. 

2. Chapter 15 of the Rules of the Court requires that the approach to dividing property relies upon the use a single expert witness for the purposes of endeavouring to ensure that there is an objective valuation.  The parties obviously have an opportunity to challenge that single expert if they disagree with the valuation.  It’s the wife’s position today that she wants that single expert witness and in handing me a minute Ms Crocker, for the wife, indicated that she then intended to apply for costs associated with having to make the application.

3. The husband’s position was that he would agree to the orders on condition that he did not have to pay costs.  I am therefore treating this matter as a not agreed order. 

4. Chapter 15 of the Rules is clear where there is a dispute between the parties.  Neither party can tell me what the pool of assets is at this stage nor how their respective positions would pan out because they do not know what the valuations are.  On that basis the rules should apply and specifically rule 15.45 which requires that a single expert be appointed.  Accordingly, I propose to make orders in terms of paragraphs 1, 2 and 3 of the draft minute which has been handed to me today.

RECORDED:  NOT TRANSCRIBED

1. This is an application by the applicant wife for costs. They were proposed at $1100, but that would be on an indemnity basis and I am reluctant to make an order that, in a case like this, goes that far. Section 117 of the Family Law Act requires that each party pay their own costs in proceedings in this court unless there are circumstances that justify departure from that principle. If the court is contemplating departing from that principle it must take into account the matters set out in section 117(2A). In this case there was clearly a trail of correspondence indicating that there was a dispute. Perhaps if the husband had had some legal advice about what the rules of this court, which have stood the test of time since 2004, say, we would not be here. The position he adopted on 16 October after being served with the documents and that set out in his letter of 7 September clearly indicates that he was not prepared to take the step that the wife wanted to take because he thought that she had put a proposal previously and he was quite content to use those figures.

2. Clearly the wife was not, bearing in mind that the figures were apparently dated some time in 2010. The husband’s position was that he wanted to have his own valuation. Chapter 15 of the Rules does not permit that to happen except on specific application. It seems to me this is a case where there is a justifiable reason to depart from the principle in s 117. Whilst the husband says that he does not have the resources, it is clear that there are assets of some substance between the parties and neither party is eligible for Legal Aid. The husband has been unsuccessful in his argument. It seems to me this is a case where there ought to be an order for costs. I propose to fix the costs at $900 using the scale and I propose to stay the payment of those until the settlement of the property proceedings.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 October 2012.

Associate: 

Date:  12 December 2012