Minke & Minke (No 2)

Case [2024] FedCFamC1F 157

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Minke & Minke (No 2) [2024] FedCFamC1F 157

File number SYC 9122 of 2022
Judgment of WILSON J
Date of judgment 14 March 2024
Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – late applications for expert evidence – one application refused, the other allowed.  
Legislation Family Law Act 1975 s 79
Cases cited

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Danell v Saller (2015) 54 Fam LR 416

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Honeysett v R (2014) 253 CLR 122

Keevers & Keevers [2021] FedCFamC1F 338

Lang v R (2023) 95 ALJR 758

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Minke & Minke [2024] FedCFamC1F 130

Neales & Neales [2022] FedCFamC1A 41

Stanford v Stanford (2012) 247 CLR 108

Verdon v Verdon (2020) 62 Fam LR 573

Division Division 1 First Instance
Number of paragraphs 37
Date of last submission 13 March 2024
Date of hearing 13 March 2024
Place Melbourne
Counsel for the applicant Mr G Richardson SC with Mr R May of counsel
Solicitors for the applicant Barkus Doolan Winning
Counsel for the respondent Mr M Kearney SC with Mr C Brickwood of counsel
Solicitors for the respondent Walter & Elliot Family Lawyers

ORDERS

SYC 9122 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MS MINKE

Applicant
AND

MR MINKE

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

14 MARCH 2024

THE COURT ORDERS THAT –

1.The husband's application for leave to rely on the affidavit of Mr C made 11 March 2024 is dismissed.

2.The husband’s application for leave to rely on the affidavit of Ms D made 11 March 2024 is granted. 

3.The trial will commence as ordered on 18 March 2024.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

INTRODUCTION

  1. The trial of this proceeding has been fixed to commence on 18 March 2024, next Monday, that is to say less than two clear business days from this day.

  2. On 5 March 2024 I handed down ex tempore reasons for judgment that addressed issues relating to evidence proposed to…

Continue reading Minke & Minke (No 2)

Sign in free to access the full text

Details
AGLC
Minke & Minke (No 2) [2024] FedCFamC1F 157
Case
[2024] FedCFamC1F 157
Decision Date

CaseChat Overview and Summary

In the case of Minke & Minke (No 2), the parties were involved in complex financial proceedings, with the court tasked with determining late applications for expert evidence. The husband sought to rely on the affidavit of Mr C, while the wife sought to rely on the affidavit of Ms D, both filed on 11 March 2024. The court needed to decide whether these late applications should be allowed and if so, under what circumstances.

The legal issues centred on the timeliness of the applications and the admissibility of the evidence provided by Mr C and Ms D. The husband argued that Ms F's report, which became available on 25 January 2024, triggered the procedure for questioning the single expert, and thus his reliance on Mr C's affidavit was not unduly delayed. On the other hand, the wife submitted that Ms F's report was provided in response to a joint letter of instruction dated 26 October 2023, and the parties had ample time to prepare their evidence. The court examined the procedural rules governing expert evidence and the circumstances under which late applications may be allowed.

The court found that while Ms F's report was indeed prepared in a timely manner, the husband's application to rely on Mr C's affidavit was not. The court held that the husband had not demonstrated exceptional circumstances justifying the late filing of Mr C's affidavit, and thus, the application was dismissed. In contrast, the court allowed the wife's application to rely on Ms D's affidavit, finding that it was prepared without undue delay and was necessary for a fair determination of the case. The trial was set to commence as ordered on 18 March 2024.

The court ordered that the husband's application for leave to rely on the affidavit of Mr C made 11 March 2024 be dismissed, while the husband's application for leave to rely on the affidavit of Ms D made 11 March 2024 be granted. The trial was scheduled to commence on 18 March 2024.

Orders

Orders of the court

THE COURT ORDERS THAT –

1. The husband's application for leave to rely on the affidavit of Mr C made 11 March 2024 is dismissed.

2. The husband’s application for leave to rely on the affidavit of Ms D made 11 March 2024 is granted.

3. The trial will commence as ordered on 18 March 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The evidence of Ms F should await a reasonable time before the trial is resumed at which time Ms F, Ms D and Mr E will give their evidence.THE SINGLE EXPERT’S EVIDENCE Ms F was appointed as the single expert in this case. She was instructed to prepare a valuation report in respect of the financial interests of the parties in the Minke Group as at 30 June 2011 and as at 30 June 2023. She deposed –(a)she received a joint letter of instructions from the parties’ solicitors on 26 October 2023;(b)she prepared her valuation on 25 January 2024;(c)on 9 February 2024 the wife’s solicitors provided Ms F with questions which Ms F answered on 1 March 2024; and(d)on 13 January 2024 the husband’s solicitors provided Ms F with questions that Ms F answered on 1 March 2024. Mr Kearney SC submitted that Ms F’s report first became available on 25 January 2024 after which the procedure provided for in the rules for the questioning of single experts began to run, the first being 9 February and the second being 13 February in both instances disclosing rapid attention to the single expert’s tasks with her answering various questions by 1 March 2024, 13 days ago. Mr Kearney SC submitted that the affidavit and report of Ms D both dated 11 March 2024 were prepared without delay and as fast as could be done in the circumstances. The joint letter of instructions to Ms F was dated 26 October 2023. In that joint letter of instructions the solicitors for the parties recorded –(a)on 10 July 2023, Ms F provided indicative valuations of the Minke Group as at 30 June 2011 and as at 30 April 2023;(b)consent orders made by me on 30 August 2023 required the parties to prepare full valuations of the Minke Group as at 30 June 2011 and as at 30 June 2023;(c)documents were provided to Ms F in respect of Minke Family Trust, L Pty Ltd, M Pty Ltd, N Trust, O Pty Ltd, H Investment Trust, M Super Fund, Q Property Trust, and Minke Charity Trust; and(d)their request for Ms F to provide her report by 4pm on 22 December 2023, making herself available for cross-examination on 20 or 21 March 2024. As has already been observed, Ms F provided her report on 25 January 2024, a little over a month after the date requested which was 22 December 2023. In part three of her report, Ms F expressed her valuation of the net assets of the parties as at 30 June 2011 and 30 June 2023. It was as follows –(a)30 June 2011 - $18,779,244; and (b)30 June 2023 - $80,023,971. Ms F explained in appendix four the various methods that can be applied when valuing an asset or entity. Those included discounted cash flow, capitalisation of future maintainable earnings, capitalisation of dividends, net tangible asset value, liquidation basis and comparable transactions. Ms F reported that in this case some of those methods are inappropriate. Ms F applied what she considered to be the correct valuation method against the various assets or entities making up the Minke Group. For Minke Family Trust she adopted the net tangible asset method. For M Pty Ltd Ms F adopted the net tangible asset basis. For L Pty Ltd Ms F explained that the company does not carry on any business activity and she adopted the net tangible asset valuation method. For the N Trust Ms F adopted the net tangible asset method. For the H Investment Trust as at 30 June 2023 Ms F adopted the net tangible asset valuation method. For the H Investment Trust as at 30 June 2011 she incorporated an implied EBITDA multiple embedded in future maintainable earnings. So far as K Pty Ltd was concerned, Ms F also incorporated an implied EBITDA multiple in her application of the capitalization of future maintainable earnings valuation method. As to M Super Fund, Ms F adopted the net tangible asset method of valuation. Ms F adopted the net tangible asset method when valuing Minke Charity Trust. Ms F reported that Minke Investments was dissolved on 20 June 2011 on which date its net assets amounted to $1,514 and the surplus for the year of $10,821,519 was allocated at to $10,814,604 towards distributions effected by the liquidator. THE PROPOSED WITNESS MS D

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.