O’Malley and O’Malley (No 2)

This matter concerned an application before Brown J in the Family Court of Australia, brought by a husband and wife. The dispute revolved around the division of property, specifically concerning the sale of several properties, the valuation of the husband's business, and the determination of capital gains tax liabilities arising from property sales. The court was tasked with making orders to facilitate the orderly sale of the properties and the valuation of the business, as well as addressing the consequential financial matters.

The primary legal issues before the court were how to effect the sale of the jointly owned properties, including the appointment of an agent, the method of sale, and the setting of reserve prices. The court also had to determine the process for appointing a single expert witness to value the husband's business and to prepare retrospective valuations of two specific properties. Furthermore, the court needed to establish how the proceeds of sale would be applied, particularly in relation to the payment of sale costs, liabilities to the National Australia Bank, and the calculation and retention of funds for capital gains tax.

Brown J reasoned that the sale of the properties should proceed by public auction within 90 days, with the appointment of a licensed real estate agent who is also a sworn valuer, or failing agreement, by the President of the Real Estate Institute of Victoria. The court also ordered that the reserve price be agreed upon by the parties or, in default, as advised by the agent, and that sales be on an unconditional contract. To address the valuation of the husband's business, the court outlined a detailed process for the parties to agree on a single expert witness, including provisions for disagreement and liberty to apply to the court. Similar provisions were made for the appointment of a valuer for specific properties, with the agent to be appointed if the parties could not agree. The court also made orders for the parties to prepare lists of documents and set a trial date for the final determination of the financial applications.