PALLAS & PALLAS

[2014] FamCA 671

FAMILY COURT OF AUSTRALIA

PALLAS & PALLAS [2014] FamCA 671

FAMILY LAW – INTERIM INJUNCTIONS – order made restraining the wife from interfering with the husband’s position in the company that controls the business for which he is currently responsible

FAMILY LAW – INTERIM PROPERTY – order made for the increase of a facility and the division of monies that become available as a result of that facility between the parties

FAMILY LAW – PROPERTY – adversarial expert evidence – where an order made that certain steps be taken under the rules before either party could proceed further with any application for leave to rely upon adversarial expert evidence

Family Law Act 1975 (Cth)
Family Law Rules 2004

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Blue Seas Investments Pty Ltd v Mitchell andMcGillvray (1999) FLC 92-856
Strahan (2011) FLC 93-466

State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146

APPLICANT: Ms Pallas

RESPONDENT: Mr Pallas

FILE NUMBER: WOC 856 of 2012

DATE DELIVERED: 20 August 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 8 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell, SC

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. Pending further order, the wife be restrained from doing any acts or things relating to LM Pty Limited (“LM”) and/or CY Pty Ltd (“CY”) as follows:

   1.1.to remove the husband as director of LM Pty Limited

   1.2.contacting any staff of LM Pty Limited without the husband’s written consent;

   1.3.Contacting any customers, contractors or professional staff of LM Pty Limited including accountants, the bank in relation to LM accounts and or independent contractors or suppliers to the business;

   1.4.Doing anything to interfere with the husband’s conduct of the business

2. The parties do all acts and things necessary, including signing all documents, to increase their secured debt with the National Australia Bank to the maximum amount available and that save for $20,000 which shall be left in the loan account to provide for the interest repayments, the parties divide the proceeds of the facility as to 62 per cent to the wife and 38 per cent to the husband.

Orders made 3 July 2014

1. Within 7 days of the date of these Orders, the Respondent husband’s solicitor provide to the single expert, Mr BG, of VF Accounting a copy of the Report of Mr AG dated 19 March 2014 as to the interests of the parties in Y Pty Ltd.

2. Within 7 days of the date of these Orders, the parties forward a joint letter of instruction to Mr X appointing them as single expert to provide a report as to his opinion on the appropriate remuneration as at 30 June 2013 for the wife in relation to her role as an employee of the business Z Pty Ltd conducted through the entity Y Pty Ltd and the appropriate remuneration as at 30 June 2013 for the Husband in relation to his role as an employee of LM Pty Ltd with each of the husband and wife to forthwith do all acts and things, provide all documents and instructions as required from time to time by Mr X.

3. No later than 1 October 2014, the parties forward a joint letter of instruction to Mr JS of OP Valuers instructing him to update his valuation as single expert of the property KK Street, JJ Town as at 30 June 2013, and to provide an opinion as to the rental value of the portion of the property occupied by the business Z Pty Ltd as at 30 June 2013 with each of the husband and wife to forthwith do all acts and things, provide all documents and instructions as required from time to time by Mr JS.

4. No later than 1 October 2014, the parties forward a joint letter of instruction to Mr JS of OP Valuers instructing him to update his valuations as single expert of the properties at:

   a.AA Street, BB Town;

   b.CC Street, DD Town;

   c.EE Street, FF Town; and

   d.GG Street, Suburb HH,

   with each of the husband and wife to forthwith do all acts and things, provide all documents and instructions as required from time to time by Mr JS.

5. Within 7 days of the date of these Orders, the parties forward a joint letter of instruction to Mr BG instructing him to provide an addendum updating his opinion as to the interests of the parties in Y Pty Ltd and LM Pty Ltd, as at 30 June 2013, such letter to enclose a copy of the 2013 Financial Reports and Tax Returns for Y Pty Ltd and LM Pty Ltd respectively, and requesting that such valuation be provided to the parties within 4 weeks of the date of the letter of instruction, and each of the husband and wife provide such information and documentation forthwith upon receiving a request from the said Mr BG.

6. That within 21 days of receipt of the updated Report of Mr BG, referred to in Direction 4 above, the parties together with their advisors, take all steps to arrange for a conferral with Mr BG pursuant to Rule 15.64(B) in relation to the issue of the interests of the parties in Y Pty Ltd, noting that the forensic accountant engaged by the wife, Mr AG, is to be in attendance.

7. At least 14 days prior to the date of the conference:

   a.The wife provide Mr BG a copy of any addendum of  Mr AG providing an updated value of Y as at 30 June 2013; and

   b.Either party may provide a list of questions to Mr BG (providing a copy to the other party) for Mr BG to answer at the conference, with such questions to comply with rule 15.65(2) of the Family Law Rules.

8. That in the event that there is a disagreement as to the value of Y Pty Ltd following the conference pursuant to Rule 15.64(B) then the single expert Mr BG is to prepare a statement setting out the nature and terms of any issues raised at the conference and providing clarification on his opinions as expressed at the conference.

9. That subsequent to the issue of any statement by the single expert Mr BG pursuant to Order 7 hereof, either party may request the proceedings to be relisted before the Honourable Justice Watts on short notice in relation to any application to adduce and rely upon adversarial forensic accounting evidence.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pallas & Pallas 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 SYDNEY

FILE NUMBER: WOC 856 of 2012

Ms Pallas

Applicant

And

Mr Pallas

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. At the commencement of the interim hearing on 8 May 2014 the parties agreed that consent orders could be made in relation to several issues. Three issues remained to be resolved:

   1.1.The husband seeks injunctive orders against the wife in relation to one of the parties’ companies, LM Pty Limited (“LM”), and one of the parties’ businesses, CY Pty Ltd (“CY”), to prevent the wife from unilaterally removing the husband from his position as director of LM and otherwise interfering with his day to day management of the company.

   1.2.The wife seeks that the parties increase their secured debt with the National Australia Bank (“NAB”) by the maximum amount possible, (up to an amount of $250,000), and those funds be paid to the wife to enable her to meet her outstanding and anticipated legal and accounting fees. The husband’s application in relation to an interim property settlement is that each of the parties obtains the equal benefit of any borrowings after funds are left in the account to meet capitalised interest. The parties ultimately agreed to leaving $20,000 in the account to meet interest repayments.

   1.3.The wife sought the Court’s permission pursuant to rule 15.49(1) of the Family Law Rules 2004 (“the rules”) to adduce evidence from Mr AG of II Accounting as an adversarial expert witness in relation to the issue concerning the value of Y. For reasons set out below, this issue was dealt with by orders made in chambers on 3 April 2014. Either party may request the relisting of any application for permission to adduce and rely upon adversarial forensic accounting evidence if the preconditions in those orders are met.

DOCUMENTS RELIED UPON

1. The applicant wife relies on the following:

   2.1.Further Amended Application in a Case filed 14 March 2014;

   2.2.Wife’s affidavit filed 14 March 2014;

   2.3.Amended Financial Statement of the wife filed 14 March 2014;

   2.4.Two affidavits of Mr AG filed 14 March 2014

2. The respondent husband relies on the following:

   3.1.Further Amended Response filed 11 April 2014

   3.2.Husband’s affidavit filed 11 March 2014;

   3.3.Husband’s affidavit filed 11 April 2014;

   3.4.Financial Statement of the husband filed 7 May 2014

ISSUES FOR DETERMINATION

The husband’s application to injunct the wife from using her power as sole shareholder of LM to remove the husband as director of that enterprise

1. The parties run two businesses.

2. Y Pty Limited (“Y”) purchased a business trading as Z Pty Ltd (“Z”). The parties by way of LM purchased CY. The husband had historically been the sole director of both enterprises, but on 18 April 2013 the wife as the sole shareholder of both corporate entities exercised her rights to also be a director of each enterprise.  On or about early September 2013 the wife exercised her powers as the sole shareholder of Y and removed the husband as director of that entity. The wife currently conducts the business Z, and the husband operates CY.

3. Issues exist between the parties as to their respective roles in the conduct of LM and Y both during cohabitation and subsequent to separation.

4. Order 1 of the husband’s Further Amended Response filed 11 April 2014 seeks:

   “That the wife be restrained from doing any acts or things relating to LM Pty Limited (“LM”) and/or CY Pty Ltd (“CY”) as follows:

   1.1to remove the husband as director of LM Pty Limited

   1.2contacting any staff of LM Pty Limited without the husband’s written consent;

   1.3Contacting any customers, contractors or professional staff of LM Pty Limited including accountants, the bank in relation to LM accounts and or independent contractors or suppliers to the business;

   1.4Making application to Transport for NSW in relation to license to conduct the business;  

   1.5Doing anything to interfere with the husband’s conduct of the business

5. The husband asserted that the making of these orders was essential to maintain the status quo pending a final hearing so as to prevent the wife from unilaterally engaging in any conduct to vary or change the current operations of LM and CY. The husband holds fears the wife will act to exclude him from CY. The husband points to what he says the wife previously did with Y and says that the wife’s failure to proffer any form of undertaking that she will not act in relation to LM as she has done in the past by way of Y only compounds the husband’s fears and apprehensions.

6. The wife says she has never threatened to remove the husband as director of LM so there is no basis for the injunction. Further, the wife would not exercise her rights without giving the husband four weeks’ notice in writing. Senior counsel for the wife submitted that a party moving for an injunction needs to show a real risk of harm, and that the husband has not established any risk in circumstances where she says she will provide four weeks’ notice in writing of her intention to use the power she has over the company. This would provide the husband with more than ample notice to make an application to the court. Senior counsel for the wife referred to Blue Seas Investments Pty Ltd v Mitchell andMcGillvray (1999) FLC 92-856.

7. In his affidavit filed 10 March 2014 the husband sets out events that took place on 5 September 2013 when he received a letter from the wife advising him that he had been removed as a director of Y and excluded from all business conducted by Z. The wife changed the locks of the premises of Z, directed the manager of Z not to communicate with the husband and cut off the husband’s access to all bank accounts relating to that business. At this time the wife also appointed herself as director of Y and also LM.

8. The wife asserts in her affidavit that she exercised her right as sole shareholder of the enterprises to appoint herself as director because she was concerned that the husband was not being transparent with her in relation to his running of the companies, causing her to become uncertain about the direction of funds from company bank accounts to accounts in the husband’s sole name, as well as undisclosed payments of personal expenses by the husband from company accounts. The wife contends that Y generates approximately $224,000 per annum and that annual income was the primary source of income for the family prior to separation.

9. In relation to these general assertions by the wife, the husband submits they are without substance and not particularised. The husband points to [7], [14], [36]-[37] of his affidavit filed 11 March 2014, where he has set out details of the use and application of funds in order to meet the significant expenses of and maintain the properties of the parties and the parties themselves.

10. At [74] – [83] of her affidavit, the wife sets out her concerns in relation to LM and CY. She says that the husband is not competently managing the business by, amongst other things, not ensuring that staff are adequately trained, hiring staff not fit for the job and failing to ensure that proper systems and procedures are in place. The husband denies he has done anything in appropriate in relation to the running of CY. He says he has conducted that business in the same manner he has always done and he provides explanations in relation to the wife’s concerns in his affidavit filed 11 March 2014.

11. On 27 February 2014 the wife resigned as a director of LM. At [83] of her affidavit the wife however states:

    I cannot, however, agree to the Orders [the husband] seeks in his Response restraining me from removing him as a director talking to [CY] staff in the future. Given the significant issues with [the husband’s] running of [CY], I wish to reserve my right as sole shareholder to remove [the husband] as a director and appoint myself in his stead should I consider it necessary in the future.

12. The husband was responsible for managing the operation of CY from prior to separation to the current time.  The business has 35 employees (two managers, an accounts person, two detailers and 30 drivers). The husband asserts that the wife does not have the skills or business experience to attend to the tasks of running the business and he expresses concern that if the wife takes over the CY, it will not be properly conducted and will cause loss to both the parties. The parties have agreed to consent orders in relation to disclosure. The husband has consented to provide the wife with financial disclosure in the terms set out in the orders of 8 May 2014 in respect of LM. With such disclosure the wife should be able to assess where the husband is grossly mismanaging LM or CY in a way which would require the court’s intervention on an interim basis. 

13. I find that the wife has removed the husband from Y unceremoniously and the husband’s fears that she may do the same thing in relation to LM are consequently not fanciful. The wife currently has no basis to remove the husband as director of LM unless she could establish to the court that there is some serious impropriety in the way that he is managing that business.

14. It find that it is proper to make the injunction taking into consideration the history of the matter and the importance of maintaining a status quo between now and 1 December 2014, when the matter is set down for final hearing. The wife can make an urgent application if something changes

INTERIM PROPERTY ORDERS

1. By the conclusion of submissions, both parties sought an order that they each do all things and sign all necessary documents for the purposes of increasing the current facilities available to them jointly with the National Bank to the maximum amount possible. Both parties agree that that amount will be in the order of approximately $230,000. The parties further agree that an amount of $20,000 should be left in the facility to attend to regular interest payments pending the final determination of this matter scheduled for the end of the year. It is the wife’s application that she receive the remaining amount of approximately $210,000. It is the wife’s application that the amount that becomes available under the facility is divided evenly between the parties.

2. Both parties seek these funds to complete the conduct of this litigation.

3. The principles applicable to this application are set out in Strahan (2011) FLC 93-466.

4. The wife contends the parties’ net assets (excluding superannuation) total approximately $1,353,000.

5. The parties have been cohabitating since May 1999 and were married in 1999.

6. The wife has worked as a nurse until the birth of the parties’ first child. During that time her income was applied to the joint expenses of the parties.

7. The wife submits that it is not in dispute that her parents gifted the parties $155,000 towards the purchase of the former matrimonial home in June 2000. The parties were also able to secure Y with the assistance of a loan from the wife’s sister and best friend. Those loans were repaid.

8. The wife took on the majority homemaker and parenting role after the birth of the children including home schooling them. The husband worked in the parties’ businesses to provide for the family. It is the wife’s evidence that she also assisted with the care of the husband’s gravely ill child from 2003 until 2005 and then on a full time basis between 2005-2006 when he passed away.

9. The parties have given some details as to what amounts have already been paid to lawyers by them each respectively.

10. Most of the material presented in the context of this interim hearing is contentious and is likely to be explored more fully at the final hearing. There is contention about:

    27.1.The value of the businesses that are respectively operated by each of the parties;

    27.2.The amount of disposal cash flow each of the parties has from each of those businesses. The husband does not pay child support or spousal maintenance;

    27.3.What the husband has borrowed against the parties’ assets since separation. In this written evidence, the husband indicated that he obtained a loan facility of $110,000 from the NAB – that was a personal loan secured against BB Town, Suburb HH and FF Town properties. At February 2014 that loan had a debt balance of $101,755.86. There is another personal loan account with the NAB secured against DD Town and FF Town properties which came into existence when Z was purchased. At 29 January 2014 that account was in debit $47,887 and he says was used for supervision costs, counselling fees, personal living expenses etc. His financial statement says under “Loans” that the husband has three loans with the NAB totalling $178,085;

    27.4.What funds the wife has received from a family trust and the extent to which she owes money to that family trust and the extent to which she has made proper disclosure about that family trust being a financial resource for her;

    27.5.What has happened to monies that have come into the hands of each of the parties since separation.

11. Given that much of the asserted history is yet to be explored and tested in the context of a final hearing, the order that I make is one that needs to be appropriate with the overarching consideration being the interests of justice. The order respectively sought by each of the parties is conservative in the sense that it is capable of being adjusted at the final hearing and that it is otherwise within the parameters of the parties’ respective s 79 applications.

1. I take into account:

   29.1.The fact that the husband may have borrowed between $110,000 and $180,000 post separation against the assets of the parties;

   29.2.The husband initially took the position in these interim proceedings that there should be no increase in the borrowing but subsequently changed his position;

   29.3.The wife’s control of what seems (untested) to be the more profitable of the businesses with a significantly better cash flow;

   29.4.The wife’s possible future access to her parents’ family trust.

2. I find that it is just and equitable for the additional borrowings to be distributed 130/210 (62 percent) to the wife and 80/210 (38 percent) to the husband by way of interim property order.

APPLICATION BY THE WIFE TO ADDUCE EVIDENCE FROM AN ADVERSARIAL EXPERT

1. Mr BG, the single expert witness who had been appointed with the consent of the parties has prepared a valuation. The wife now seeks to rely upon evidence from Mr AG, an adversarial expert, which takes issue with certain assumptions and opinions of the single expert.

2. Rule 15.49 of the rules provides:

   (1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.

   (2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

   (a) there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;

   (b) another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

   (c) there is another special reason for adducing evidence from another expert witness.

3. The wife contends that the observations made by Mr AG in his report in relation to the value of Y, are sufficient to show that there is a substantial body of opinion contrary to the opinion given by the single expert witness, and that the contrary opinion is necessary for the court to determine the valuation of Y and the case as a whole. Senior Counsel for the wife submitted that there are fundamental factual errors in Mr BG’s report, for example a reference to steady increase in growth when the figures show quite the opposite.

4. In light of the observations made by Mr AG with regard to the valuation of Y, it is the wife’s submission that the single expert valuation of LM Pty Limited (“LM”) may also be inaccurate.

5. In her affidavit filed 14 March 2014 the wife states that she was very disappointed with the service provided by SV Partners (Mr BG’s firm). As a result of this the wife instructed Mr AG in December 2013 to take over investigating the companies’ accounts on her behalf.

6. Senior Counsel for the wife submitted that absent Mr AG’s valuation, the court will be left solely with testing Mr BG’s valuation and the court would be therefore left in the inevitable position that the single expert would either not agree with the various propositions put to the court or the court would be left with not accepting the evidence of the single expert. It was submitted that I would then be called upon to decide what would be the appropriate cap rate thus putting myself in the position of becoming the expert. I do not agree with the submission that I become an expert if I adopt a figure that is different from that adopted by the single expert (see Lenehan; Dunbar).

7. Senior counsel for the wife submitted that there are significant differences in the two valuations and that they can’t both be right. He referred to rule 15.42(e) which sets out that one of the purposes of the single expert rules is to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interest of justice; the court must ensure not to compromise justice, and further relied on the High Court’s decision State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146, asserting that rules should not be a device to restrain the bringing of evidence or a vehicle to lock out appropriate evidence.

8. J L Holdings was considered further by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. French CJ quotes [155] from J L Holdings in its entirety (at [29] of his judgment). At [30] of his reasons French CJ says:

   It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account …Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification...

9. Senior counsel contended that the court would ordinarily allow this material as it is relevant, probative and goes directly to the heart of the issue.

10. The husband opposes the wife’s request for an order that a further expert be appointed to value Y and LM.

11. Mr BG, by way of his report dated 6 December 2012, valued the interests of the parties in Y as at 30 June 2012 at $822,000. He has not updated his opinion as to the current value of the parties’ interests in Y or LM.

12. Mr AG valued the interests of the parties in Y at $350,000.

13. The husband points to rule 15.42 which provides a restriction on expert evidence to that which is “necessary to resolve or determine a case” and the appointment and progression of single experts so as to reduce issues and costs. He further points to rule 1.04 which outlines the overarching principle behind the rules, that is, to ensure that cases are resolved in a just and timely matter at a cost to the parties in the court that is reasonable in all circumstances of the case.

14. The husband submits that the wife has not availed herself of any of the procedures identified within the rules seeking clarification of a single expert witnesses opinion, such as by way of a conference pursuant to rule 15.64B or to put questions pursuant to rule 15.65. He also submits the wife’s application is devoid of reasons why these processes have not been utilised or exhausted.

15. The husband contends that absent these processes being exhausted by the wife, her application ought not be further considered.

16. In the alternative the husband proposes the court consider rule 15.49(2) and he submits that Mr AG does not give evidence that would satisfy the court that there is a “substantial body of opinion contrary to the opinion given by the Single Expert witness.” Both Mr BG and Mr AG use and apply the same basal methodologies to arrive at their opinion – that is, a capitalised earning methodology. Different adjustments are made to calculate “maintainable earnings before interest and tax” and thereafter subjective capitalisation rates or multiplies are applied. The husband asserts that Mr AG does not know of matters not known, or that could not be known, or could not be put to, Mr BG.

17. It is submitted by the husband that in the event processes within the rules upon receipt of the singe expert’s updated opinion are exhausted, at the trial the wife will have the benefit of Senior Counsel having conferred with the wife’s shadow expert for the purposes of cross examining the single expert both as to:

    47.1.Additional evidence that may be available in the case about facts not available to the single expert including issues relating to the integrity of financial statements of relevant entities; and

    47.2.As to any of the subjective components underpinning the single expert’s opinion.

18. The husband further submits that this is a case where evidence should be given by a single expert in relation to the valuation of Y, especially in circumstances where the costs as to this issue could exponentially explode. In the event the wife’s application to adduce and rely upon evidence from Mr AG is granted, the husband will be left in a difficult position to determine whether Mr BG remains a single expert, or is to be adopted by the husband as his own expert, or in the alternative the husband will have to instruct an entirely fresh adversarial accounting expert. These matters go directly to the provisions of rule 15.52(3) which emphasise the need to consider issues of costs delay and complexity. Should the wife’s application be granted, it is submitted by the husband that it would expand the litigation both as to pre-trial matters and as to the length of the trial.

19. During submissions, I expressed the view that opportunities provided for by the rules to explore whether or not the single expert would modify the single expert’s opinion had not yet been taken. In particular, there had been no conference with the single expert for the purposes of clarifying the report as provided for in rule 15.64B. It was pointed out that that rule did not provide any restriction in relation to who could be at that conference. The only restriction is contained in rule 15.64B(6), that is, that in seeking to clarify the report of the expert witness, the parties must not interrogate the expert witness.

20. Rule 15.65 also allows the single expert witness to be asked questions which are in writing and which otherwise comply with rule 15.65(2) of the rules.

21. The wife’s application for filing of adversarial expert evidence should await the outcome of a conference with the single expert and answers to questions.

22. I indicated at the interim hearing on 8 May 2014 that I would adjourn the wife’s application pursuant to rule 15.49(a) of the Family Law Rules 2004 (“the rules”) to adduce evidence from Mr AG of II Accounting as an adversarial expert witness in relation to the issue concerning the value of Y Pty Limited (“Y”). The parties were to forward a draft minute of orders in relation to procedural directions to my chambers. The parties sent through a draft minute of orders. The draft orders provided that Mr X was to be appointed as a single expert to provide a report as to his opinion on the appropriate remuneration as at 30 June 2013 for the wife in relation to her role as an employee of Z Pty Ltd (“Z”) conducted through Y, and the husband’s remuneration as at 30 June 2013 in relation to his role as an employee of LM Pty Limited (“LM”). The parties were further to instruct Mr JS of OP Valuers to update his valuation as single expert of the property at JJ Town as at 30 June 2013, and to provide an opinion as to the rental value of the portion of the property occupied by Z as at 30 June 2013. After this additional information was available, Mr BG was to provide an addendum updating his opinion as to the interests of the parties in Y and LM as at 30 June 2013 and within 21 days of receipt of that report, the parties are to arrange for a conferral with Mr BG and Mr AG, pursuant to rule 15.64(B). Prior to the conference the single expert was to receive a copy of the adversarial expert’s report and either party was to provide a list of questions to the single expert for the single expert to answer during the conference. In the event there was a disagreement as to the value of Y following that conference then Mr BG was to prepare a statement setting out the nature and terms of any issues raised at the conference and provide clarification on his opinions expressed at the conference.

23. Only upon any statement by Mr BG as to disagreement, were the parties to request the proceedings be relisted on short notice in relation to adducing and relying upon any adversarial forensic accounting evidence. Orders to this effect were made in chambers on 3 July 2014 and a further order was made that after the single expert has issued a statement setting out the nature and terms of any issues raised at the conference and providing clarification on his opinions as expressed at the conference, either party may request that the proceedings be relisted before me on short notice to further consider the wife’s application for the use of adversarial forensic accounting evidence.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 August 2014

Associate: 

Date:  20.8.2014