PRENTICE & MAHERIS

[2010] FamCA 360

FAMILY COURT OF AUSTRALIA

PRENTICE & MAHERIS [2010] FamCA 360

FAMILY LAW – PROPERTY – Valuation issues as at date of marriage

APPLICANT: MR PRENTICE

RESPONDENT: MS MAHERIS

FILE NUMBER: MLC 11939 of 2007

DATE DELIVERED: 3 MAY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 3 MAY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR THOMPSON

SOLICITOR FOR THE APPLICANT: AITKEN PARTNERS

COUNSEL FOR THE RESPONDENT: Mr STRUM

SOLICITOR FOR THE RESPONDENT: TAUSSIG CHERRIE & ASSOCIATES

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11939 of 2007

MR PRENTICE

Applicant

And

MS MAHERIS

Respondent

REASONS FOR JUDGMENT

1. As a preliminary objection Mr Thompson, prior to his client commencing evidence, and indeed prior to the formal opening of the husband’s case, raised the issue of the valuation as at date of marriage of the properties at M Street, M, and 1 K Road, K.  The single expert valuer in this case is Mr PG of the firm V Real Estate Valuers.  Presently there is no valuation of each of those properties as at 8 June 1997 before the court.  Mr Thompson advised the court that over this past weekend, and no earlier, Mr PG had been requested to provide to the husband’s solicitors, at the expense of the husband, a copy of that valuation date for each of those properties. 

2. Notice of that request was not given to the wife’s solicitors and the matter has been raised for the first time in court this morning. On behalf of the wife, Mr Strum objects, and presently his submission is centred around the position that, as the husband and his legal advisers had not previously sought that evidence, it would be prejudicial to the wife’s case for such evidence to now be sought and obtained, and simply that it is too late in the hearing and would be oppressive and may cause the wife to seek further or other valuation advice. 

3. By way of court orders, the first valuation order was made by Registrar Lethbridge on 22 April 2008.  At that time, it was ordered by consent that the parties obtain joint valuation of real estate, inclusive of the above two identified properties.  At that stage, the husband was represented by his former solicitor, and the wife by another member of counsel.

4. On 3 September 2009, the matters were before me.  Mr Strum then appeared for the wife and the husband appeared in person.  Valuation orders were made in the manner outlined in paragraph 3 of those orders.  The single valuation expert, V Real Estate Valuers, was required to inspect and value properties including the two properties the subject of this preliminary application.  Of significance, a further property, that is at 2-4 K Road, K, was also to be valued, and for particular reasons which will become apparent in the evidence of this matter.  That property was to be valued as at various dates including 17 July 1997, a date some six weeks after marriage.  That date is of significance in the case as it relates to a purported contract date, which will be more particularly examined in the evidence of the parties and the husband’s brother, and/or other witnesses.  But the purpose that Mr Strum identifies that order is to highlight that other valuation dates for other properties were said to be then at the forefront of the husband’s mind on that day, and in his appearance before me.  I have due regard to that order in this interim ex tempore judgment. 

5. Subsequently, it is a fact that Mr PG has valued each of the subject properties of this application, and for the purposes of this hearing, the property at M Street, M, is valued currently at $1.2 million, and the property at 1 K Street, K, is valued at $1.450 million, all subject to appropriate encumbrances or other liabilities as may be determined.  Mr Strum identified that the husband, in his affidavit of evidence-in-chief, document 64 in the court index, had, in paragraph 10 thereof, purported to ascribe a value to the property at 1 K Street at the time of marriage, and, said by him to be valued then at approximately $500,000.  There does not seem to be, in that affidavit or on the basis of what has now been identified to assist the court, any purported valuation of M Street, as at the date of marriage. 

6. Mr Thompson has taken the court to my earlier ex tempore judgment for the hearing on 28 November 2008, and in particular identified paragraph 26 in that judgment.  At a hearing before me on that day, both Mr Strum and Mr Thompson then appeared for their respective clients.  There was clearly a discussion before me, and reference then made to the valuation of 1 K Street.  Each of the clients then had an appraisal evaluation.  The wife, from Ray White Real Estate Agents, and the husband from C Realty.  Those valuations were significantly apart, a difference of some $400,000-$600,000, or thereabouts.  There is no reference in that paragraph to there being any evidence of the value of that property at 1 K Street as at the date of marriage, or indeed any earlier date.  I have carefully reread that paragraph, and it is clear that I regarded those appraisals as wholly unsatisfactory, and they in turn led subsequently to orders for valuations being made.

7. Mr Thompson’s submission in regard to that paragraph is that investigation by him of the appraisal from C Real Estate highlighted that included within that document, which is not in evidence before the court now, or seemingly on that interim hearing, was a reference to the value of the property as at the date of marriage, that is in June of 1997.  The court currently has no knowledge of that document of that alleged valuation. 

8. Insofar as the appraisal was a matter of discussion between the court, and the court was informed of the overall value of property on those competing appraisals, as at November 2008, I draw no benefit from that interim proceeding and the matters discussed in that interim proceeding within the court this day.  It is not suggested in that paragraph or indeed by counsel that matters were formally tendered to the court and marked as exhibits in the interim proceedings.  Even if they were, they were evidence in the interim proceeding, where a very different standard and approach is taken to finality of documents and evidence.  There is a very marked discretion within the court in how and in what manner to deal with documents and evidence on an interim basis for the purposes of procedural orders.  That is to be contrasted with a defended hearing on these property matters now before the court.

9. Having considered all of those preliminary submissions from counsel and identification to earlier documents what I intend to do is to quarantine the outcome of this ruling, pending advice from Mr PG as to whether he can, within the timeframe of the expedition required in this court case, have that information reliably available so that he can give expert evidence thereupon.  I empower the solicitors for both parties to have discussions on that evidence and timetable over the next day or so.  I have been advised that Mr PG is likely to give evidence on matters, subject to final agreement on all of his updated valuations of both the two subject properties, and other properties.  It does seem as if his updated valuation, whilst not requested by or on behalf of the husband, has some level of acceptance, but again, I reserve that matter to counsel to further discuss over the initial day or so of this hearing. 

10. I therefore defer giving a ruling as to the admissibility of that evidence.  I am conscious that Mr PG is the single expert, and were it not he being asked, the application would have been now, most likely, been dismissed.  I will, however with this short ex tempore ruling, quarantine this issue and reserve my determination as to whether I will accept evidence of valuation of these two subject properties as at the date of marriage.  I will have these reasons transcribed, placed upon the court file, and made available to the court and the parties.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: