Quill & Quill

Case [2021] FamCA 456

FAMILY COURT OF AUSTRALIA

Quill & Quill [2021] FamCA 456

File number(s): MLC6573 of 2010
Judgment of: HARTNETT  J
Date of judgment: 14 July 2021
Catchwords: FAMILY LAW – PROPERTY – whether Applicant permitted to adduce expert evidence – substantive application in bifurcated hearing a s 79A application – retrospective valuation evidence sought to be obtained as at final property orders date of July 2010 and current - whether the Respondent’s disclosure is adequate for the hearing of this discrete application – matters referrable to an ongoing partnership between the parties contemplated by the final property orders not relevant to the determination of discrete issue - adjourn hearing date of s 79A(1)(a) and (1A) application to set aside final orders
Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited: Barker & Barker [2007] FamCA 13
Makita (Australia) Pty Ltd & Sprowles [2001] NSWLR 305; 52 NSWLR 705; 25 NSWCCR 218
Number of paragraphs: 46
Date of hearing: 10 May 2021
Place: Melbourne
Counsel for the Applicant: Mr Frenkel
Solicitors for the Applicant:  Consult Solicitors
Counsel for the Respondent: Mr Dickson Q.C.
Solicitors for the Respondent: Coote Family Lawyers

ORDERS

MLC6573 of 2010
BETWEEN:

MR QUILL

Applicant
AND:

MS QUILL

Respondent

ORDER MADE BY:

HARTNETT  J

DATE OF ORDER:

14 JULY 2021

THE COURT ORDERS THAT:

1.The Applicant husband be at liberty to rely upon the expert evidence of Mr B, certified practising valuer of C Valuers in respect of Mr B’s retrospective valuation (as at the 21 July 2010) of the properties situate at:-

(a)D Street, Suburb E, Victoria;

(b)“Property F” at 3 G Street, H Town, Tasmania;

(c)“Property J” situate at K Street, M Town, Tasmania;

(d)“Property L”, situate at 5 G Street, H Town, Tasmania;

(e)P Street, R Town;

(f)T Street, Suburb S Victoria;

(g)U Street, Location V, Tasmania;

(h)W Street, Y Town, Victoria;

(i)X Street, Suburb AA, Victoria;

(j)Z Street, Suburb BB, Victoria; and

(k)Property CC, Location O, Victoria

Mr B shall not be a single expert witness.

2.The Respondent wife is at liberty to obtain and rely upon her own expert witness evidence as to the value of any or all of the real properties described in order 1 herein. That valuation evidence be as to retrospective value as at the 21st July 2010.

3.Otherwise, the application in a case filed by the Applicant husband on 22 April 2021 be dismissed.

4.The proceeding be listed for hearing in respect of the Applicant husband’s application under s 79A of the Family Law Act 1975 (Cth) on a date to be fixed at 10.00am before Justice McGuire.

5.The proceeding be listed for a case management hearing before Justice McGuire on the a date and at a time to be fixed.

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 17.02A(b) of the Family Law…

Continue reading Quill & Quill

Sign in free to access the full text

Details
AGLC
Quill & Quill [2021] FamCA 456
Case
[2021] FamCA 456
Decision Date

CaseChat Overview and Summary

In the matter of *Quill & Quill*, Mr Quill (the applicant husband) sought to set aside final property orders made on 21 July 2010, pursuant to section 79A of the *Family Law Act 1975* (Cth). Ms Quill (the respondent wife) opposed this application. The dispute centred on the husband's assertion that the 2010 consent orders were made in circumstances of anticipated litigation and that the wife held his share of matrimonial assets on trust for him, with the assets being grossly undervalued at the time of the orders. The wife denied these claims, asserting the husband had no interest in property in her name or controlled by her.

The court was required to determine whether the applicant husband should be permitted to adduce expert evidence from a certified practising valuer regarding the retrospective valuation of several properties as at July 2010 and currently. Additionally, the court considered the adequacy of the respondent wife's disclosure for the hearing of the discrete section 79A application. The court also had to assess the relevance of matters pertaining to an ongoing partnership between the parties, which was contemplated by the final property orders, to the determination of the section 79A application.

Hartnett J permitted the applicant husband to rely on expert evidence from Mr B, a certified practising valuer, for retrospective valuations of specified properties as at 21 July 2010. The respondent wife was also granted liberty to obtain and rely on her own expert witness evidence for retrospective valuations of the same properties as at that date. The court dismissed the husband's application to rely on expert evidence from Mr GG and Mr KK, finding their proposed evidence to be either unnecessary, irrelevant, or not of assistance to the court at that juncture. The court accepted submissions that alleged discrepancies in partnership accounts and the application of income generated by the wife's entities after the 2010 orders were not relevant to the section 79A application.

The court ordered that the husband's application to rely on the expert evidence of Mr GG and Mr KK be dismissed. The remainder of the application filed by the applicant husband on 22 April 2021 was also dismissed. The proceeding was listed for hearing in respect of the applicant husband’s application under section 79A of the *Family Law Act 1975* (Cth) on a date to be fixed before Justice McGuire, with a case management hearing also to be scheduled.

Orders

Orders of the court

MLC6573 of 2010

BETWEEN:

MR QUILL

Applicant

AND:

MS QUILL

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

14 JULY 2021

THE COURT ORDERS THAT:

1. The Applicant husband be at liberty to rely upon the expert evidence of Mr B, certified practising valuer of C Valuers in respect of Mr B’s retrospective valuation (as at the 21 July 2010) of the properties situate at:-

(a) D Street, Suburb E, Victoria;

(b) “Property F” at 3 G Street, H Town, Tasmania;

(c) “Property J” situate at K Street, M Town, Tasmania;

(d) “Property L”, situate at 5 G Street, H Town, Tasmania;

(e) P Street, R Town;

(f) T Street, Suburb S Victoria;

(g) U Street, Location V, Tasmania;

(h) W Street, Y Town, Victoria;

(i) X Street, Suburb AA, Victoria;

(j) Z Street, Suburb BB, Victoria; and

(k) Property CC, Location O, Victoria

Mr B shall not be a single expert witness.

2. The Respondent wife is at liberty to obtain and rely upon her own expert witness evidence as to the value of any or all of the real properties described in order 1 herein. That valuation evidence be as to retrospective value as at the 21st July 2010.

3. Otherwise, the application in a case filed by the Applicant husband on 22 April 2021 be dismissed.

4. The proceeding be listed for hearing in respect of the Applicant husband’s application under s 79A of the Family Law Act 1975 (Cth) on a date to be fixed at 10.00am before Justice McGuire.

5. The proceeding be listed for a case management hearing before Justice McGuire on the a date and at a time to be fixed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Only if the husband succeeds on one or both of the above grounds, as raised by him, and the orders of 21 July 2010 are, as a consequence, set aside, will the Court consider in the context of a subsequent second trial whether to, in the exercise of its discretion and having considered whether it is just and equitable to make any order which would adjust the parties legal and equitable interests in property, make another order under section 79 in substitution for the orders so set aside.Background The husband was born in 1943 and is now aged 77 years. The wife was born in 1958 and is now aged 62 years. In 1979, the parties married. In 2000, they separated, after a 21-year period of cohabitation. On 5 November 2020, the wife filed an application for divorce. On 25 February 2021, a divorce order was made. On 21 July 2010, the final property orders the subject of the s 79A of the Act application were made by consent of the parties. Since the making of those orders, the parties have continued to operate a partnership known as DD Company to the present time. The husband has continued to have sole use and occupation of D Street, Suburb E in the State of Victoria (the “Suburb E property”), which had, in September 2009 been transferred from the joint proprietorship of the husband and wife to the sole proprietorship of the wife. The husband claims that since the making of the final orders, in July 2010, he has continued to make financial contributions toward the capital upgrade and maintenance of the Suburb E property; together with the Property F land, situate at G Street, H Town, Tasmania (the “Property F”) and P Street, R Town, Victoria (the “R Town property”). The R Town property was also, in September 2009, transferred from the joint proprietorship of the husband and wife to the sole proprietorship of the wife. It is the husband’s assertion that the parties entered into final property consent orders in July 2010 in order to divest the husband of assets in circumstances where there was anticipated commercial litigation by the National Australia Bank (the “NAB”) against the husband. The husband’s further evidence is that there was a verbal agreement between the parties, made outside of the consent orders, that the wife would hold the husband’s share of the matrimonial assets on trust for him as to 50% thereof until a later date. That is, he makes a declaration of trust. The husband asserts that this arrangement, not sufficiently particularised by him, was initiated by his and the wife’s accountant, Ms Q, and agreed to by the parties. The wife denies there was any agreement entered into by the parties as claimed by the husband or at all, and her position is that the husband has no interest in property in her name and/ or in the name of any entities controlled by her following the making of the final consent orders. It is further the husband’s case that the property adjustments provided for in the consent orders were not an alteration of the parties’ property interests in a manner that was just and equitable. It is the husband’s position that the non-superannuation assets which were transferred from the joint proprietorship of the parties and/or from the husband’s name solely and/or entities which he or they controlled to the wife’s name solely, or to entities which she controlled solely, were grossly undervalued at the time of the parties signing the application for the consent orders, which orders were subsequently made without any evidence before the Court as to value.

Evidence

Evidence Before The Court

The husband’s application to rely on evidence from Mr GG for the purpose of the s 79A of the Act application is dismissed. Evidence of Mr KK – forensic accountant from LL Accountants A proposed expert report to be prepared by Mr KK, forensic accountant, of LL Accountants, falls into a similar category. The husband’s Counsel submitted that Mr KK’s proposed evidence was relevant to the miscarriage of justice ground and to the implied consent ground both of which are relied upon by the husband. The husband’s Counsel submitted the Court would be assisted by expert evidence from Mr KK to enable it to determine whether the value of the Property F given by the parties in the application for consent orders of ($691,686) (negative value in the N Trust, which the husband refers to as the “N Property Trust”) was its “real value”[5] or whether it was an accounting artifice. The wife’s evidence is to the contrary, namely that the Property F was given a value of $6 million as agreed by the parties at the time of the making of the consent orders. That is evidence readily available to the Court by an examination of the evidence placed before the Court at the relevant time. There is no necessity or relevance for any evidence from Mr KK as to this matter at this juncture. Counsel for the husband also submitted that Mr KK would be able to assist the Court in providing expert evidence to determine whether the only material non-superannuation asset that the application for consent orders gave to the husband, the right to a purported $4.7 million dollar loan to MM Proprietary Limited was a “real asset or not.” There is no relevant opinion evidence based on his specialised knowledge that he could provide. The Court would not be assisted at this point as claimed. Mr KK ability to value the husband’s right to pursue a third party for the recovery of loan money as at July 2010 is a matter that can be explored by the husband and Mr KK by considering those documents available to the husband around the time of the making of the final orders including those documents which related to the husband’s dealings with Mr NN. All of the relevant documents are documents which will be held by the husband given the husband’s dealings with Mr NN which were not matters engaged in by the wife. [5] Barker & Barker [2007] FamCA 13 at [45]. Any alleged (by the husband) discrepancies in the Partnership accounts are also not relevant to the determination of the Applicant’s s 79A of the Act application, in particular where the final orders contemplated the ongoing existence and operation of the Partnership. The wife disputes the existence of any discrepancy in the accounts of the Partnership either in 2010, or now. Even if such discrepancies existed, it was submitted, they could have no possible relevance to the question of the section 79A of the Act application. Further, the wife submitted, the application of income generated by the wife’s entities after the 2010 orders could have no possible relevance to whether there had been a miscarriage of justice or consent within the meaning of section 79A(1A). The Court accepts those submissions. Further Disclosure

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.