RATNAYAKE & PRADEEP

[2015] FamCA 703

FAMILY COURT OF AUSTRALIA

RATNAYAKE & PRADEEP [2015] FamCA 703

FAMILY LAW – PROPERTY – Valuation – Dispute between the parties as to responsibility for the payment of a valuation of real property – wife submits that the husband pay for the valuation at first instance and that the question of her contribution to valuation be reserved to the trial judge – husband submits that the usual rule should apply that the parties share in the cost of the valuation – where both parties currently face financial difficulties – interim orders made that the parties share equally the costs of valuation

Family Law Act 1975 (Cth)

APPLICANT: Ms Ratnayake

RESPONDENT: Mr Pradeep

FILE NUMBER: MLC 1620 of 2015

DATE DELIVERED: 4 August 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Elliot

SOLICITOR FOR THE APPLICANT: Keith A Elliott Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Mimmo

SOLICITOR FOR THE RESPONDENT: Plaza Lawyers

Orders

1. That the Husband and the Wife obtain a Sworn Valuation of the property situate at C Street, Suburb B within 30 days such costs to be shared equally between the parties.

2. That the Husband put forward three (3) valuers to the Wife for her selection of one (1) valuer to prepare a sworn valuation of the said property.          

3. That the respective solicitors for the parties send a joint letter of instruction to the valuer.

4. That the matter be adjourned to a Conciliation Conference on 18 September  2015 at 9.15am.

5. That all extant interim applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ratnayake & Pradeep 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 MELBOURNE

FILE NUMBER: MLC 1620 of 2015

Ms Ratnayake

Applicant

And

Mr Pradeep

Respondent

REASONS FOR JUDGMENT

1. I am asked to determine one issue arising from the interim applications that come before me today in the Judicial Duty List.  That issue relates to the question of who should be responsible for the payment of a valuation of the parties’ principal asset, a residential property in Suburb B, which is currently occupied by the applicant wife. 

2. The wife seeks that the husband meet the costs of valuation at first instance and that the question of her contribution to valuation be reserved to the trial judge.

3. The husband opposes that application.  He says that the usual course should be adopted and that is that the parties share the costs of valuation. 

4. I am informed by the solicitor appearing on behalf of the wife that the likely cost of valuation will be in the order of $1000.  Therefore, the costs of one-half of that valuation will be approximately $500. 

5. The parties have each filed financial statements in the course of the proceedings.  The financial statement filed on behalf of the wife is that filed 2 March 2015.  It is evident from that financial statement that the wife is in employment and that she has a weekly income.  She deposes in that document that she has a weekly income of approximately $1700 per week and that her expenses in fact exceed her income. 

6. The submission made on behalf of the wife is that it would be an unfair burden on her to meet the costs of valuation at this point in time in circumstances where she is servicing many of the parties’ debts, particularly the debts with respect to the mortgage liability secured over the title to the former matrimonial home. 

7. The submissions made on behalf of the husband paint an equally difficult position from his perspective.  He relies on his financial statement, which was filed on 1 April 2015.  In that document he deposes that his weekly income is approximately $430 per week.  It is unclear whether that income related to his employment as a dance instructor or, indeed, whether it was related to his employment as a subcontractor.  In any event, what is said on his behalf is that there is little surplus of income above his expenses.  In that document he discloses expenses of approximately $350 per week.  However, I note that there is no allowance in his financial statement in respect of his rental or accommodation expenses. 

8. The position is difficult from both parties’ perspectives.  Doing the best I can in the circumstances of the case, I take the view that the appropriate course is that the expenses for the valuation be shared between the parties.  That is the usual course adopted in this court.  It is evident from the material filed by each of the parties that they face difficult financial pressures currently.  The requirement that they each meet half of the costs means that they will each be required to find a sum in the order of $500 to obtain valuations.  It may well be that they need to look to other sources to meet that payment in the short term but in circumstances where both parties, on the face of their financial statements, are in extremely parlous circumstances, there seems little alternative but to make orders in those terms.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 August 2015.

Associate: 

Date:  4 August 2015