Rickett and Gull

[2008] FamCA 715

FAMILY COURT OF AUSTRALIA

RICKETT & GULL [2008] FamCA 715

FAMILY LAW – PROPERTY – Value of Property – Expert Evidence

APPLICANT: Ms Rickett

RESPONDENT: Mr Gull

FILE NUMBER: BRC 7914 of 2007

DATE DELIVERED: 14 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR NORTH
of Senior Counsel

SOLICITOR FOR THE APPLICANT: Hartley Healey

SOLICITOR FOR THE RESPONDENT: MR SHOEBRIDGE
Simonidis Shoebridge Lawyers

Orders

IT IS ORDERED THAT

1. Mr B of G Firm be appointed the single expert in the proceedings pursuant to Part 15.5 of the Family Law Rules 2004 to prepare a report outlining his expert opinion as and to the following:

1.1The value of the Husband and Wife’s interests in the following entities as at 1 September 2001, 31 August 2006 and at the present date:

1.1.1The M Holdings Trust;

1.1.2M Capital Pty Ltd, which owns interests in the following entities:

1.1.2.1S Nominees Pty Ltd;

1.1.2.2BB Company Pty Ltd;

1.1.2.3T Pty Ltd;

1.1.2.4Q Pty Ltd.

1.1.3F Group Pty Ltd, including its interest in:

1.1.3.1SL Group Limited;

1.1.3.2F Capital Limited;

1.1.3.3F Investments Pty Ltd, including its share in:

1.1.3.3.1MM Limited;

1.1.3.3.2S Management;

1.1.3.3.3M Management Pty Ltd;

1.1.3.3.4R Capital Pty Ltd;

1.1.3.3.5V Group.

1.1.4W Holdings Pty Ltd/W Investment Trust;

1.1.5O Pty Ltd including its share in:

1.1.5.1BW Pty Ltd.

1. Within 7 days, the husband advise the wife in writing of any further entities in which he has or had an interest as at the date of cohabitation, the date of separation or at the present date and Mr B also value these interests as at the nominated dates in 1(a) above.

2. The husband produce all documents requested of him by Mr B within 14 days of such request.

3. The husband pay Mr B’s professional fees in the first instance with the wife’s half share to be deducted from her ultimate entitlement on property settlement.

IT IS FURTHER ORDERED THAT

1. The costs of today be reserved.

2. It is certified that it was reasonable to brief a lawyer to appear as senior counsel in the proceedings.

IT IS ORDERED BY CONSENT THAT

1. The husband provide to Mr B of G Firm all documents requested by him in the first request for documents within twenty-eight (28) days of such request.

2. The husband provide to Mr B of G Frim any subsequent documents requested by Mr B within twenty-eight (28) days of such further request.

3. Within twenty-eight (28) days of the release of the report of Mr B of G Firm the legal representatives of the parties confer with a view to agreeing to all the directions required to properly ready the matter for a final hearing.

4. The parties consequently file, in a form capable of being sealed by the Court, consent directions facilitating the matter being ready in every respect for final hearing.

5. In the event that consent directions are not filed within twenty-eight (28) days of the date of the release of the report of Mr B of G Firm, that either party be at liberty to request the listing of the matter before a Registrar as soon as practicable thereafter on a date to be advised for the making of directions for a Final Hearing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7914 of 2007

MS RICKETT

Applicant

And

MR GULL

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I should record at the outset of these reasons that, at the callover of the duty list matters this morning, Mr North of Senior Counsel who appears for the mother, indicated that, prior to my appointment, I received a brief from the solicitors for the wife to give advice. 

2. It is common ground between the parties, at least as I understand it, that no such advice was provided. 

3. I told the parties then that I had no recollection of having received the brief nor any recollection of the name of the matter.  I forewarned to the parties at that time, however, of the possibility that further discussion of the facts might bring the matter to mind. 

4. Having now heard arguments from each side and having read at least some of the affidavit material, I continue to have no recollection whatsoever of this matter. I can only conclude that if, as seems clear, I received a brief in the matter, it was not opened by me or at least not opened by me to the extent that I have any recollection whatsoever of the matter or any of its facts.

5. Each of the parties have indicated through their respective legal advisers, that they had no objection to me hearing this application today and have also indicated they have no objection to me hearing and determining the matter in my docket.

6. The application today relates to the first four paragraphs of an application by the wife that, in broad terms, seeks an order that Mr B, a chartered accountant, be appointed as a single expert for the valuation of what I am told are significant corporate and trust entities.

7. On 18 February 2008, Jordan J made various orders.  At that time, Mr North of Senior Counsel informs me, and I gather it is common ground, that it was indicated to the Court that a corporate group in which the husband has an interest was then being considered for sale by a prospective purchaser and, as a result of that prospective sale, the valuation of at least that part of the property of the parties would crystallise.

8. That sale did not eventuate.  The husband deposes in an affidavit in respect of which leave was granted to file today, to what, in effect, are two different potential sales. 

9. The first to an entity which I will call MMC and there is a process which, in very simple terms, has another two months to run until it can be determined whether that sale will proceed. 

10. In the event that the sale does not proceed, there is interest by a further prospective purchaser, ING. It seems that, if the sale to MMC does not eventuate, negotiations with ING would take place with a view to attempting to effect a sale to that entity.

11. The wife's case can, for present purpose, be simply expressed. The parties had a relationship of some five years, including a marriage of three years and the relationship produced one child. 

12. On any view then, the relationship is a short one.  It is said by the husband that he had, or controlled, significant assets at the commencement of the relationship. 

13. It appears to be common ground that the property of the parties or either of them as at today, is likely to be, on any view, of many millions of dollars in value.

14. The wife asserts, in correspondence passing between the parties, that there have been assertions by the husband that his property was, again speaking in very broad terms, valued at somewhere between $2 million and $7 million at the commencement of the relationship, and, as at the date of separation, was valued at between $12 million and $20 million. 

15. Mr North of Senior Counsel, who appears on behalf of the wife, submits that this range is, in itself, a pointer to the need for the property of the parties or either of them to be valued with more precision.

16. He submits, at least implicitly, that it is, as at today, impossible for the wife to receive advice about her likely entitlement in dollar terms and, as a result, it is not possible, as at today, for meaningful negotiations to take place between the parties with a view to bringing these proceedings to an end.

17. The husband says that his solicitors have continually kept the wife up to date with information with respect to the prospective sales; that the sales involve significant public companies with all of the relevant requirements that sales and purchases of and by such entitles involve.

18. He submits that, if the sales proceed (and, he says, they are in train), a significant part of the asset pool will be crystallised, therefore, obviating the need for at least a significant part of the valuation to take place.

19. It is accepted by the husband that valuation of other parts of the property pool involves significant complexity but he deposes that, on his figures, those assets represent a small proportion of the total assets (about $1.5 million as compared to in excess of $20 million with respect to the balance of the assets).

20. Mr North of Senior Counsel contends that, from as early as the Full Court decision in Pastrikos, it has been established that there is an essential four step process, the first part of which is the Court identifying and valuing the property of the parties or either of them. It is precisely that, he argues, to which the prospective valuation by Mr B is addressed.

21. It is common ground that the valuation exercise proposed by the wife will be expensive: likely to be in the region of $100,000.00 and possibly more.  The order sought by the wife in that respect is that the husband pay initially the valuation expenses and her one half share of those valuation expenses be met from her ultimate entitlement. 

22. In his affidavit, sworn today and filed by leave, the husband deposes to the fact that he does not have ready access to $100,000.00 and his solicitor, Mr Shoebridge, submits in effect, that the wife should be "careful what she wishes for" because the requirement to produce a sum as significant as $100,000.00 may well precipitate sales which, to use Mr Shoebridge's words might "bring the whole house of cards down". 

23. Clearly enough, the requirement by one party to find a significant sum of money to fund a valuation process is a significant matter in the decision I have to make today. 

24. However, according to the husband's affidavit, from as early as November 2007, a sale has been mooted. Even on his case, the prospects of any sale to any entity is highly likely to involve a significantly complex process of negotiation.

25. In my view, the time has arrived for the wife to be able to ascertain, within reasonable bounds, a prospective valuation of the property of the parties or either of them. 

26. Equally as important, as it seems to me, is my acceptance of the submission made by Mr North of Senior Counsel that, in the circumstances of this case which, broadly expressed, are a relationship of relatively short duration with one child where, on any view of it, the husband entered the relationship with very significant assets and where the current asset pool is, on any view of it, very significant, it is important to obtain valuations of the property as at the date of cohabitation as at the date of separation and as at the date of trial.

27. As Mr Shoebridge submits, the majority asset here is market sensitive and the valuations are likely to change with movements in the market.  That seems to me to provide all the more reason why a Court would be interested to know the valuations of the property as at those various times.

28. If that is right, and I think it is right, then the sale or the prospective sale of a significant part of the property pool would, undoubtedly, provide useful, if not definitive evidence, to a Court in respect of valuation at a particular time.

29. But, there is nevertheless in my view, a necessity in this particular case for the Court to have valuation evidence in respect of the other periods of time earlier referred to.

30. For those reasons, I make orders in accordance with paragraphs 1 through 4 of the application in a case filed by the wife on 4 December 2007.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  26 August 2008