Salter and Salter and Ors

[2018] FamCA 669

FAMILY COURT OF AUSTRALIA

SALTER & SALTER & ORS [2018] FamCA 669

FAMILY LAW – PROPERTY – Interim – Discovery and valuation of property interests

APPLICANT: Ms Salter

1st RESPONDENT: Mr Salter

2nd RESPONDENT: B Pty Ltd

3rd RESPONDENT: C Pty Ltd

FILE NUMBER: DNC 591 of 2017

DATE DELIVERED: 31 August 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Berman J

HEARING DATE: 16 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr Williams

SOLICITOR FOR THE 1ST RESPONDENT: Povey Stirk Lawyers & Notaries

COUNSEL FOR THE 2ND RESPONDENT: Ms Farmer

SOLICITOR FOR THE 2ND RESPONDENT: Withnalls Lawyers

COUNSEL FOR THE 3RD RESPONDENT: Ms Davies

Orders

1. That paragraphs 2 and 4 of the Application in a Case filed 12 July 2018 be listed for hearing at 4 pm on 13 September 2018.

2. That orders be made in terms of paragraphs 2(a) to (l) inclusive, 2(o) (subject to any claim of privilege) and 2(p) and (q) of the Response filed 13 August 2018.

3. That paragraphs 2(m) and (n) of the Response be dismissed.

4. That orders be made in terms of paragraphs 3 and 4 of the Response.

5. That orders be made in terms of paragraph 5 of the said Response if the valuations to be undertaken of the Property D and Property B as provided for in Order 4 herein do not include a valuation of plant and equipment located on each of the said properties.

6. That paragraph 6 of the Response be dismissed.

7. That forthwith each of the parties provide to the other the following:-

   (a)The National Livestock Identification passwords for Property D and Property B;

   (b)A schedule of all purchases of RFID’s purchased by the husband and the wife for Property D and Property B since 1 July 2016;

   (c)A schedule of all plant and equipment purchased for Property D and Property B since 1 February 2016 to date PROVIDED that a schedule is not prepared as part of the valuation process as ordered in paragraphs 3, 4 and 5 of the Response.

8. That paragraph 8 of the Response be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salter & Salter and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 591 of 2017

Ms Salter

Applicant

And

Mr Salter

Respondent

And

B Pty Ltd 
Second Respondent

And

C Pty Ltd
Third Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. Mr Salter (“the husband”) is 74 years of age.  Ms Salter (“the wife”) is 79 years of age.  The parties married in 1966 and separated on 16 February 2016 after a relationship of 50 years.

2. There are two relevant adult children being Mr F Salter (“Mr F”) and Mr G Salter (“Mr G”).

3. The business activities of the parties are properties that comprise B Pty Ltd which is the corporate trustee of the B Trust (“Property B”) (“the second respondent”) and the C Pty Ltd which involves the husband, Mr F, and Mr G (“the partnership”).

4. By Initiating Application filed 12 December 2017 the wife seeks that there be an adjustment of property between the parties to reflect an equal division of assets to be determined following a vesting of the B Trust and a dissolution of the partnership.

5. The B Trust holds two properties namely Property B and Property D.

6. Whilst the wife had originally intended that Property B would need to be sold, she now seeks to retain it as part of the property settlement. For his part, the husband seeks a transfer of Property D to him.

7. Subject to a determination as to the interests of Mr F and Mr G in the B Trust and the partnership, there appears to be agreement between the parties that the wife is to retain Property B, the husband to retain Property D, with the property settlement adjustment to reflect an equal division of the assets of the parties.

8. At this stage there is some uncertainty as to whether Mr Salter and Mr F agree with the parties’ assessment of their interest being 35 per cent of the value of B Trust to Mr G and his wife Ms H and the interests of Mr F and Mr G in the partnership.

9. If agreed, the principal focus of the proceedings is not to determine the interests of the parties but rather, to resolve any differences as to the value of the legal and equitable interests of the applicant, the respondent and the second and third respondents.

10. On 16 August 2018 the matter was listed for final hearing on 29 January 2019.

INTERIM PROCEEDINGS

1. The husband filed an Application in a Case on 12 July 2018 seeking orders that would facilitate the sale of Property B, the winding up and dissolution of the C Pty Ltd partnership and that the solicitor for the applicant and Mr G as directors of B Pty Ltd and Mr G as a partner of the company be restrained from continuing to further act.

2. The husband no longer seeks the sale of Property B, nor the application for the solicitor’s recusal. Paragraph 2 of the application seeking that the directors of B Pty Ltd provide information to the trusts accountants to enable all income tax returns and financial statements to be prepared, lodged and finalised is pressed as is paragraph 4 of the application seeking the dissolution of the partnership notwithstanding that it is to expire in any event on 29 February 2019. Those matters are listed for hearing on 13 September 2018.

3. It is a reasonable observation that given both parties are keen for the proceedings to remain as listed for hearing in the January 2019 sittings, orders that would appear to be designed to reach a concluded asset pool should be capable of resolution by the parties.

4. By Response filed 13 August 2018, the wife seeks extensive disclosure from the husband and orders for the appointment of a joint single expert to value Property B, Property D, plant and equipment (if not included in the principal valuations on a walk-in, walk-out basis) and information that will better identify the sale and purchase of stock on Property D.

5. The husband agrees paragraphs 2(a) and 2(l). He does not agree 2(m) and 2(n) which relate to his partner and 2(o) but subject to any privilege that may be claimed and considers 2(p) and 2(q) are unnecessary given that they will be dealt with by agreement of the parties to paragraphs 3, 4 and 5 of the application.

6. There is also agreement in respect of paragraphs 7(a),(b),(c) and (d) on the basis that mirror orders are to be made in respect of Property B.

7. There was no agreement in respect of paragraph 8 and whilst the husband concedes that a valuation of the plant and equipment is necessary, he anticipates that a separate orders is not required given that it will be an exercise undertaken as part of the valuations to be undertaken pursuant to paragraphs 3 and 4.

8. I do not propose to make an order in respect of paragraphs 2(m) and (n) regarding the bank statements and credit card statements for the husband’s current partner.

9. The wife seeks that the B Pty Ltd as trustee pay for the valuations of Property D and Property B. There is sufficient financial resource available to the parties that they should be personally responsible for the payment of the valuations necessary for the litigation. If the parties determine a different source for the payment of valuation fees, then that is a matter for them.

10. The wife seeks that the husband be restrained from attending at the Property B except upon notice to her and with her prior written agreement.

11. I consider that the injunction is unnecessary and given the paucity of any basis for the injunction, such an order should not be made. The husband’s counsel has made it clear that if it was necessary for him to attend Property B he will give appropriate notice. I do not consider that at this stage more is necessary.

12. I do not propose to make an order in terms of paragraph 8 of the response. Orders that are to be made are sufficient for the identification and valuation of stock and a “stocktake of all RFID’s” is unlikely to be an exercise that is either necessary or required subject to any request that it or something similar be undertaken by the jointly appointed single expert or experts.

13. I make orders as appear at the commencement of these reasons.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 31 August 2018.

Associate: 

Date:  31 August 2018