Somnial and Somnial and Ors

[2008] FamCA 545

FAMILY COURT OF AUSTRALIA

SOMNIAL & SOMNIAL & ORS [2008] FamCA 545

FAMILY LAW – PROPERTY – application for adjournment – late receipt of expert’s report – report stated to be provisional – whether party should have opportunity to provide expert with additional information.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: MS SOMNIAL

RESPONDENT: MR SOMNIAL

2^nd RESPONDENT: G PTY LTD

3^rd  RESPONDENT: B PTY LTD

4^th  RESPONDENT: D SOMNIAL

FILE NUMBER: MLF 2913 of 2005

DATE DELIVERED: 7 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 7 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Melilli

SOLICITOR FOR THE APPLICANT: Lander and Rogers

COUNSEL FOR THE HUSBAND, 2^ND, 3^RD AND 4^TH RESPONDENTS: Mr G. Thompson

SOLICITOR FOR THE HUSBAND, 2^ND, 3^RD AND 4^TH RESPONDENTS: Isakow Solicitors

Orders

1. That all extant applications for final orders be adjourned for hearing on 6 October 2008, marked as a four day trial.

2. That at or before 4 pm on 15 July 2008 the husband and wife provide to Mr M (a single expert witness appointed in these proceedings) the following:

   (a)copies of documents requested by Mr M in his preliminary report dated 4 July 2008;

   (b)such further information, documents and instructions upon which they seek to rely; and

   (c)any written submissions relevant to the preparation of the final report.

3. That it is requested that Mr M provide his final report at or before 4 pm on 22 July 2008.

4. That at or before 4 pm on 25 July 2008 the husband and wife deliver any questions which they seek Mr M answer and it is requested he provided answers to any such questions by 4 pm on 30 July 2008.

5. That the husband and wife each provide to the other, through his or her solicitors, copies of all information, documents and instructions provided to Mr M.

6. That the final report of Mr M be filed by 31 July 2008.

7. That the husband have leave to file affidavits sworn by Ms H and D Somnial.

8. That the husband and wife each have leave to file and serve any further affidavits upon which he or she seeks to rely by 4 pm on 15 July 2008.

9. That the costs of each party of this day be fixed at $5,000 (including counsel’s fees).

10. That judgment on the competing applications for costs thrown away as a result of the adjournment be reserved until receipt of the final report of Mr M, provided that each party have leave to file an additional written submission in relation to his or her costs application by 8 August 2008.

11. That general liberty be reserved to the parties to apply to the Honourable Justice Brown on 24 hours’ notice to the other parties.

12. That as soon as practicable the solicitors for the husband provide a sealed copy of these orders to Mr M and advise him of the adjourned trial dates.

13. That the reasons for judgment delivered this day be transcribed and a copy made available to the parties.

14. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2913 of 2005

MS SOMNIAL

Applicant

and

MR SOMNIAL

Respondent

and

G PTY LTD
Second named Respondent

and

B PTY LTD
Third named Respondent

and

D SOMNIAL
Fourth named Respondent

REASONS FOR JUDGMENT

1. To put this application in context, it is necessary to say a little about earlier events.  As both counsel noted, these proceedings commenced when the wife filed an application on 27 September 2005, in which she sought both parenting and property orders.  The husband filed a response to that application on 4 November 2005.  A number of interim applications were filed.  On 13 September 2006 Dessau J made orders, by consent, in the context of such an interim application.  One order gave the wife $70,000, to be characterised by the trial judge, and the parties agreed to attend a judicial settlement conference.

2. The judicial settlement conference commenced before Dessau J on 30 November 2006.  As I understand, it was adjourned to 3 May 2007, an unusual course, but no doubt considered appropriate to the circumstances of the case.  When the conference reconvened before Dessau J the case did not resolve and she was, of course, then disqualified from determining it. 

3. The case came before me on 9 November 2007.  The parties then were in disagreement about what directions were necessary to get the case ready for trial.  One issue related to the question of the property brought to this marriage by the husband, and the wife’s contention that expert evidence should be called to establish the value.  That was argued before me and on that day I delivered a ruling about that aspect, and a number of matters in issue relating to the preparation of the trial.

4. The parties at that time had agreed on certain other things to be done and agreed on a timetable for those matters, and proposed these be submitted as consent minutes.  Those involved at the time (counsel for the wife was not one of them) will recall that a problem arose in formulating that part of the orders which were to be made by consent.  I make no criticism of the solicitors in saying that.  The matter did not come back to me until 13 March, at which point the time frame had to be reassessed.  As orders were signed on 13 March, the original trial date of 14 April was vacated.  Taking into account the directions made on 13 March, the trial was refixed for today.

5. An order made on 13 March provided for a report to be prepared by M Associates, going to the financial circumstances of each of the parties as at June 1990 when cohabitation, on at least one argument, commenced.  The report was to be filed by 9 May 2008.  The husband's case has been, from the outset, that he bought very significant assets (broadly $1.4 million) to the marriage, a case contested by the wife.  It is, of course, a vital issue.  Mr M was also to value a business, known as C Company, which was owned B Pty Ltd. 

6. Tendered today, marked as Exhibit “H1” for identification, is a bundle of correspondence which traces progress in implementing the order for valuation by Mr M of the parties’ asset position at cohabitation.

7. It took some six weeks for the wife's solicitors to send a draft letter of engagement to the husband's solicitors.  It is detailed and clear.  Within two days, the husband’s solicitors confirmed that no amendments were required. Within a further two days, his solicitors returned to the wife's solicitors the counter-signed letters of authority for Mr M.  After that flurry of activity between 28 April and 2 May there was then another interregnum until 13 May, when the wife's solicitors sent the husband’s solicitors a copy of their letter of engagement to Mr M.  That was some four days after the due date for the filing of the report. 

8. On 14 May, the following day, Mr M wrote, noting additional material needed by him.  In response, the husband's solicitors wrote to the wife's solicitors, expressing concern at the delay and the potential for the trial to be jeopardised.  They provided detailed information to Mr M on 29 May. 

9. On 18 June the wife's solicitors provided further submissions to Mr M, noting that they had not received a copy of the husband's earlier advice to him.  They were provided with a copy of it the next day.  On 23 June the wife made further submissions to Mr M, and further information from her was sent to him on 24 June. 

10. On 25 June, possibly in response to that, Mr M faxed the husband's solicitors, seeking more information; he sought even more on 30 June.  On 30 June, the husband's solicitors responded to Mr M.  They sent two more letters to him, with additional information, on 1 July and 2 July.  Many of the requisitions from Mr M, if I can call them that, went to the question of the assets at 1990, but some went to the value of C Company. 

11. Mr M completed his report on 4 July and a copy was provided to the husband’s solicitors that afternoon.

12. It is the submission of counsel for the husband that the report, on its face, makes clear its provisional nature and that the gaps cannot be filled in the course of running a trial.  In paragraph 7.4 Mr M notes that he had requested from the husband's solicitor a response to issues raised by the wife's lawyers, but had received no response.  That request was made on 29 June, less than a week prior to the date of the report. 

13. Paragraph 7.5 commences with a reference to Mr M’s “preliminary comments”.  In paragraph 7.5.1, the fourth dot point, Mr M sought a response from the husband in relation to particular issues.  In paragraph 7.5.2, in the last dot point, he sought a response from the husband in relation to other issues specified in that paragraph.  In paragraph 7.5.3, the last dot point, he sought a response from the husband in relation to a question relating to the registered proprietorship of a property.  In paragraph 7.6 Mr M prefaced an opinion by noting:

    “If no further evidence is provided then the parties' estimated net asset positions are as follows”.  

14. At 7.7 Mr M noted in respect of the very issue at the heart of the case, that:

    “the above could change if the husband provides additional evidence of ownership”.

15. For the wife it is put, and put strongly, that the husband has had close to three years to produce evidence supportive of his assertion that he bought $1.4 million in assets to this marriage.  Whilst the initial delay in instructing Mr M is conceded, it is put that it was within his power to provide all the necessary documents earlier.  A number of the documents to which Mr M refers at page 8 of his report are pretty mundane and are documents a reasonable person would assume necessary if one were looking to value assets some 18 years ago.  Mr Melilli has put all that could be put on his client's behalf.  The trial has already been adjourned once, after the date had to be vacated.  It is perilously close to three years from the time the initiating application was filed. 

16. Responsibility for delay is often attributed to the court, but it is not the court which has the capacity to obtain and file evidence.  The central question today is whether an adjournment is necessary to do justice between the parties.  However reluctantly, I am satisfied there is force in the husband’s submission, insofar as it relates to the asset pool at 1990.  I have not adverted to that part of Mr Thompson's submissions which went to Mr M’s valuation of the business.  If that had been the sole matter, I would not be granting an adjournment, particularly having regard to the asserted value of the business.  But that is not the sole matter, and the parties’ respective asset positions in 1990 are at the heart of this case. 

17. Much of the evidence before the court relates to whether a car in the possession of the husband's son from a former marriage should be included in the pool; whether a car in the possession of the wife's daughter from an earlier marriage should be included in the pool; what property was taken out of a holiday house by the wife after separation and what its value might be.  What is missing is reliable (as opposed to provisional) expert evidence of the 1990 position which, in an earlier ruling, the court determined to be necessary, in the context of a relatively short relationship.

DISCUSSION

1. Earlier I ruled on an application for an adjournment, which was granted.  Counsel for each of the parties seeks costs of the adjournment, being costs thrown away.  The husband's case is that the adjournment was necessitated by the fact the report was not available until Friday.  The report is couched as provisional or preliminary.  More information is available, but despite their best endeavours, they cannot fill the gaps on the run.  It is submitted that primary responsibility for the adjournment lies with the wife's solicitors, as a result of their late instruction of the expert, Mr M.

2. For the wife it is said that it has always been the husband's case that he bought something like $1.4 million to the marriage.  If he were going to establish that, he was always going to have to adduce evidence to prove it because the fact was contested.  The wherewithal (in terms of corroborative material to prove it) was always going to have to be provided by him; if there is yet more material to be provided, why was it not discovered, if it is relevant?  It is put that the wife’s financial position is less strong than that of the husband and that her costs thrown away should be paid by him.

3. I propose to fix the costs of each of the parties thrown away at a round $5,000.  I hear what Mr Thompson said about his brief, and what would be marked if the matter were adjourned but the practice (however appropriate) is not universal and his brief is marked higher than the figure he initially sought.  There is not a great deal of difference between the two briefs.  There is an interpreter on the wife's side.  I can probably assume both parties have signed costs agreements and  the sum allowed for solicitors may be less than the costs incurred.  Nevertheless, I fix the costs of each side thrown away at $5,000.

4. I propose to reserve the decision on the costs application to myself, until receipt of the amended report of Mr M. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown.

Acting Associate: 

Date:  16 July 2008