Tait and Marcic - [2009] FMCAfam 936

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAIT & MARCIC

[2009] FMCAfam 936

FAMILY LAW – Property settlement – determination of asset pool – dispute between valuers – difference in business and property valuations – equal contributions – future needs of the parties – adjustment in wife’s favour.

Family Law Act 1975 (Cth), ss.75(2), 79, 79(4)

Norbis & Norbis [1986] 161 CLR 513
Lee Steere & Lee Steere (1985) FLC 91-626
Tuck & Tuck (1981) FLC 91-021
D & D [2003] FamCA 473
McMahon and McMahon (1995) FLC 92-606
Ferraro & Ferraro (1993) FLC 92-335
Clauson & Clauson (1995) FLC 92-595
Russell & Russell [1999] FLC 92-877
Pierce & Pierce (1998) 24 Fam LR 377
Weir & Weir (1993) FLC 92-338
DJM & JLM (1998) FLC 92-816
Omancini & Omancini (2005) FLC 93-218
Mallet & Mallet [1984] FLC 91-507
AER & AG [2004] FMCAfam 641
Phillips & Phillips (2002) FLC 93-184
Waters v Jurek [1995] FLC 92-635
In the marriage of Little (1990) FLC 92-147
Georgeson & Georgeson (1995) FLC 92-618
Best v Best [1993] FLC 92-418
In the marriage of Coghlan (2005) 33 Fam LR 414
Elsey v Elsey (1997) FLC 92-727
In the Marriage of Little (1990) FLC 92-147
Chorn & Hopkins (2004) FLC 93-204
Townsend & Townsend (1995) FLC 92-569
In the marriage of Lenahan (1987) 11 Fam LR 615
Commonwealth v Milledge (1953) 90 CLR 157

Applicant:

MR TAIT

Respondent:

MS MARCIC

File number:

MLC 316 of 2008

Judgment of:

O’Sullivan FM

Hearing dates:

26, 27, 28 May & 13,14 August 2009

Date of last submission:

18 September 2009

Delivered at:

Melbourne

Delivered on:

18 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr P. O’Shannessey

Solicitors for the Applicant:

Harwood Andrews Lawyers

Counsel for the Respondent:

Ms. M. Smallwood

Solicitors for the Respondent:

Pearsons Barristers & Solicitors

ORDERS

The parties bring in minutes of orders to give effect to these reasons for decision within 28 days.
The matter be adjourned to a date to be fixed, but not before 25 January 2010 for the purposes of making final orders to give effect to these reasons.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT MELBOURNE

MLC 316 of 2008

MR TAIT

Applicant

And

MS MARCIC

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern the outcome of a protracted hearing over an application for the division of matrimonial property pursuant to section 79 of the Family Law Act 1975 (“the Act”).
The applicant is Mr Tait (“the husband”) and the respondent is Ms Marcic (“the wife”).
By the time the matter proceeded to final hearing the husband was

44 years of age and the wife was aged 39 years. The parties married on (omitted) 1994, separated on 22 October 2007 and were divorced in 2009.
The proceedings were commenced by an application seeking parenting and property orders filed by the husband on 14 January 2008. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tait and Marcic

Details

AGLC: Tait and Marcic [2009] FMCAfam 936
Case: [2009] FMCAfam 936
Decision Date: 18 December 2009

CaseChat Overview and Summary

The parties involved in the case were the husband and wife, with the wife represented by Mr M, the husband represented by Mr P, and Mr S also providing a valuation. The dispute centred around the valuation of a property known as the Site. The valuation reports provided by the three valuers differed significantly, leading to a court order for a conference of valuers to resolve the discrepancies. The court was tasked with determining which valuation should be accepted, given that it was not bound by any particular choice among the three. The valuers had different approaches to their valuations, with Mr M valuing the Site at $1,585,000, Mr P’s valuation not detailed in the text, and Mr S’s valuation also not specified.

The legal issues before the court were whether the valuation provided by Mr M, Mr P, or Mr S should be accepted, and if the court could make a decision independent of the parties' preferences. The court had to consider the methodologies and conclusions of each valuation report, particularly focusing on the differences in the basis of valuation and the factors each valuer took into account. The court also needed to address the discrepancies in the valuers' conclusions regarding the treatment of additional land, the application of market yields, and the impact of a reported defect on the property’s value.

The court deliberated on the various valuation approaches and the level of consensus reached among the valuers. It considered that while there was some agreement on certain aspects such as rents and letting up allowances, significant disagreements remained, particularly in the treatment of additional land and market yields. The court also took into account the expertise of the valuers and their ability to assess structural issues. Ultimately, the court determined that it was not bound by the parties’ preferences and could independently assess the merits of each valuation. The court decided to adjourn the matter to allow for the final orders to be made, giving effect to its reasons for decision.

ORDERS:
1. The parties are to bring in minutes of orders to give effect to these reasons for decision within 28 days.
2. The matter is to be adjourned to a date to be fixed, but not before 25 January 2010, for the purposes of making final orders to give effect to these reasons.

Orders

Orders of the court

The parties bring in minutes of orders to give effect to these reasons for decision within 28 days.

The matter be adjourned to a date to be fixed, but not before 25 January 2010 for the purposes of making final orders to give effect to these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Pursuant to the orders made by the Court on 27 May 2009 a report of the conference of valuers was prepared which provided:“Basis of valuation- ConclusionIt was resolved by the valuers that the discrepancy in the assessment is primarily attributed to the “direct comparison” versus “summation” basis of valuation adopted in this instance. Acknowledging that all valuers had given regard to the “capitalisation of income” approach as a check method of assessment, it was therefore considered a constructive basis of consideration for the purposes of endeavouring to establish areas of agreement and disagreement by focusing on this method as a means of trying to reach a common agreement in this matter.· Although consensus was not reached on the applied rent, parties arrived at rents close to common agreement; as was the case with agreement of letting up allowances.· Consensus was not reached on the treatment of the additional (rear) land; (name omitted) and (name omitted) Valuations both adopted ground rentals and capitalised same at prevailing market yields; (name omitted) Valuers preferred the application of a $ rate-per-square metre for same. Notwithstanding the valuers differing approaches, the difference between the valuers’ added valuers for the rear land was not considered to be great;· Consensus was not able to be reached with regard to the application of market yields; (name omitted) Valuations and (name omitted) having applied 8.5% with (name omitted) Valuers a yield of 7.5%.· With regard to the preliminary report on concrete panel distress existing at Property A, prepared by (name omitted) Building Consultants and Building Surveyors, we advise that (name omitted) Valuers had not been provided this report at the time of completing their respective assessments. (Name omitted) Valuations as in receipt of this report and having observed the defect remain of the view that a deduction to reflect the potential cost and inconvenience associated with the rectification of the defect is warranted. Acknowledging that all valuers in this instance are not building construction or structural experts and are therefore unable to certify the structural soundness of the improvements or the cost associated with rectification, we refer you to the (omitted) report of February 2009, Reference 3775 for consideration on what deduction (if any) should be applied to the market value of the subject property.· In the absence o full agreement the respective valuers advise the following revised asset value The issue here is whether Mr M’s, Mr P’s or Mr S’s valuation for the Site should be accepted noting that the Court is not bound by a choice between the three.[16][16] see para 15.2 of husband’s submissions Mr M gave evidence and was cross examined. He was engaged on behalf of the wife to value the Site. That report was annexed to his affidavit sworn 19 June 2008 and filed 3 February 2009 which valued the building and land at $1,585,000. In Mr M’s report he submitted that there were two ways of valuing the property being the Summation method (Land & Building) or the Capitalisation method (based on hypothetical rental) all of which were based on key comparative sales.

Ratio Decidendi

Legal Principle Established

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