Treloar and Treloar

[2007] FamCA 869

FAMILY COURT OF AUSTRALIA

TRELOAR & TRELOAR [2007] FamCA 869

FAMILY LAW – PROPERTY SETTLEMENT – Pending judgment - Application by wife seeking order appointing single expert to re-value former matrimonial home before judgment delivered – Application dismissed.

APPLICANT: MRS TRELOAR

RESPONDENT: MR TRELOAR

FILE NUMBER: ADF 1860 of 2005

DATE DELIVERED: 7 August 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 7 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Barbara D Rowe

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Cardone & Associates

Orders

1. That the Application in a Case filed by the wife on 2 August 2007 be dismissed and removed from the active pending cases list.

2. That the question of the husband’s costs of this application be reserved to the time of delivery of my judgment.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Treloar and Treloar.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1860 of 2005

MRS TRELOAR

Applicant

And

MR TRELOAR

Respondent

EX TEMPORE REASONS

1. I have before me an Application in a Case filed on 2 August 2007 by the wife in which she seeks the appointment of a single expert to value the former matrimonial home situated at … G.  There is an affidavit in support of that application which tells me that the valuation, which was agreed for the purposes of the trial in this matter, was in fact an appraisal obtained by the husband in January 2006.

2. The wife's solicitor, whose affidavit it is that supports this application, says that her client has informed her that the value of the home has increased significantly over the period of 18 months since that first appraisal.  As a result of that the wife has obtained an updated appraisal, which is annexed to this affidavit.  It is a somewhat confusing appraisal in that although it is dated 30 July 2007, it refers to the author being invited to view and supply an appraisal in December 2006.  There is no indication as to when inspection took place or when any work was done to produce the appraisal.  I assume though, it is intended to indicate that, as at the date of the letter, which is Monday, 30 July 2007 the author believes that the current real estate market value is $350,000.00.

3. The husband opposes this application and quite rightly points out that the evidence that is presented in support of it is completely inadequate.  I accept Mr Richards' submissions that it is not a matter of looking at any increase in value, if there is such, from January 2006 until now but rather from February 2007 until now.  Thus, the wife might very well be able to successfully re-open this case if there is evidence of an increase in value between February 2007 and now, February 2007 being the date when the trial was completed and judgment was reserved.  The point is that at that time the parties were still in agreement that the value to be used was $290,000.00.

4. Of course, it is also not appropriate to look at an increase in value from $290,000.00, it is necessary to look at the value of the property as at February 2007 and compare that with the value now.  Whether that evidence can be obtained or indeed whether that evidence is still sufficient, I am not making any comment on, I am simply indicating and highlighting the lack of evidence that is currently before me to allow this case to be re-opened in the way that the wife wants.

5. On that basis I propose to dismiss the wife’s application.  I have indicated to both counsel, though, that I am hopeful of delivering my reasons for judgment in this matter late next week.  Ms Ross has said that she will take some instructions about filing a further application with further evidence if that is able to be obtained.  In the meantime if that happens then I will deal with it.  If not, I will simply deliver my judgment as I have indicated.

I certify that the preceding
5 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 7^th day of August 2007.

……………………………………….
Associate