Vassalo and Graham

[2009] FamCA 1320

FAMILY COURT OF AUSTRALIA

VASSALO & GRAHAM [2009] FamCA 1320

FAMILY LAW – PRACTICE AND PROCEDURE – Valuations by single expert – costs met equally by the parties

APPLICANT: Ms Vassalo

RESPONDENT: Mr Graham

FILE NUMBER: ADC 2195 of 2007

DATE DELIVERED: 19 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 19 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Berman

SOLICITOR FOR THE APPLICANT: Townsends

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Nicolas & Co

Orders

1. That within 14 days of the date hereof the parties provide a joint letter of instruction to the single expert witness Mr M requesting him to update his valuation report of 20 July 2009 and provide him with the updated figures each party has from their respective accountants in relation to their respective businesses up to 30 June 2009 for that purpose.

2. That the cost of the updated valuation report of Mr M be met equally by the parties.

3. That the said updated valuation report of Mr M be filed and served by 30 November 2009.

4. That any application for discovery and production of documents by either party be filed and served by 4:00pm on 30 November 2009 and such application and any response thereto be listed for hearing at 9:00am on 7 December 2009.

5. That within 28 days of the date hereof the husband lodge with Justice Strickland’s Associate and provide a copy to the wife’s solicitors a statement setting out the evidence proposed to be led from Ms J in relation to the issues in dispute.

6. That this case be adjourned part heard to 9:00am on 7 December 2009 with a time estimate of one hour.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:       ADC 2195 of 2009

MS VASSALO

Applicant

And

MR GRAHAM

Respondent

EX TEMPORE REASONS

1. Today is the first day of this matter before me, the trial judge.  It is a matter which has had a relatively lengthy and difficult gestation period to get to today, and it is quite apparent that it is still not ready to be listed for a conclusion hearing.  But, in any event, as I have indicated to counsel, I do not have the availability to list this matter inside the next three months, at this stage anyway. Thus I am certainly not too fussed about it not being completely ready, whereas I might have been if I had been in a position to give it a listing. 

2. Today I have before me an amended balance sheet and I have taken counsel, or rather they have taken me, through that.  There are both valuation issues and discovery issues arising out of that exercise which I will come to in a moment.  The parties have each, as they were required to do, filed their questionnaires.  I have raised some issues with counsel about their respective client’s questionnaires but nothing I need to make an order about at this stage. 

3. I have case information documents filed by each party, which have been very helpful, setting out the respective orders they seek and the witnesses proposed and a brief chronology.  In relation to witnesses, there are two lay witnesses that the husband proposes to call apart from himself.  I am concerned about the need for one of those witnesses, namely Ms J.  I will come to how I propose to deal with that in a moment.

4. In relation to valuations, there is a single expert valuation provided by Mr M of 20 July 2009 which values the relevant businesses in this case.  It is agreed by the parties that there is a need to update that valuation given that there is now further information to hand, from both parties, as to the respective businesses up to 30 June 2009.  Thus, it is proposed, and I agree with this, that Mr M be requested to update his valuation with this further information.  I am told that if he gets that information in the next 14 days he can provide his updated report by the end of November.

5. There are two minor issues of valuations still outstanding.  There is a valuation that the wife has obtained of the husband’s jewellery which has not been released yet because the wife has not paid the valuer’s account.  I am told that that will be done forthwith and the valuation released and provided to the husband’s advisers, and then instructions can obviously be taken about that. 

6. Separate to that, there is a valuation obtained, by the wife, from MS of what she describes as additional personal assets of the husband.  That has been seen by the husband but, as I understand it, the husband’s general position is there has been double dipping with that valuation as compared with a valuation done by Y Auctions previously.  In any event, Ms Dickson needs to complete her instructions about that valuation before it can be taken any further.  I will be looking for those matters to either be resolved by the adjourned hearing date or at least me being told what the outstanding issue is, if any, and how that matter can be progressed so that the matter can be listed for trial. 

7. There are issues in relation to discovery, as I have mentioned.  I will not itemise those now though.  The parties are fully aware of the outstanding issues and I have noted them in my bench book, as I have been taken through the balance sheet, and obviously they are on the transcript.  What is proposed about that, and I agree with this, is that the parties will now attend to providing the requested discovery and production.  I will not make any order about that because, of course, the parties have an ongoing obligation to provide discovery.  However, what I will do is provide a timeframe for any application to be filed in relation to discovery and that timeframe is six weeks.

8. In terms of, then, the progress of this case coincidentally, six weeks takes us to the time that Mr M’s report will be available and thus I propose to have a continuation hearing in this matter early December and specifically on 7 December.  I cannot guarantee it but I would be surprised if, depending on the state of the matter at that stage, I would not be in a position to give a date for trial and obviously make orders for the filing of affidavits for the purposes of that trial.  Anyway, we will wait and see what happens. 

I certify that the preceding 8 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 October 2009.

Associate