Wheeler & Loggins
[2023] FedCFamC1F 66
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wheeler & Loggins [2023] FedCFamC1F 66
File number(s): SYC 2273 of 2022 Judgment of: HARPER J Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – PROPERTY – Valuations – Where the husband and his family have interests in complex network of companies and trusts – Where companies and trusts own various businesses and real property – Dispute over which assets are to be valued – Wife asserts that husband has an interest in a corporate group – Where composition of the group is uncertain – Where husband is the object of several discretionary trusts – Issue of valuation of personal property in the form of equitable choses in action – Where properties and businesses sought to be valued are owned and operated by third parties who have not been given the opportunity to be heard – Where valuation would require consent of third parties – Orders for valuation of disputed entities and properties refused. Legislation: Evidence Act 1995 (Cth) s 69
Family Law Act 1975 (Cth) s 79
Cases cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Conrad & Conrad [2019] FamCA 106
Dovgan & Dovgan [2021] FamCA 306
Guest v Federal Commissioner of Taxation (2007) 65 ATR 815; [2007] FCA 193
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Harris & Dewell (2018) FLC 93-839; [2018] FamCAFC 94
Kelly and Kelly (No. 2) (1981) FLC 91-108; [1981] FamCA 78
Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56
Public Trustee v Smith (2008) 1 ASTLR 488; [2008] NSWSC 397
Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52
Tomaras & Tomaras (2021) 64 Fam LR 237; [2021] FedCFamC1A 82
Woodcock & Woodcock (2021) 64 Fam LR 489; [2021] FedCFamC1F 88
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 2 February 2023 Place: Sydney Counsel for the Applicant: Ms Cantrall Solicitor for the Applicant: Pearson Emerson Counsel for the Respondent: Mr Fernon SC Solicitor for the Respondent: Yates Beaggi Lawyers ORDERS
SYC 2273 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WHEELER
Applicant
AND: MR LOGGINS
Respondent
order made by:
HARPER J
DATE OF ORDER:
17 February 2023
THE COURT ORDERS THAT:
1.The document entitled “List of agreed properties and interests to be valued” submitted by the parties on 16 February 2023 be marked Exhibit “A”.
2.The parties shall confer and jointly identify a single expert, or, if necessary, experts, to be appointed pursuant to r 7.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), to value the real property, business, corporations and trusts set forth in Schedule 1 to this judgment, as follows:
(a)By agreement, and failing agreement, within seven days of this order, the Applicant Wife (“the wife”) shall nominate no less than three suitably qualified and independent valuers to the Respondent Husband’s (“the husband’s”) legal representative and the husband shall, within a further seven days, select one valuer, or, if necessary, two valuers, from that list and advise the wife’s legal representative of his nomination/s in writing;
(b)Within seven days of the parties identifying and agreeing upon any single joint expert, the wife is to:
(i)prepare a draft Minute of Order by consent stating that pursuant to r 7.03 of the Rules, the agreed expert(s) be appointed to inquire into and report on valuation in accordance with this order; and
(ii)forward the proposed Minute of Order by consent to my Associate for the orders to be made in chambers.
(c)Within 14 days of any valuer being appointed in accordance with this order, the parties shall do all things necessary to provide joint written instructions to such valuer; and
(d)The husband shall pay, in the first instance, as and when they fall due, all costs of valuation undertaken in accordance with this order, subject to adjustment at final hearing, NOTING it is the Court’s intention that the parties shall bear the costs of valuation equally.
3.The wife’s Application in a Proceeding filed on 16 September 2022 be otherwise dismissed, with no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wheeler & Loggins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are financial proceedings between the Applicant Wife (“the wife”) and the Respondent Husband (“the husband”).
At present, the wife and the husband are the only parties to the litigation. Both seek property adjustment orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). It is clear that the husband has financial interests located in a complex structure of corporations and trusts, which are associated with his family, the Loggins family. The value of the husband’s interest is very large, according to the wife, possibly up to $70 million, although the husband does not agree the value is as great.
On 16 September 2022, the wife filed an Application in a Proceeding seeking a range of orders, including spousal maintenance, partial property settlement, and for the valuation of a number of companies, trusts, and parcels of real estate.
On 2 February 2023, the wife’s application was listed for hearing. The parties considerably narrowed the issues for judicial determination. It was agreed that the debate about spousal maintenance and partial property settlement was resolved by the orders of a senior judicial registrar made on 21 October 2022. The parties accepted that those orders did not require any interference by me and could simply continue pending further order.
That left for determination the dispute about which companies, trusts, or parcels of real estate should be the subject of orders for single expert valuation.
There was a large degree of consensus about which real estate, companies and trusts should be valued. The Court required the parties to set out the agreed items for valuation in schedule. This is reproduced as Schedule 1 to this judgment.
That left in dispute whether there should be valuation of the following businesses or parcels of real estate:
(a)B Venue;
(b)C Venue;
(c)D Venue;
(d)E Venue;
(e)F Venue;
(f)G Venue;
(g)H Venue;
(h)Suburb J Extra land;
(i)Suburb K land;
(j)Suburb L land;
(k)Suburb N land; and
(l)P Region land.
(“the disputed items”)
It can be seen that this list can be easily broken into two groups. The first group is comprised of venues (items 7(a) to (g)), while the second group is comprised of parcels of real estate (items 7(h) to (l)).
It was also common ground in relation to the parcels of real estate that in each case, the registered proprietor of the legal estate was not the husband. It was not asserted by the wife that the husband enjoyed any proprietary interest in those properties of an equitable or other nature.
It is worth emphasising that the discretion in s 79 is a discretion to alter existing property interests. These are identified at trial according to ordinary common law and equitable principles: Stanford & Stanford (2012) 247 CLR 108 (“Stanford”) at [37]. Then, the identification of the “financial resources” of each of the parties is also necessary (s 79(4)(e)).
The wife relied upon the following documents:
(a)Case Outline filed on 1 February 2023;
(b)Application in a Proceeding filed on 16 September 2022;
(c)Affidavit filed on 16 September 2022; and
(d)Financial Statement filed on 16 September 2022.
The husband relied upon the following documents:
(a)Case Outline filed on 1 February 2023;
(b)Financial Statement filed on 10 June 2022; and
(c)Affidavit filed on 25 November 2022.
In large measure, the wife’s case, as currently formulated, relies upon the factual contention that there exists a complex corporate and trust structure which is sufficiently interrelated to be described as a “group”. The wife’s case outline contained an agreed aide-mémoire with a diagram illustrating this complex structure into which she claims the husband’s various property interests fall. It was undisputed that other members of the husband’s family held interests in this corporate structure.
The wife contends that the husband owns a substantial percentage interest in the group, which she calls the “[Q Group]” in her affidavit. In summary form, she explained her claims at paragraph 17:
I contend that [Mr Loggins’] interest in the [Q Group] is approximately $70 million+ net, based on valuations prepared for present negotiations to pay out [Mr Loggins’] sister [Ms R] for her 25% share as she exits the [Q Group]. I contend that [Mr Loggins’] interest in the entirety of the [Q Group] is one third (assuming [Ms R’s] exit has been completed and otherwise a ¼ interest). I discuss further herein my understanding of [Ms R’s] exit from the [Q Group].
The wife exhibited to her affidavit a schedule (MW-5), which she claimed “to have been completed by members of the [Loggins] family when discussing [Ms R’s] exit from the [Loggins] Group”. This schedule includes items 7(a) to (g),except 7(d). The schedule refers to “[E Venue] Land”, not a business called “[E Venue]”.
It can be seen that it is an important element of the wife’s argument that there had been a valuation undertaken of a number of the disputed items in 2021 for the purposes of a proposed “exit” by the husband’s sister from her interests in the “[Q Group]”. There was no evidence that this had actually happened. But, from the fact of this proposal, the wife invited me to infer that if the disputed businesses were relevant to the sister’s interest in the “[Q Group]”, they must be relevant to the interests of the husband in the same group.
In my view, that does not follow. A fundamental problem lies in the uncertainty of the reference to “[Q Group]”. The orders sought by the wife expose the nature of the problem. They suggested a corporate group with a somewhat different composition to the “[Q Group]” referred to at paragraph 17 of the wife’s affidavit, by reference to the schedule. In the wife’s proposed orders, there is given the following definition of the “[Loggins Venue Group]”:
“[Loggins Venue Group]" means [S2 Trust, S1 Pty Ltd, T Pty Ltd, U Trust, V Trust, W Trust, Y Trust, Z Trust] and any and all underlying and associated entities including but not limited to [Q Pty Ltd, AA Trust, AB Trust, AC1 Trust, AD Trust, AE1 Trust, AE2 Trust, AF Trust, AG1 Trust, AG2 Trust, AH Trust, AI Pty Ltd, AJ Pty Ltd, AK Pty Ltd, and AL Pty Ltd];
This definition of Loggins Venue Group does not refer, at least explicitly, to any of the disputed items. It suggests that “[Q Group]” and “[Loggins Venue Group]” are not co-extensive, even if they overlap. The point is that the wife’s own material discloses imprecision and some inconsistency about the identity of the companies, trusts, or businesses comprising the group in which she claims the husband enjoys a one third interest, and which therefore should be valued.
The problem is further illustrated by other evidence. In support of her contention that the husband owned a large percentage interest in “[Q Group]”, the wife tendered an internal Commonwealth Bank of Australia (“CBA”) memorandum, possibly authored by someone called Mr AM. The document opens with the paragraph:
[Mr Loggins] (42) and his family collectively own and operate 12 [venues] located within the Sydney metropolitan area. [Mr Loggins] is effectively the group s CEO and oversees strategic projects and finance.
[Mr Loggins’] cashflow is generated via two corporate entities, [S1 Pty Ltd] and [S2 Pty Ltd] atft [S2 Trust].
On its face, the document can be taken to be a business record, satisfying the criteria in s 69 of the Evidence Act 1995 (Cth), being a document forming part of the records of an identifiable business for the purposes of the business. It is open to infer that the assertion of a 20 per cent ownership came from the husband, in which case the document was authored on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. Business records are treated as having an inherent likelihood of reliability which outweighs the common law’s aversion to hearsay evidence where the maker of a statement cannot be tested by cross-examination: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at [6]–[7]; Guest v Federal Commissioner of Taxation (2007) 65 ATR 815 at [25].
However, even assuming the bank memorandum has the characteristics of a business record, it does not take the wife’s argument very far. First, the only mention in the bank memorandum to a percentage beneficial ownership by the husband was a “20% beneficial interest” in respect of “[Q]”. The problem again lies in the vagueness of the reference to “[Q]”. It could be the same as the wife’s “[Q Group]” or her definition of “[Loggins Venue Group]”, or something else understood within the CBA, even if all these possibilities overlap. Even so, it is not at all clear that “[Q]” in the memorandum includes the disputed items. Secondly, the wife also pointed to the factual assertion in the document that “[Mr Loggins] is effectively the group’s CEO and oversees strategic projects and finance” as supporting her argument for a valuation of the disputed items. But, even if the husband is “effectively” CEO of the “group”, it does not follow that he should be held to have any legal or equitable interest in the disputed items because he holds such a senior management position. Thirdly, the husband himself gave evidence about his interests in S1 Pty Ltd and S2 Holdings Pty Ltd. Although his income is generated through these entities, they have no obvious interest in, or direct connection to, any of the disputed items.
It may be that there exists an assemblage of entities and businesses associated with the Loggins family which are sufficiently commercially federated to be accurately described as a group, as the wife contends. The present evidence does not allow any clear conclusion to be formed at this stage. What the evidence does show, for interlocutory purposes, is that some entities are most directly associated with the husband’s siblings, and have no obvious connection to the disputed items. For example, the husband gave evidence that Y Pty Limited is the trustee of the Y Trust, which is his brother’s family trust. The husband has no interest in the trustee and is but one discretionary object in the trust’s class of beneficiaries. Similarly, Z Pty Limited is the trustee of the Z Trust, which is the husband’s sister’s family trust. The only connection the husband has to this trust is again as a discretionary object. Y Trust and Z Trust are included in the wife’s definition of “[Loggins Venue Group]”. However, neither of these entities were shown to have any relationship to the disputed items. In particular, the Z Trust does not appear to be associated with any of the disputed items which were valued for the purposes of the sister’s “exit” from the “[Q Group]”, despite the fact it appears to be the sister’s family trust.
To repeat, the essential question here, which helps determine what property should be valued, is what legal and equitable property interests, according to ordinary legal and equitable principles, are owned by the wife and husband. Asserting a percentage interests in a large group of amorphously defined entities, in which third parties to the marriage also clearly have interests, is not very helpful in identifying the parties’ precise legal and equitable property. It was clear on the wife’s own argument that the only way in which a conclusion could be reached about an overall percentage interest in an asserted Loggins group is by a consideration of the specific interests owned or enjoyed by an individual through a range of identified trusts or corporations. What needs to be demonstrated with a much greater degree of particularity is what falls within the alleged “[Q Group]” and what a given family member’s specific interests are. It may be that the inclusion of the disputed items in the schedule prepared for the sister’s “exit” came about for reasons which would not be equally applicable to the husband.
The other basis upon which the wife mounted her argument was that the disputed items should be, at least on a prima facie basis, viewed as a financial resource of the husband. It has long been held that a “financial resource” in the context of property adjustment proceedings means “a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”: Kelly and Kelly (No. 2) (1981) FLC 91-108 (“Kelly”) at 76,803.
In support of that contention, she pointed to a letter of offer from the ANZ Bank dated 3 August 2022. This letter was addressed to “The Directors, [Loggins Investments Pty Ltd]”. The directors of Loggins Investments Pty Ltd do not include the husband. However, the wife pointed to the fact that the “borrower” in the accompanying facility letter was defined to include a range of corporations, which included AN Pty Ltd (the owner of the C Venue), AO Pty Ltd (the owner of D Venue and E Venue), and Loggins Investments Pty Ltd (the owner of the F Venue), on the one hand, and AH Pty Ltd and AG Pty Ltd, of which the husband was conceded to be at least a director, on the other. Loggins Investments Pty Ltd is the trustee of the U Trust, discussed below.
In short, the wife’s contention was that at least some of the disputed businesses, which were owned by corporations such as AP Pty Ltd, AO Pty Ltd, and Loggins Investments Pty Ltd, were also borrowers under the facility terms, and therefore provided support for loan moneys which ultimately found their way into the hands of the husband. In that way, the wife contended those entities and their underlying businesses constituted a financial resource of the husband.
There may be some force in this argument, but in my view it does not presently justify valuation of the disputed items. They may indirectly constitute a financial resource of the husband, but on no view of the evidence can it be said the assets of the disputed items are a direct financial resource of the husband, at least at this stage.
B Venue and G Venue raise additional considerations. The owners are discretionary trusts. B Venue is owned by AP Pty Ltd. AL Pty Ltd is the sole shareholder of AP Pty Ltd. Loggins Investments Pty Ltd is the sole shareholder of AL Pty Ltd. It was common ground that the husband was not a director or shareholder in any of these companies and has never received any distribution from any of them. Loggins Investments is the trustee of the U Trust. It was common ground that the husband was not a director or shareholder in any of these companies, nor is he or ever has been the appointor of the U Trust. It was common ground that the husband was a discretionary object of this trust in a class of beneficiaries. However, he has never received any income or capital distribution from the trust.
Similarly, the G Venue is owned by V Pty Ltd, which is the trustee of the V Trust. Again the husband is neither a director nor shareholder of V Pty Ltd. While he is a discretionary object, he is not appointor of the trust, controller of the trustee, nor has he ever received any distribution of income or capital from the trust.
In relation to both the U and V Trusts, the husband accepted that, as a discretionary object of these non-exhaustive discretionary trusts, he owns personal property in the form of equitable choses in action, being the right to compel the trustee to consider whether or not to make a distribution to him or her and a right to the proper administration of the trust; this property falls within the definition of “property” in s 4(1) of the Act and the wording “the property of the parties to the marriage or either of them” in s 79: Kennon v Spry (2008) 238 CLR 366 (“Kennon”) at [48], [74]–[75], [79], [126], and [126].
These equitable choses in action have historically raised some difficult questions, both as to their character as property and for the purpose of valuation. But in my view, since Stanford and Kennon, their status as property requiring identification for the purposes of s 79, cannot now be doubted. Any issue of alienability, and the ultimate just and equitable division of the parties’ property pursuant to s 79 are separate questions which do not deny the need to identify the choses in action as property: see also the extensive discussion of authority by Watts J in Tomaras & Tomaras (2021) 64 Fam LR 237 at [171]–[250], especially [189]–[195].
In this regard, in Dovgan & Dovgan [2021] FamCA 306, I made the following observations, to which I adhere, about a discretionary object’s relationship to the underlying trust assets and the question of valuing their equitable choses in action:
299. It is usually, and correctly, said an individual object of an exhaustive or non-exhaustive discretionary trust cannot claim any part of the trust fund or its income because they are not entitled to any interest in it unless and until the trustees exercise their discretion in their favour; in that sense discretionary objects are in competition with each other for due consideration and “what the trustees give to one is his alone”: [Richstar Enterprises Pty Ltd and Others; Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814; (2006) 153 FCR 509] at 517 citing Gartside v IRC [1986] AC 553 at 617.
300. … The difficulty of valuing a discretionary object’s equitable chose in action is well known. In R & I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1992) 10 WAR 59 at 79 Owen J held that the expectancy (or spes) which a beneficiary has that the trustee might appoint capital of the trust fund in his or her favour lacked the requisite aspect of ‘value’ to enable it to be regarded as an asset. In Richstar at [28] French said this view had general application and at [36] he doubted that the beneficiary of a non-exhaustive discretionary trust enjoyed anything other than an expectancy, rather than a contingent proprietary interest in trust assets. In the context of Part VIIIAA, in Simmons at [106] Watt J was satisfied each object of the relevant discretionary trust had no present entitlement to a proprietary interest in the assets of the trust; and therefore suffered no “pecuniary loss from the orders of the Court under Part VIIIAA. But, despite the statement about value from Owen J in R & I Bank, in Kennon French CJ said at [78]: “a valuation might not be beyond the actuarial arts in relation to the right to due consideration”. In Simmons at [122] after referring to Kennon, Watt J accepted the possibility of such a valuation saying, “the existence of a longstanding scheme of distributions to beneficiaries such as the husband and his siblings provides a useful starting point in the valuation process”. This allows for the possibility that a discretionary object’s equitable chose in action, including the “spes” or expectancy to due consideration, has value and not only can, but certainly after Kennon, should be regarded as an asset. Such a valuation is analogous to the valuation of a chance and looks to the possibility that after due consideration, the trustee’s discretion will be exercised in an object’s favour. …
See also Woodcock & Woodcock (2021) 64 Fam LR 489 at [78]–[81].
In the context of possibly valuing a discretionary object’s equitable choses in action, the authorities have therefore focussed on a past pattern of distribution in favour of the discretionary object, or in other words, a pattern of exercise of discretion to the benefit of a particular discretionary object. The underlying trust assets, on the other hand, could bear at best no more than indirectly upon the value, if any, of those choses in action: Dovgan at [301].
It was the tenor of the husband’s argument that this personal property either could not be valued or had no value. Either contention may be correct, but it is unnecessary to express a view for present purposes. The wife does not seek to value any equitable chose in action owned by the husband. She made no argument that in the circumstances of this case such a valuation could be justified by reference to any past pattern of distributions from either the U or V Trusts to the husband, in the exercise of the trustees’ discretion. Indeed, as pointed out, the evidence showed there have never been such distributions. There seems to be an absence of a basis to value the choses in action and thus any need for such a valuation. Rather, the wife seeks a valuation of underlying trust assets, specifically, B Venue and G Venue. The wife made no submission to the effect that the value of these trust assets could affect any valuation of the husband’s equitable choses in action in the circumstances of this case.
There is also no basis to conclude, at an interlocutory stage, that any assets of either the U or the V Trusts were arguably property “of” the husband, because, for example, he controlled the trustee and held the power of appointment: see Public Trustee v Smith (2008) 1 ASTLR 488; Harris & Dewell (2018) FLC 93-839 at [53]; Conrad & Conrad [2019] FamCA 106 at [77].
Similar considerations lead to the conclusion that in the circumstances of this case, the husband’s equitable choses in action in the U and V Trusts may not be properly understood as a financial resource. In Hall v Hall (2016) 257 CLR 490, the High Court said, approving the definition in Kelly (above):
54. …The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.
55.Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
The present evidence, even for interlocutory purposes, does not establish objectively that the husband has a reasonable expectation that the relevant trustee’s discretion will be exercised in his favour or would be forthcoming if he called for it.
Accordingly, I am not satisfied that the wife has demonstrated, for the purposes of the present application, that there is sufficient reason to conclude that the husband has an interest in any of the disputed items which may be capable of specific valuation so as to ultimately form part of the balance sheet at final hearing. Similarly, I am not satisfied the wife has demonstrated any of the disputed items can be relevantly understood as a financial resource of the husband. For completeness I also note that, at present, the wife makes no claim to relief under Pt VIIIAA of the Act, such as orders pursuant to s 90AE, which gives the Court powers to make orders binding third parties.
Practical considerations also militate against ordering the valuation of the disputed items. It was common ground that, among the disputed items, the venues were operating businesses, a valuation of which would require some consideration of their turnover and potentially sensitive commercial information. It was undisputed that they are owned and operated by either corporate entities, or in the case of H Venue, by Mr AQ, who is the father of the husband. It was conceded by the wife that the husband was neither a director nor shareholder of any of the corporate entities that were the proprietors of the disputed items, although the directors of some were his parents, Mr AQ and Ms AR.
Thus, as the husband pointed out, irrespective of whether or not any of the disputed items are ultimately held to be a financial resource of the husband, they are owned and operated by third parties. The wife did not grapple clearly with this reality in her submissions, but it was conceded by her that before any valuation of operating businesses could be undertaken, especially where turnover would have to be assessed and potentially commercially sensitive information given to a valuer, the cooperation of third-party owners would be essential. The same difficulty affects the proposed valuation of parcels of real estate. That could only take place if the registered proprietors were prepared to allow access for the purpose of the valuation to be undertaken.
I have no idea as to whether such cooperation would be forthcoming. None of those entities have been invited to give a view about valuation or to be heard from by the Court. I take account of the husband’s submission that in the event orders were made for the valuation of these third-party interests, the prospect of any cooperation would automatically be reduced.
Another consideration which weighs against the valuation order sought by the wife is the cost. It was common ground that the cost of agreed valuations will be in excess of $200,000. Any additional valuation of the disputed items would likely take the cost to above $300,000. If the disputed businesses are excluded from the single expert valuation process, the cost would be reduced.
The husband was prepared to accede to an order that he pay the costs of valuation of the agreed businesses and entities in the first instance, subject to an adjustment of half that cost against the wife’s ultimate entitlement as found by the Court. It was the wife’s position that she lacked the resources to fund the cost of any part of the valuation process. The wife was clear in her submissions that she could not herself fund the cost of an adversarial expert in relation to the disputed businesses and sought that they be included, therefore, in the valuation conducted by the single expert. It was her position that all valuations should be paid for by the husband in the first instance. I am not persuaded that it is appropriate at this stage to order the single expert to value the disputed businesses at the cost of the husband.
Accordingly, I do not propose to make orders for the valuation of the disputed items at this stage. After the agreed valuation process is undertaken, if the single expert identifies the need to engage in valuation of further third-party assets, it is possible that the question may need to be revisited, and the result of this application should not be taken as precluding a further application in the event information of that nature comes to light.
Accordingly, I will make orders for valuation of the property interests which the parties have agreed should be valued, but excluding the disputed items the subject of these reasons.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 17 February 2023
SCHEDULE 1
WHEELER & LOGGINS – SYC 2273/2022
List of the agreed properties and interests to be valued:
italics Indicates gross value of asset is presently agreed as between parties. The de facto wife maintains her right to seek updating valuations if required.
Asset 1 Real Property Owner 1.1 AT Street, Suburb AU Mr Loggins 100% 1.2 AV Street, Suburb AW: Mr Loggins 100% 1.3 AX Street, AY Region Mr Loggins 25% 2 Hotels/Landholdings Owner 2.1 AZ Venue* (Leasehold) T Pty Ltd 2.2 BA Venue & Shops* and the BA Land * (Freehold) AC1 Trust
& AC2 Trust2.3 BB Venue* (Leasehold) AD Trust 2.4 BC Venue* (Freehold) AF Trust 2.5 BD Venue & Shopping Centre* (Freehold) AG1 Trust
& AG2 Trust2.6 BE Venue* (Freehold) AE1 Trust
& AE2 Trust2.7 BF Venue (Leasehold) AK Pty Ltd 2.8 BG Venue (Leasehold) AB Trust 2.9 BH Venue (Leasehold) AA Trust 2.10 BI Venue (Freehold) AJ Pty Ltd 2.11 BJ Venue * (Freehold) AH Trust 2.12 BK Venue * (Freehold) AH Trust 2.13 BL Venue* (Freehold) AH Trust 2.14 BM Venue* (Freehold) AS Trust 3. Companies, Trusts, Entities 3.1 S2 Pty Ltd 3.2 S3 Trust 3.3 Q Pty Ltd 3.4 AA Pty Ltd 3.5 AA Trust 3.6 AB Pty Ltd 3.7 AB Trust 3.8 AH Pty Ltd 3.9 AH Trust 3.10 AS Pty Ltd 3.11 AS Trust 3.12 AC1 Pty Ltd 3.13 AC1 Trust 3.14 AC2 Pty Ltd 3.15 AC2 Trust 3.16 AD Trust 3.17 AE1 Pty Ltd 3.18 AE1 Trust 3.19 AE2 Pty Ltd 3.20 AE2 Trust 3.21 AF Pty Ltd 3.22 AF Trust 3.23 AG Pty Ltd 3.24 AG1 Trust 3.25 AG2 Pty Ltd 3.26 AG2 Trust 3.27 S1 Pty Ltd 3.28 AK Pty Ltd 3.29 AJ Pty Ltd 3.30 AI Pty Ltd 3.31 T Pty Ltd 3.32 Ms Wheeler Family Trust 3.33 BN Pty Ltd
2
9
0