Wilson and Westcott - [2013] FamCA 766

FAMILY COURT OF AUSTRALIA

WILSON & WESTCOTT

[2013] FamCA 766

FAMILY LAW – EVIDENCE – Expert evidence – where the husband applied for leave to use an adversarial expert – consideration of whether the interests of justice would be adversely affected by refusing the husband’s application - application dismissed.

Family Law Rules 2004(Cth) r 15.43, 15.44, 15.49, 15.54, 15.59, 16.65

Re Ronald Neville Mcgorm Ex Parte: the Co-Operative Building Society of South Australia [1989] FCA 87 (30 March 1989)
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001)
Knight & Knight [2007] FamCA 263 (14 February 2007)
Gemmell & Gemmell [2009] FamCA 29 (2 February 2009)
Dasreef Pty Ltd v Hawchar [2011] HCA 21 (22 June 2011)

APPLICANT:

Mr Wilson

RESPONDENT:

Ms Westcott

FILE NUMBER:

MLC

5835

2011

DATE DELIVERED:

10 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Berman J

HEARING DATE:

30 September 2013 and 4 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Holmes

SOLICITOR FOR THE APPLICANT:

Lander and Rogers

COUNSEL FOR THE RESPONDENT:

Mr Strum

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

That the husband’s application in a case filed 18 September 2013 be dismissed.
That the husband and wife forthwith instruct Mr B of C Accountants to update his November 2012 report of the value of the wife’s interest in the business known as “D Pty Ltd” and any other business in which the wife has an interest as director or shareholder on the following basis:-
(a)The wife provide to Mr B financial records of her said business interests as may be reasonably requested by him or by the husband;
(b)Either party may make submissions in writing to Mr B with respect to the said valuation; and
(c)The stock of “H Pty Ltd” owned by the said business interests of the wife (the wife’s stock) are to be independently valued in accordance with the terms of paragraph 3 hereof.
That the husband and the wife do forthwith engage Mr E of E Pty Ltd of F Street, Suburb G in the State of Victoria or such other suitably qualified valuer as the parties may agree, as the jointly appointed single expert to assess the current market value of the wife’s stock on the following terms:-
(a)The wife provide to Mr E (or such other agreed expert) such information and documents, and allow Mr E to carry out such inspection of the wife’s stock as Mr E may reasonably request; and
(b)The husband and the wife do share equally in the cost of the Mr E’s valuation;
(c)At the election of the husband and at his sole expense, he be permitted to instruct Mr E (or such other valuer as the parties may agree) to consider and undertake an historical valuation of the stock of “H Pty Ltd” as at 30 June 2013 and/or any earlier financial year.
That within fourteen (14) days the husband do discover to the wife and make available for inspection (subject…

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 Wilson and Westcott

Details

AGLC: Wilson and Westcott [2013] FamCA 766
Case: [2013] FamCA 766
Decision Date: 10 October 2013

CaseChat Overview and Summary

The case of *Wilson and Westcott* concerned an application by the husband, filed on 18 September 2013, which was ultimately dismissed by Berman J. The dispute involved the valuation of the wife's business interests, specifically her shareholding in "D Pty Ltd" and any other businesses in which she held a director or shareholder capacity. The court also addressed the valuation of stock held by "H Pty Ltd" and the discovery of financial documents related to both parties' shareholdings and transactions.

The primary legal issues before the court were the appropriate method for valuing the wife's business interests and her stock in "H Pty Ltd," and the extent of financial disclosure required from both parties. This included determining whether an independent valuation of the wife's stock was necessary and the terms upon which such a valuation should be conducted, as well as the scope of discovery concerning the husband's public company shareholdings and the wife's financial records. The court also considered the potential capital gains tax implications related to the J Town property.

Berman J ordered that the husband's application be dismissed. The court directed the parties to instruct an accountant to update a previous valuation report of the wife's business interests, with provisions for the wife to provide financial records and for either party to make submissions. Crucially, the parties were also ordered to jointly engage a single expert to assess the current market value of the wife's stock in "H Pty Ltd," with the husband having the option, at his own expense, to request an historical valuation. Furthermore, both parties were ordered to provide specific discovery of documents relating to their respective shareholdings and financial dealings within fourteen days. The court also allowed for the appointment of separate accountants to report on potential capital gains tax liabilities concerning the J Town property, and reserved the costs of the application.

Orders

Orders of the court

That the husband’s application in a case filed 18 September 2013 be dismissed.

That the husband and wife forthwith instruct Mr B of C Accountants to update his November 2012 report of the value of the wife’s interest in the business known as “D Pty Ltd” and any other business in which the wife has an interest as director or shareholder on the following basis:-

(a) The wife provide to Mr B financial records of her said business interests as may be reasonably requested by him or by the husband;

(b) Either party may make submissions in writing to Mr B with respect to the said valuation; and

(c) The stock of “H Pty Ltd” owned by the said business interests of the wife (the wife’s stock) are to be independently valued in accordance with the terms of paragraph 3 hereof.

That the husband and the wife do forthwith engage Mr E of E Pty Ltd of F Street, Suburb G in the State of Victoria or such other suitably qualified valuer as the parties may agree, as the jointly appointed single expert to assess the current market value of the wife’s stock on the following terms:-

(a) The wife provide to Mr E (or such other agreed expert) such information and documents, and allow Mr E to carry out such inspection of the wife’s stock as Mr E may reasonably request; and

(b) The husband and the wife do share equally in the cost of the Mr E’s valuation;

(c) At the election of the husband and at his sole expense, he be permitted to instruct Mr E (or such other valuer as the parties may agree) to consider and undertake an historical valuation of the stock of “H Pty Ltd” as at 30 June 2013 and/or any earlier financial year.

That within fourteen (14) days the husband do discover to the wife and make available for inspection (subject to the documents already having been provided or an indication given that they are not able to be provided):-

(a) Documents indicating the current value of the shareholdings held by the husband in public companies; and

(b) Documents indicating the shares in public companies bought and sold by the husband since 1 June 2007.

That within fourteen (14) days the wife do discover to the husband (subject to the documents already having been provided or an indication given that they are not able to be provided):-

(a) Each and every document set out in the letter by I Pty Ltd to Lander and Rogers dated 18 September 2013;

(b) Items 1, 4 (NAB Personal Account for the wife), 6, 7, 8,9, 10, 11, 13, 14 and 15 of the letter requesting discovery forwarded by Lander and Rogers to Kennedy Partners on 1 July 2013.

That not less than fourteen (14) days before the commencement of the final hearing, at their separate election, the husband and the wife are at liberty to appoint their own separate accountant as a single expert to report on the issues of the possible capital gains taxation payable arising from the proposals of either party in respect of the J Town property.

That the costs of the husband and the wife in respect of this application be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.