Murray v Murray HC Hamilton CIV 2010-419-202
[2010] NZHC 1173
•29 June 2010
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2010-419-202
UNDER the Property (Relationships) Act 1976
BETWEEN ROBIN FRANCIS MURRAY Appellant
ANDRAEWYN MARGARET MURRAY Respondent
Hearing: 8 June 2010
Appearances: J H Hunter for Appellant
I T F Hikaka and K L J Simcock for Respondent
Judgment: 29 June 2010
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
29 June 2010 at 4.30 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Davidson Armstrong & Campbell, PO Box 54, Waipukurau 4242
Lee Salmon Long, PO Box 2026, Shortland Street, Auckland 1140
Copy to:
J H Hunter, William Martin Chambers, 152 Anzac Avenue, Auckland 1010G M Cameron, William Martin Chambers, 152 Anzac Avenue, Auckland 1010
MURRAY V MURRAY HC HAM CIV-2010-419-202 29 June 2010
Introduction
[1] This is an appeal against a decision given by District Court Judge Brown in the Family Court at Hamilton on 21 February 2010.
[2] In his decision the Judge held that the respondent owned 999 shares in a company called Seapro Holdings Ltd as her separate property and ordered that within 28 days of 21 January 2010 the appellant must pay the respondent the sum of
$301,100. Both of the orders that the Judge made were expressed to be interim orders under s 25(3) of the Property (Relationships) Act 1976 (“the Act”), interim in the sense that they were to apply but be taken into account in the ultimate division of the relationship property of the parties.
[3] The appeal has an overlay of complication which is most unusual. That arises from the fact that on 13 March 2009 the Judge made an order debarring Mr Murray from taking any further part in the proceedings. In the decision subject to appeal he referred to that order at [1]:
[1] The respondent, Mr Murray, was debarred from taking any further part in the proceedings on 13 March 2009. That order was made because Mr Murray refused, or declined, or failed to file an affidavit as directed by the Court. I identify Mr Murray’s decision in that regard as a careful and calculated decision.
[4] A second complication arises from the fact that, perhaps recognising the difficulties that might arise in seeking to challenge the debarring order in the context of the present appeal, Mr Murray has commenced an application for review of the decision of Judge Brown to debar him. Ms Hunter advised at the outset of the hearing that the application had been completed in draft form, and after the luncheon adjournment she advised the Court that the application has now been filed. For reasons that I will later address I consider the application for review will be the appropriate vehicle for challenging the validity of the debarring order. I record that Ms Hunter was not in a position to advise why there had been such a delay in commencing that proceeding. She stated that she had only been instructed comparatively recently and had endeavoured to draft the proceeding as quickly as possible.
[5] Although seven points on appeal were set out in the notice of appeal, Ms Hunter helpfully grouped them under three headings. They were:
a) The unlawfulness of the continual purported debarring of the appellant and thus refusal to allow him to be heard, that refusal constituting an error of law.
b)The failure to serve the Company Directors/Trustees of the Riverview Trust, which Mr Murray claimed owned the shares in Seapro Holdings Ltd.
c) Lack of proper evidential foundation for the orders made, which were in part against the weight of evidence before the Court. Further, it was claimed that the Court had wrongly acted on a report prepared by PricewaterhouseCoopers who were appointed by the Court to make an inquiry under s 38(1) of the Act. The report was acknowledged to be based on incomplete information.
[6] Counsel for Mrs Murray, Mr Hikaka, contended that the lawfulness of the debarring order made by the Family Court was not a matter properly before this Court on the appeal. In addition to arguing against the other grounds of appeal raised by Mr Murray, Mr Hikaka contended that his ongoing contempt should in fact lead him to be disqualified from being heard on the present appeal. That submission
was based on the decision of the Court of Appeal in Siemer v Stiassny & Anor[1] in
[1] Siemer v Stiassny & Anor [2009] NZCA 624
which the Court had noted, at [40], that the Court has a discretion whether to hear a contemnor who had not purged his or her contempt and that in deciding whether to hear on appeal a litigant who had been debarred the Court should adopt a flexible approach. At [43] the Court of Appeal observed:
We see this as requiring an assessment of the fairness of the process adopted in the High Court: what could fairly have been in contemplation when the contempt occurred and as it continued? In other words, what could a person who defied the Court’s orders as the appellant did expect the Court to do in the course of the proceedings in the face of his contempt? The ultimate test is the interests of justice: is there a risk of injustice if the appellant is not
heard in this Court and therefore denied the opportunity of contesting the outcome in the High Court proceedings?
[7] Here, while it is correct as Mr Hikaka submits, that Mr Murray has remained in contempt of the Family Court order debarring him from further participation in the proceeding, it cannot be said, as was the case in Siemer, that the debarring order on its face held out the prospect that by complying with previous orders and filing the necessary affidavits, Mr Murray could purge his contempt. In Siemer the debarring order was made “pending further order of the Court”. Those words were not used here. I accept Ms Hunter’s submission that Mr Murray should not be prevented from arguing his case on appeal. There would I think be a risk of injustice if he could not maintain the appeal, since on the face of it, Mr Murray can presently take no further steps in the Family Court.
The debarring order
[8] In order to put the arguments about the debarring order and its ongoing effect into proper context, it will be necessary to set out the circumstances in which that order was made. I will to do that before dealing directly with the issues raised on the appeal.
[9] Mrs Murray made an application under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980 on 11 February 2008. In her application she sought, amongst other things, that the Court should make orders determining the respective shares of the parties of the relationship property, declaring the status and ownership of property of either party not being relationship property, determining her entitlement arising out of contributions to and/or sustenance of any separate property of the respondent. Included in the application was an application for an order requiring Mr Murray to pay her maintenance, and an order dissolving the marriage. In addition, the application included an application under s 182 of the Family Proceedings Act 1980 for orders with reference to any anti-nuptial or post- nuptial settlement between the parties. Contemporaneously, Mrs Murray filed an affidavit of her assets and liabilities and a narrative affidavit.
[10] On 9 May 2008 Mr Murray filed a notice of defence. Essentially, he opposed all of the orders sought in Mrs Murray’s application even expressing the view that it was not proper or appropriate for an order to be made for dissolution of the marriage in the context of proceedings of this nature. Mr Murray did not at that stage file the affidavits contemplated by rr 392(3) and 398(2) of the Family Court Rules 2002 and on 28 May 2008 he filed an application seeking an extension of time within which to do so. That application was accompanied by an affirmation made on 22 May 2008 in which he set out some details of the relationship between the parties and his financial dealings. He noted that he had very few assets in his own name and that:
… the family wealth was held through a complex series of trusts and companies which control each unit.
[11] He listed various properties which were so held. He then noted that he had employed an in-house accountant to complete proper books of account and keep the affairs of the parties in order. He claimed that the accountant, Mr Delaney, had not properly carried out the tasks he had been required to perform. There had been problems with failures to file GST returns and Mr Murray had discovered that the financial accounts which were being kept for the various entities that had been created had either not been kept up to date or were inaccurate. As a consequence, he did not presently have any financial accounts for any of the entities upon which he could rely.
[12] The application for an extension of time was also supported by an affidavit of Mr Michael Crawford, a chartered accountant and a principle of Deloitte in Hamilton. Mr Crawford confirmed Mr Murray’s evidence about Mr Delaney’s inadequate performance. Mr Delaney had been required to complete accounts for all of the trusts and companies involved and then send them to Mr Crawford for finalisation and confirmation. Mr Delaney promised to send such accounts, but nothing ever eventuated. When he ceased to be employed it had immediately become apparent that he had not been keeping the records up to date. At paragraph 6 he said:
As a result my firm is required to now compile and complete five years sets of accounts for all entities, it being apparent that nothing has been completed or finalised since early 2000. My firm has been working with Robin Murray to get all records updated, and he has been supplying us with all missing
information as it comes to hand. I can confirm that my firm now holds the majority of appropriate records to enable the processing of financial statements and tax returns.
[13] He thought that a realistic date for the extension of time to enable accurate and up to date financial statements would be Monday 21 July 2008.
[14] Mrs Murray did not oppose Mr Murray’s application and it was granted, but by 29 September 2008 the affidavits had still not been filed and served. In the meantime an application for interim maintenance that had been filed by Mrs Murray had acquired a degree of urgency. On 10 November 2008 Judge Riddell issued a minute after hearing counsel. Mr Murray’s counsel at that stage was Mr Cameron. Judge Riddell noted his advice to her that the accounts had been prepared and sent through to him, but errors had been detected which needed to be corrected. Mr Cameron anticipated that the corrected accounts would be made available to him early the following week and he sought a further extension of the filing of the affidavits. The Judge made timetabling orders in respect of both the relationship property proceedings and the interim spousal maintenance application. In relation to the former, she directed that Mr Murray file his affidavits no later than Monday
1 December 2008. She noted that the Court would then convene a conference which counsel could attend by telephone and reserved costs on the issue of delays that had accrued to date. She indicated that from that point on costs might become “a live issue”.
[15] Next, on 15 December 2008, Mr Cameron filed a memorandum in which he sought a further extension of time to file the affidavits. The reasons were associated with Mr Cameron’s workload and in particular, the fact that he had become involved in issues arising out of the tragic crash in France of an Air New Zealand aircraft with the loss of all personnel on board. Mr Cameron noted that while in the past delays had been caused by or on behalf of Mr Murray, on this occasion the delay was not Mr Murray’s fault.
[16] On 17 December 2008 Judge Brown heard Mrs Murray’s application for an order for interim maintenance. He delivered a reserved decision on 22 December
2008. At the conclusion of the hearing, the issue of Mr Murray’s continuing delay in
respect of the documents required to be filed in the property proceedings had been raised. At [19] the Judge said:
At the conclusion of the hearing I discussed with Counsel the remedy of [sic] Mr Murray’s failure to file affidavits within the Property (Relationships) Act proceedings. Mr Latton sought an order that if the affidavits are not filed and sworn by 28 February 2009 Mr Murray would be debarred from defending the proceedings. Mr Cameron did not speak against that proposal.
[17] And at [20] the Judge concluded:
I now direct that Mr Murray’s affidavit of assets and liabilities and narrative affidavit under the Property (Relationships) Act proceedings be filed by
28 February 2009 in default of which Mr Murray will be debarred from
defending those proceedings.
[18] In a memorandum that he filed on 26 February 2009, Mr Cameron noted that although it had not been communicated to the Court, he had been informed late on the evening prior to the hearing, namely on 16 December 2008, that he had been diagnosed as suffering from a serious illness as a result of a biopsy carried out earlier that day. As a consequence he had undergone urgent surgery on Monday
22 December 2008, the date on which the reserved judgment had been delivered. He would be required to undergo a course of further therapy, but in the meantime:
All necessary financial information has now been supplied to counsel, the necessary affidavits are in draft, and it was confidently expected that they would be filed within the timeframe specified by the Court. However due to no fault of Mr Murray or his accountants but solely due to the medical demands placed upon counsel as specified above and the need to comply with two timetabling directions from the High Court it has simply not been possible to complete and file the affidavits by the 28th February.
[19] Accordingly, Mr Cameron sought an extension “of no more than one week”
for the filing and service of the documentation so that it would be filed by Friday
6 March 2009.
[20] Counsel for Mrs Murray did not oppose the extension sought, although they suggested that because Mr Murray had failed to make a payment due under the Court’s interim order for maintenance the Court should grant the extension subject to the condition that the payment be made. Judge Brown granted the extension, directing that Mr Murray’s affidavits be filed by 6 March 2009. In his minute he said “this is one of the rare circumstances where counsel’s personal circumstances
are entitled to full consideration”. He declined to link the extension to the payment of the maintenance.
[21] For reasons which were and remain unexplained, the affidavits were not filed. By a memorandum dated 10 March 2009 counsel noted that the respondent had failed to file his affidavit of assets and liabilities and narrative affidavit in the extended time allowed by the Court. They asserted that accordingly he was debarred from defending the Property (Relationships) Act proceedings by virtue of the order made by Judge Brown on 22 December 2008. The memorandum also sought appointment of a person to make an inquiry as to relevant facts under s 38 of the Act so as to provide relevant information to the Court. A formal application to that effect was filed with the memorandum.
[22] On 13 March 2009 Judge Brown issued the minute in which he debarred
Mr Murray “from further participation in these proceedings”.
[23] On 6 April 2009 the Court made the order under s 38 of the Act directing an inquiry into various matters of fact and issue in the proceedings. In particular, the report was to cover:
(i) The nature and value of all property owned by the Respondent;
(ii) The identification and value of all property owned by trusts in which the Respondent is a settlor, trustee or beneficiary;
(iii) The identification and value of all property owned by companies in which the Respondent directly or indirectly holds equity securities that carry in the aggregate 50% or more of the voting rights at a general meeting of the company;
(iv) All dispositions of relationship property made by the Respondent; (v) Such other matters as the Court thinks fit.
[24] The report when it was furnished provided, in large part, the basis on which the Court was subsequently able to make the interim orders which are subject to appeal.
First ground of appeal
[25] Against that background I now turn to the first ground of appeal. Ms Hunter constructed a careful argument designed to demonstrate that the order made debarring Mr Murray from further participation in the relationship property proceedings was an order made without jurisdiction. She submitted that the powers of a Family Court in the case of the failure to file the necessary affidavits[2] were those set out in rr 400 and 401 of the Family Court Rules. Those rules fall short of expressly authorising an order of the kind that was made here.
[2] Family Court Rules 2002, rr 392 and 298.
[26] Even if there were jurisdiction, Ms Hunter submitted that the jurisdiction should not have been exercised on the facts. She argued that the affirmation made by Mr Murray on 22 May 2008 contained much of the information that would have been included in an affidavit filed in accordance with r 392. Further relevant information had been provided in affirmations made by Mr Murray on 17 December
2008, being respectively a statement of his assets and liabilities and a statement of matters raised by him in opposition to Mrs Murray’s application for maintenance. As a consequence of these affirmations, the Court had been fully alerted to the fact that there was a major issue between the parties in relation to the ownership of the shares in Seapro Holdings Ltd.
[27] Other information had been placed in the hands of counsel and it was in effect delays attributable to counsel which had directly led to the Judge making the order debarring Mr Murray. Consequently, there was nothing in the facts that justified the Court’s conclusion that Mr Murray’s failure to file affidavits as directed by the Court was “a careful and calculating decision”.
[28] Ms Hunter referred to s 27 of the New Zealand Bill of Rights Act 1990 and various cases in which the importance of the audi alterem partem rule has been emphasised. Rules 400 and 401 showed that even in the case of a direct and flagrant breach of a warrant to attend for examination, it was intended that a respondent still be allowed to defend an application “on terms”. Because of the open-ended nature
of the order, Mr Murray had effectively been denied an opportunity to purge his contempt. In this respect, Ms Hunter drew a contrast between the order made in the present case and the order made in Ferrier Hodgson v Siemer[3] where Mr Siemer was debarred from defending the proceeding “until further of the Court”.
[3] 3 Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 July 2007
[29] The difficulties with these arguments were highlighted by Mr Hikaka, who pointed out that the debarring order had been made on 13 March 2009 as a consequence of Mr Murray’s failure to comply with an unopposed “unless” order. Further, once the order was made, there had been no appeal against it. Any appeal would now be well out of time, and no application for leave to appeal out of time has been made. Mr Hikaka referred to the fundamental principle that orders are valid
until declared otherwise.[4]
[4] A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1.
[30] He submitted that Mr Murray had been given a number of opportunities to file the documents required by the Family Court Rules, but failed to do so. The Court had heard counsel before making the unless order and it had not been opposed by counsel at the time. The extension granted on that occasion had not been complied with and a further extension had been granted in the context of counsel’s assurance that a period of only one more week, down to Friday 6 March 2009, was necessary. No explanation had been given for the fact that that deadline was not met, no further extension of time had been sought and the consequence was that the unless order took effect and the debarring order was made. Mr Hikaka pointed out that at each of the steps prior to the minute of 13 March 2009 Mr Murray had the opportunity to be heard and indeed had been heard. In the circumstances there had been no denial of rights or breach of the audi alterem partem rule.
[31] While I accept, as Ms Hunter submitted, that to debar a person from participation in proceedings that affect his interests is an extreme step, the fact of the matter was that despite the indulgences granted to him and to counsel, Mr Murray did not file affidavits which dealt in a substantial way with the matters required to be dealt with under the Family Court Rules and had not done so when the debarring order came into effect. In those circumstances, I do not consider that there has been
a denial of his rights under s 27 or, properly speaking, a breach of the audi alterem partem rule.
[32] I am satisfied also that it is not appropriate to mount a collateral attack in the present appeal on the debarring order that was made. This is, in its terms, not an appeal against that order, which was not made in the decision subject to appeal. I do not consider that this issue turns on the administrative law principles discussed in such cases as A J Burr Ltd v Blenheim Borough Council[5] on which Mr Hikaka relied. Rather, the facts that the order was made by the Family Court, has not been appealed, and that this appeal is not an appeal against the debarring order mean simply that the decision must remain in effect and binding on the appellant. An
appeal now would be well out of time and no application to extend the time for appealing has been filed. In the circumstances, whatever arguments may be advanced in relation to the jurisdiction of the Family Court to make the order must be left for argument in the context of the application for review which has belatedly been filed.
[5] A J Burr Ltd v Blenheim Borough Council above n 4.
[33] I am satisfied that the first ground of appeal must fail.
Second ground of appeal
[34] The appellant complains that it was plain from Mr Murray’s initial affidavit that he asserted that the shares in Seapro Holdings Ltd were owned by the Riverview Trust. Ms Hunter submitted that in the circumstances the Court should have considered the fact that if the respondent’s assertion was correct then the directors of Seapro Holdings Ltd and the trustees of the Riverview Trust were interested and affected by the applications before the Court. Ms Hunter submitted that they should have been given notice under s 37(1) of the Property (Relationships) Act 1976. Ms Hunter contended that ownership of the shares in Seapro Holdings Ltd was central to the substantive relationship property application and argued that it was improper for the Judge to proceed without testing the quality of the evidence by way of full hearing, with all affected parties present and able to be cross-examined.
[35] Mr Hikaka pointed out that the only director of Seapro Holdings Ltd is Mrs Murray. While, in any event, the company did not have standing in relation to a dispute as to ownership of its shares, Mrs Murray had nevertheless had notice of the proceeding and the company had taken no steps. As to the Riverview Trust, its trustees were Mr and Mrs Murray and Mr Crawford, who had sworn an affidavit in the proceedings in May 2008. That affidavit was filed in support of Mr Murray’s initial application for more time to file his affidavits. Thus the majority of the trustees were parties to the application in their personal capacity, and Mr Crawford was also aware of it. Mr Hikaka noted that s 37 of the Act did not require any particular kind of notice and argued that if notice was necessary then the Court could conclude that sufficient notice had been given.
[36] Mr Hikaka further argued that the declaration had been made after a careful consideration of the evidence and the Judge was “satisfied to a high level” that the declaration was appropriate. Finally, he submitted that any complaint about a lack of notice was a complaint properly to be advanced by the trustees of the Riverview Trust, not by the appellant in his personal capacity. The appellant could not purport to act on behalf of the trustees in bringing the present appeal. On the other hand if, collectively, “the trustees” were concerned about the matter then possibly they could advance that claim by way of an application for judicial review.
[37] I am satisfied that there is nothing in this point. Section 37(1) of the Act provides:
37 Persons entitled to be heard
(1)Before any order is made under this Act, such notice as the Court directs shall be given to any person having an interest in the property which would be affected by the order, and any such person shall be entitled to appear and to be heard in the matter as a party to the application.
[38] It is to be noted that the provision applies to persons “having an interest in the property”. In the present case, in her narrative affidavit sworn on 11 February 2008, Mrs Murray referred to a series of agreements that had been entered into by the parties in 1990 under the then Matrimonial Property Act 1976. Those agreements provided for what property was to be Mr Murray’s separate property or her separate
property. Under the terms of an agreement that was annexed to her affidavit the 999 shares in Seapro Holdings Ltd were to be her separate property.
[39] Seapro Holdings Ltd is the proprietor of a significant land holding on the fringe of Hamilton City. The house where Mrs Murray resides is on that land. Having noted those facts and referred to the agreement entered into by the parties in
1990 concerning ownership of the shares, Judge Brown said at [4] of the judgment subject to appeal:
It has been the contention of Mr Murray in correspondence before the Court and through his lawyers that the Seapro shares are not in fact Mrs Murray’s separate property, but were transferred to one of the trusts in issue, the Riverview Trust, and in that way are not available for Mrs Murray to control. There is no evidence in support of Mr Murray’s position. The highest point that contention reached in evidence is a claim in correspondence referred to in the documents that such a transfer was in contemplation. I am completely satisfied that if in fact there was documentation to support Mr Murray’s position, that documentation would have been produced. I am satisfied to a high level that in fact the shares are Mrs Murray’s separate property.
[40] As can be seen from this passage, the Court was not satisfied on the basis of the evidence that the shares in Seapro Holdings Ltd were owned by trustees of the Riverview Trust. Rather, the Judge accepted Mrs Murray’s evidence that the shares were owned by her. In the circumstances, I do not consider that s 37(1) applied, since there was no other party with an interest in the shares.
[41] Even if I am wrong in that conclusion the argument raised is artificial and simply requires notice to be given to the parties in a different capacity from that in which they were already before the Court, as well as notice to be given to Mr Crawford. Further, it is by no means likely that if a notice had been given, the trustees would have been able to take any steps in the litigation as trustees. The normal rule is that trustees must act unanimously, and I have no reason to think that the Riverview Trust was established on a different basis. It is difficult to postulate unanimity being reached in the present circumstances.
[42] The argument that failure to give any formal notice that might have been required under s 37(1) should result in setting aside the order made is without merit and I reject it. As a consequence, this second ground of appeal also fails.
Third ground of appeal
[43] In the third ground of appeal the appellant essentially attacks paragraph [4] of the Judge’s decision, which has been quoted above. In this respect, Ms Hunter relies on the fact that Mr Murray asserted that he held no property personally. In his affirmation of 22 May 2008 he stated:
Using previous experience as an insurance agent, and as a real estate agent I was very careful to keep each property separate, and throughout I have created an entity whereby each property would be held by a company, with the shares in that company being held by a trust. As such I have very little by way of assets in my own name and the family wealth is held through a complex series of trusts and companies which control each unit.
[44] Later, in his affirmation of 17 December 2008 he had not listed any interest in the shares in Seapro Holdings Ltd but had included the following as part of his statement of liabilities:
As trustee of Riverview Trust I am guarantor of its wholly owned entity
Seapro Holdings Ltd in the sum of $450,000.
[45] It is to be inferred that Riverview Trust must have, in Mr Murray’s contention, become the owner of the shares in Seapro Holdings Ltd subsequent to the agreement on which Mrs Murray relies. However, the Judge was plainly entitled to accept Mrs Murray’s evidence, based as it was on the agreement which she attached to her affidavit of 11 February 2008.
[46] Ms Hunter mounted a more substantial argument attacking the orders made for interim distribution on the basis of a lack of proper evidential foundation. In order to put her argument in context it is necessary to say a little more about the orders that were made in addition to the order declaring that the shares in Seapro Holdings Ltd are the separate property of Mrs Murray. In his judgment, the Judge noted that the property structures created by Mr Murray had been the subject of the investigation ordered by the Court under s 38 of the Act. The report indicated that at the date of separation, current account balances in favour of Mr Murray amounted to some $825,000. The assets had since diminished in value. Since the assets had been under the effective control of Mr Murray since the date of separation, the Judge
thought it would be more equitable to apply separation date values. That aspect of his decision has not been challenged.
[47] He then recorded his view that it would be inappropriate for the Court to make an order at that point in respect of the total sum of $825,000. That was because, in the s 38 report, there was reference to a debt allegedly owed by Mrs Murray totalling $222,800. Since the Court was being asked to make interim orders he considered it appropriate to exclude that amount from the potential pool to be distributed. He was in no doubt that it was appropriate to make an interim order and that it would be inequitable for Mrs Murray to have to wait until final determination of the proceedings when so much of the property was under Mr Murray’s control. He then proceeded to declare that the current account balances in favour of Mr Murray in a number of companies, with an estimated realisable value of $825,000 at separation date, were relationship property. He made a further order that the current account balances were held by Mr and Mrs Murray in equal shares and a third order that pending final determination of the relationship property proceedings $225,800 of that sum should not be considered at the present time
because of issues still outstanding.[6]
[6] It is unclear whether the Judge meant $225,800 or should have referred to $222,800, the figure mentioned earlier in the judgment. The difference is not material for present purposes.
[48] The Judge next made the interim order, which is the subject of the appeal, that Mr Murray should purchase Mrs Murray’s shares in the current account balances for the sum of $301,100. He then ordered that in any final distribution ordered by the Court the interim distribution should be taken into account in the ultimate division of the relationship property of the parties. He required Mr Murray to pay Mrs Murray the sum of $301,100 within 28 days of the date of the judgment. That sum has not been paid.
[49] The principal basis upon which Ms Hunter attacked this part of the decision was based on the terms of the PricewaterhouseCoopers’ report. She pointed out that the report itself had expressed reservations as to its completeness and accuracy. She drew attention in particular to the covering letter dated 20 October 2009 by which the report had been sent to the Registrar. In that letter the author observed:
Our report has two major restrictions. The first is that as at the date of this report we have not received answers to a number of questions identified during the course of our inquiry, which are likely to have a bearing on our conclusions. In the absence of answers to these questions it has been necessary to make a number of assumptions in preparing our report, some of which may not hold true.
[50] In the report itself, at page 3, it was said:
Our report contains a number of inherent limitations as the result of a limited availability of information and the fact that we have not been able to obtain Registered Valuations of the properties, instead having to rely on rating valuations.
[51] On the valuation point, the report noted that adopting rating valuations as the basis for valuing the various property interests represented a significant limitation as to the usefulness of the conclusions. That was so because the rating valuations might not be representative of current market valuations and valuation of the commercial properties held by one of the companies would require a complex analysis which
rating valuations were unlikely to fully consider.[7]
[7] The Court had directed that rating valuations be used for reasons set out in the Judge’s minute of
25 September 2009.
[52] Ms Hunter noted that on 18 September 2009 PricewaterhouseCoopers had written to Mr Crawford requesting information concerning the financial position of the various entities created by Mr Murray. She was critical of the fact that the report had been provided on an incomplete basis when there was, as she described it, “a line of communication” to Mr Crawford. She argued that it had then been inappropriate for the Court to act on the report, given its acknowledged limitations and without questioning its author. Effectively the Court had relied on the existence of the debarring order and had proceeded without making any inquiry into the accuracy of the report. She repeated here her argument that the trustees should have been served. She submitted that had they been served then they could have had an opportunity to test the content of the report.
[53] Notwithstanding the limitations that were expressed, the report gave a reasonably detailed examination of the property of the parties. It identified and valued the current accounts acquired during the course of the relationship. It was a
report of a kind envisaged by s 38 of the Act and there can be no doubt that the Court was entitled to rely on it.
[54] Mr Hikaka submitted that at heart the appellant’s complaint is that the Court preferred the evidence contained in the report over Mr Murray’s assertion that he held no property personally. The Court was entitled to act on the basis of the report and there was no requirement that the author be cross-examined. That, of course, could not happen because of the debarring order. To the extent that the report was based on some assumptions, Mr Hikaka pointed out that Mr Crawford had not responded to the request made by the author of the report for a response to specific questions.
[55] Ms Hunter effectively suggested that the report should not have been prepared in the absence of a response from Mr Crawford. But over a month had gone by between the making of the request and its finalisation and submission to the Court. I do not consider the criticism is valid.
[56] What is significant is that the only issues raised in relation to the report concern limitations which the author of the report himself recognised. Ms Hunter points to the fact that the report identified the dispute in relation to the shares in Seapro Holdings Ltd, and she reiterated the appellant’s assertion that he owned no property personally. However, even at this late stage, no specific criticisms are made of the detail in the report. That may, of course, simply be a reflection of the fact that Mr Murray had been debarred from participating in the proceeding in the circumstances already addressed. However, the appellant is unable to sustain the basic allegation that there was no proper evidential foundation for the Court for the orders made by the Court.
[57] The third ground of appeal must also fail.
Result and observations
[58] The appeal is dismissed.
[59] Mrs Murray is entitled to her costs calculated on a Category 2 Band B basis.
[60] I make these final observations. I was advised by Ms Hunter that Mr Murray has attached to his affidavit accompanying the application for review that has now been filed in the Court a draft affidavit of his assets and liabilities that would have been filed in the Family Court were it not for the perception that the debarring order prevented him from doing so. As the terms of the judgment under appeal make clear, there are still further matters that need to be resolved before there can be a final resolution of the property issues between the parties and the Court accepted at [10] the need to serve the trustees of the three relevant trusts that had been settled as part of the process necessary to progress the proceeding.
[61] It may be, however, as Ms Hunter submits, that so long as Mr Murray remains debarred from participation in the proceeding in the Family Court that Court there may be difficulties in taking the steps necessary to conclude the matter. So far as I can tell, there has been no attempt by Mr Murray to seek to purge his contempt and regain the right to participate in the proceeding and the Family Court would be unaware that Mr Murray has now prepared the affidavit of his assets and liabilities that he failed previously to provide. In the circumstances there may be merit in a further approach (perhaps on an agreed basis) to the Family Court about steps that may be appropriate having regard to the affidavit that has now been prepared.
[62] For the avoidance of doubt, I make it plain that those observations are not intended to have coercive effect and are clearly unnecessary to resolve the issues raised by the appeal. They merely reflect my perception that it might be desirable for the Family Court to be able to consider Mr Murray’s evidence in respect of the decisions that are yet to be made in order to resolve the relationship property issues .
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