Assets of a lesser value disregarded

Assets of a lesser value disregarded

Noakes & Fadden

Assets of lesser value

  1. In Table K of his case outline the husband set out an array of assets, the identity and value of which was in issue. Proof of ownership of the particular item, proof of the value of the particular item and proof of the person in whose possession the item remained was extremely poor. As a result of poor proofs about those matters, I was left in a position where I could not be satisfied about the existence of certain assets, about the value of certain assets or about the person in whose possession the particular asset was. In relation to certain assets on Table K, the evidence was scattered among a large number of affidavits in this case so the task of even locating the evidence about any particular asset was a formidable one. Be that as it may, I have done my best to track down the evidence about assets of seemingly absurdly small values (an outdoor heater estimated to be valued at $80.00 or a print of Leonardo da Vinci’s masterpiece “Mona Lisa” said to be valued at $10.00, for example) and then to determine whether the evidence supported the sum contended for.
  2. A degree of disproportion existed in my being asked to make determinations about assets valued at absurdly small amounts. It is one thing for litigants, even unrepresented litigants, to come to court seeking a judicial determination of disputes they are unable to resolve. It is something altogether different for a litigant to require or even expect a federal judge of the Court that deals in approximately 100,000 cases each year to make determinations about an asset valued at $10.00 or $80.00 or even $1,000.00. The pressure on this Court to operate in a high-volume atmosphere is exquisite. By and large, this Court dispatches its business highly efficiently and supremely cost effectively. The public interest is well served by that approach and by that effort by this Court’s judges. But the public would be entitled to complain if it knew that the public purse was being consumed by a Commonwealth funded judge being required by litigants to make determinations about assets of ridiculously small amounts. The time spent in that activity could be better spent in hearing in determining other cases. Put differently, the time of the court is a publicly funded resource that must be used efficiently, according to the High Court decision in AON Risk Services Australia Ltd v Australian National University.[10]
  3. Here, no expert valuation evidence was adduced about the value of the assets. When the parties stated a value about any particular asset, that “value” was little more than that party’s estimation of the asset’s worth. The position did not alter in circumstances where, for example, one of the parties provided a receipt for the purchase of a particular item. The purchase price paid by that party reflected the purchase price. It did not reflect the written-down value of the asset nor even whether the asset had any value at all.
  4. In the absence of evidence in the nature of an expert valuation about the value of items in Table K of the husband’s case outline, I was unable to place any meaningful value against any of the assets there listed. For example, one item listed was a (omitted) vehicle to which the wife ascribed a value of $15,000.00 and the husband ascribed a value of $3,000.00. The husband asserted that his valuation of $3,000.00 was supported by items advertised on Internet sites. I was unable to accept either assertion of value without evidence from a motor vehicle valuer or of a person whose occupation was such that he or she was able to give evidence as an expert rather than as any other member of the public, in accordance with principles set down by the High Court of Australia in Dasreef Pty Ltd v Hawchar.[11]
  5. In respect of some assets listed in Table K, the value ascribed to them by one party or another was disputed – not on the basis of the valuation, but rather on the basis that the asset was not a matrimonial asset. An example of that was the ride-on mower. The wife asserted that the item was valued at $1,200.00. The husband stated that the item was worthless when it was received as a gift because it was broken. The husband disputed it was a matrimonial asset. In order to determine the question of the value of the ride-on mower, evidence of its value or lack of value should have been given. None was. In order to determine whether the ride-on mower was a matrimonial asset, as opposed to a gift, evidence of its status as a gift should have been given. Ordinarily, that consisted of evidence of an intention to transfer the property, acts such as physical delivery which gave effect to that intention and evidence of there being no obligation on the part of the person giving the gift to make the transfer and no obligation for the return of the gift. The law on the subject was emphatically pronounced in the decision of the Full Court of the Federal Court of Australia in Leary v Federal Commissioner of Taxation.[12]
  6. In another instance, the wife attributed a value of $2,000.00 to a collection of bricks and pavers. The husband asserted that they were valued at $400 rather than $2,000.00. He claimed he purchased the bricks and pavers then spent three days in labour stacking them from pallets. If the bricks and pavers were purchased so as to be used in works associated with an improvement to the former matrimonial home, to my mind it would not matter whether the husband or the wife expended the money as the bricks and pavers were intended to be incorporated into the improvement of the former matrimonial home. But the bricks and pavers were not incorporated into improvements on the former matrimonial home. Nor was there any evidence of any arrangement between the husband and the wife that the husband would be compensated for the days he spent unloading the bricks and pavers from pallets, still less was a rate for his labour agreed or specified.
  7. With one exception, each and every item under Table K in the husband’s case outline was disputed as to value or as to whether it was a matrimonial item. The item not disputed was an amount of $500 for the husband’s clothing, accessories or personal effects. That figure was unsubstantiated. It more closely resembled an ambit claim. I was not persuaded that it was properly due.
  8. Accordingly, I reject all items under Table K on the husband’s case outline for one or more of the following reasons –
    1. none was proved as to value;
    2. none was proved as to details of acquisition, especially date, amount, source of funds or whether the item was in fact and law a matrimonial asset or a gift;
    1. in any event, the task of ruling on the amount claimed is an unwarranted use of court time; and
    1. it is wasteful of public funds to require a federal judge to do so.


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