Lahiri & Saha (No 10)
[2024] FedCFamC1F 110
•4 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lahiri & Saha (No 10) [2024] FedCFamC1F 110
File number: BRC 8518 of 2020 Judgment of: CAMPTON J Date of judgment: 4 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Where the wife seeks a stay of orders enforcing an order for vacant possession of a real property in favour of the second respondent as the wife’s trustee in bankruptcy pending an appeal of those orders –Where vacant possession was first ordered over a year ago and the time for the wife to provide vacant possession of the real property has been extended twice – Where the wife’s challenge to those orders on appeal has been dismissed – Where there is no merit in the grounds of appeal of the wife – Where the second respondent agrees to an undertaking not to exchange contracts for the sale of the home until the completion of the appeal hearing – Application in a Proceeding dismissed – Wife ordered to pay the second respondents costs in a fixed sum. Legislation: Bankruptcy Act 1966 (Cth) ss 120 and 139ZQ
Family Law Act 1975 (Cth) ss 79 and 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Uniform Civil Procedure Rules 2005 (NSW)
Cases cited: Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; [1986] HCA 84
Lahiri & Saha (No 8) [2023] FedCFamC1F 1000
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Saha & Lahiri (No 3) [2023] FedCFamC1A 144
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 1 March 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Litigant in person Counsel for the Second Respondent: Mr Robinson Solicitor for the Second Respondent: Stacks Law Firm ORDERS
BRC 8518 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAHA
Applicant
AND: MR LAHIRI
First Respondent
MR FELTOS
Second Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 26 February 2024 is dismissed.
2.The applicant wife pay the second respondent trustees cost fixed in the sum of $5,000 within 28 days of the date of this order.
THE COURT NOTES THAT:
3.The second respondent trustee undertakes not to exchange contracts for sale of B Street, Suburb C NSW, prior to 4.00pm on 22 March 2024.
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 Lahiri & Saha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine an Application in a Proceeding of Ms Saha (“the wife”) filed 26 February 2024 for a stay of orders made 22 November 2023 pending the hearing by the Appellate Division of the Court of her Application for leave to Appeal from, and if leave is granted, appeal from, those orders.
The wife’s Amended Notice of Appeal filed 9 February 2024 is listed for hearing before the Appellate Division on 22 March 2024. There is some suggestion that the wife may seek to adjourn that hearing.
Mr Lahiri (“the husband”) and Mr Feltos, the second respondent, (“the wife’s bankruptcy trustee”) oppose the stay.
For the reasons that follow, the wife’s application for a stay will be dismissed.
BACKGROUND
These reasons assume familiarity with Lahiri & Saha (No 8) [2023] FedCFamC1F 1000 (“Lahiri & Saha (No 8)”). Those reasons identify:
(a)The wife currently being an undischarged bankrupt;
(b)The labyrinthine history of the litigation in this Court and the Appellate Division of the Court, including the repeated failures of the wife to challenge at first instance and on appeal a notice under s 139ZQ(1) Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) issued on 4 June 2020 by the wife’s bankruptcy trustee. That notice required D Pty Ltd (who was previously the third respondent) to pay to the trustee the sum of $853,875, being the value of the interest in the B Street, Suburb C NSW (“the Suburb C property”) transferred to D Pty Ltd, such transfer being void against the trustee, pursuant to s 120(1) of the Bankruptcy Act. It is that notice, and the orders made as a consequence of and by way of its enforcement, that the wife is now again challenging by way of her current appeal.
The husband and wife were married in 2000. They separated on 21 February 2019. An order for divorce came into effect in mid-2021. There is one child of the marriage who is now an adult.
By way of context, the orders subject to appeal made are:
2.The Application in a Proceeding of the wife filed on 28 September 2023 and sealed on 4 October 2023 is dismissed.
Vacant possession
3.The time for the wife's compliance with Order 1 made 13 February 2023 (‘the 13 February 2023 Orders’) is extended until 7 December 2023, that is the time for the wife to give vacant possession of the property located at [B Street, Suburb C NSW] 2290 and described in Certificate of Title Volume […] Folio […] ("the [Suburb C Property]") to the second respondent trustee, [Mr Feltos], on or before 7 December 2023.
Enforcement
4.In the event the wife fails to vacate the [Suburb C] property by 4.00pm on 7 December 2023, pursuant to r 11.55(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 a Warrant for Possession, authorising an enforcement officer to enter the [Suburb C Property] and give possession of the Property to the second respondent trustee, [Mr Feltos], be issued forthwith in the following form: To the Marshal of the Court, to all officers of the Australian Federal Police and to all officers of the police force in the State of New South Wales for the purpose of giving effect to the Order of this Court requiring [MS SAHA] to vacate the property situated at and known as [B Street, Suburb C], in the State of New South Wales, being the whole of the land more particularly described in Certificate of Title Volume […] Folio […], are directed with such assistance as they may require and if necessary by force to enter upon the property and cause [MS SAHA] to vacate the property and vacant possession of the land to be given to the second respondent trustee, [MR FELTOS] of c/- Stacks Law Firm, [O Street, Town XX].
5.Pursuant to r 11.62 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the enforcement officer may, when enforcing the Warrant for Possession (with such assistance as the enforcement officer requires) and, if necessary, by force, do any of the following:
(a) Enter and search the Property;
(b)Take possession of or secure against interference of the Property the subject of the warrant; and
(c)Enter and remove from the Property any person who is not lawfully entitled to be on the Property.
Costs
6. The wife within 28 days from the date of these orders pay the costs of:
(a) The husband fixed in the sum of $3,142; and
(b)The second respondent trustee, [Mr Feltos] fixed in the sum of $20,560.
(As per the original)
The determinations under challenge extended the time for the wife to comply with earlier primary orders made more than 12 months ago, on 13 February 2023, that provided:
1. Pursuant to ss 30, 77(1)(e) and 77(g) of the Bankruptcy Act 1966 (Cth), the first respondent give vacant possession of the property located at [B Street, Suburb C NSW] and described in Certificate of Title Volume […] Folio […] to the second respondent within twenty-eight (28) days of these orders.
2. Pursuant to ss 30, 77(1)(e) and 77(g) of the Bankruptcy Act 1966 (Cth), a writ of possession in favour of the second respondent may be issued twenty-eight (28) days after the date of these orders.
3. Pursuant to s 30 of the Bankruptcy Act 1966 (Cth), the third respondent execute all documents and do all things as are reasonably necessary to enable the second respondent to effect the sale of the property, failing which a Registrar of the Court is authorised to do so.
4. Pursuant to s 79 of the Judiciary Act 1903 (Cth) and s 74MA of the Real Property Act 1900 (NSW):
(a) the caveat lodged by the third respondent numbered […]; and
(b) the caveat lodged by the first respondent, fourth respondent and fifth respondent numbered […];
be withdrawn by the caveators within seven (7) days after the date of this order.
5. The sale of the property:
(a) may be by auction or by private treaty or by tender;
(b) may be for cash or on such terms as the second respondent may think suitable but subject to a reserve of 85% of the value of the land as determined by a registered valuer.
6. The second respondent apply the proceeds of any sale of the property as follows:
(a) in payment of amounts for any unpaid land tax or other encumbrances on the property accrued as at the date the sale is completed, to the extent that no allowance is made in any contract of sale;
(b) in satisfaction of the costs and expenses of the sale of the property including:
(i) the remuneration payable to the second respondent in respect of acting on the sale, to be calculated at normal hourly rates;
(ii) in payment of other costs of sale, including legal and conveyancing costs, advertising and marketing costs, and agent’s commission;
(iii) in payment of expenses incurred by the second respondent for the purpose of facilitating the sale, including bringing the property up to a condition which would facilitate the sale;
(iv) in payment of all rates, insurances and other outgoings on the property;
(c) in payment of the amount of the judgment debt provided by paragraph 7 below, being the amount which the third respondent was required to pay pursuant to the notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) together with interest;
(d) in satisfaction of the costs referred to in paragraph 8 below; and (e) the balance, if any, is to be paid to the third respondent.
7. Judgment be entered in favour of the second respondent against the third respondent in the sum of $853,875.00 plus interest.
8. The third respondent pay the second respondent’s costs of and incidental to these proceedings.
9. The third respondent be entitled to an indemnity for the costs order made in paragraph 8 above from the first respondent.
10. No order as to costs between the second respondent and the fourth respondent.
11. No order as to costs between the second respondent and the fifth respondent.
12. The second respondent, fourth respondent and fifth respondent be excused from any further attendance.
13. The application be adjourned to 10:00am on 4 April, 2023 for final hearing (in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
14. The parties have leave to file by no later than 4:00pm on 21 March, 2023, one further affidavit not exceeding 10 pages substantively and 10 pages of annexures.
The orders made 13 February 2023 were the subject of an appeal by the wife. That appeal was dismissed by the Appellate division on 24 August 2023 (Saha & Lahiri (No 3) [2023] FedCFamC1A 144).
The orders now under challenge on appeal were by way of the exercise of a broad discretion facilitating the enforcement of the primary orders made 13 February 2023 and as to the costs of the wife’s unsuccessful application for the Court not to enforce its own orders.
THE LAW
The inquiry as to a stay is directed to whether circumstances exist that warrant the exercise of discretion to depart from the presumption that a party is entitled to the fruits of the judgment, and to assume that such judgment is correct (Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 (“Burgundy Royale”)).
Circumstances which may justify a stay of an order pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or when there is a real risk it will not be possible for the prospectively successful appellant to be restored substantially to his or her former position if the challenged order is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–223).
It is important to consider the prospects of the appeal and where the balance of convenience lies between the parties (Burgundy Royale at 685). The relevant principles which govern appeals from discretionary judgments made are well known. Error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”) must be established.
Additionally, leave is required for the wife to appeal from orders under challenge pursuant to s 28(3)(e) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). To achieve leave to appeal, the wife must demonstrate that the decision under challenge was “attended by sufficient doubt to warrant it being reconsidered by the Full Court and substantial injustice would result if leave were refused, supposing the decision to be wrong” (Medlow & Medlow (2016) FLC 93-692 (“Medlow”) at [57] (emphasis in original)).
CONSIDERATION
The wife was required pursuant to the orders made more than 12 months ago in February 2023 to vacate the Suburb C property so it could be sold by the wife’s bankruptcy trustee. There is no current proceeding on foot to vary or set aside those primary orders.
The proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) as between the husband and the wife were dismissed by Jarrett J on 15 February 2024 in circumstances where the parties adduced insufficient evidence for the Court to be able to identify their interests in property.
The husband advised that he proposes to recommence s 79 proceedings relating to the remaining property held by the parties’ non-complying superannuation fund after payment of any outstanding taxation and penalties to the Australia Taxation Office. In the course of her submissions, the wife repeated the gravamen of what is contained in [56] and [57] of Lahiri & Saha (No 8), being that she has a strong case in the NSW Supreme Court for her bankruptcy to be set aside due to misconduct by the trustee, and that she will suffer undue hardship if she is evicted from her home in circumstances where her bankruptcy trustee has “stolen” everything that she owns.
The wife’s statement of claim filed in the NSW Supreme Court on 22 September 2022 was struck out on 17 November 2023. The indulgence provided to the wife to amend her statement of claim is next listed for consideration in that forum on 4 April 2024. At present, there is no competent cause in that forum. As recorded in the primary reasons now under challenge on appeal, the Supreme Court on 17 November 2023 identified that the wife’s assertions in that forum were deficient in seeking to impinge judgments of this Court and its failure to comply with the Uniform Civil Procedure Rules 2005 (NSW) (see Lahiri & Saha (No 8)). The reasons of Schmidt AJ explore the wife’s three unsuccessful Supreme Court motions seeking to restrain the trustee from selling the Suburb C property or enforcing orders of this Court, her prospects of resisting those orders, and her serious allegations of wrongdoing and criminal offending by the wife’s bankruptcy trustee. The wife did not adduce evidence in support of the stay application to suggest that her proposed amended statement of claim will be accepted for filing in the Supreme Court.
The wife identified in submissions that her Amended Notice of Appeal is listed for hearing in three weeks’ time, and hence any stay would be in operation for a short period. This submission attracts weight.
The trustee submitted that the appeal may be adjourned, or that judgment may be reserved on appeal for some period. Each of these submissions attract weight.
The wife said that a failure to grant a stay will render her appeal nugatory. She said that the dismissal of the s 79 proceedings on 15 February 2024 will make real property available for her to have funds to “settle the judgment” in favour of the wife’s bankruptcy trustee. It was difficult to follow this submission, in that the husband is the sole director of the corporation who is the registered proprietor of the Suburb C property, and the balance of the wife’s property, should it not be held in superannuation, has vested in the wife’s bankruptcy trustee.
The wife made scant reference to her grounds of appeal recorded as follows:
[Leave to Appeal:]
1.The orders of Campton J of 22 November 2023 were made before the applicant’s application of 10 July 2023 in BRC 8518/2020 seeking proof of debt from [the wife’s bankruptcy trustee] was determined.
2.The orders of Campton J of 22 November 2023 were made before the applicant’s application against [the wife’s bankruptcy trustee] in Supreme Court Sydney was determined
3. Campton J fell into appealable [sic] error by substituting his own opinion of the applicant’s medical condition for independent expert medical opinion and MRI reports
4. Campton J gave inadequate reasons, including for the punitive costs orders
5. Campton J’s draft enforcement orders are irregular
6.Campton J had no jurisdiction to order NSW State Police and Federal Police to do the NSW Sheriff’s job
[Grounds of Appeal:]
1. The primary judge erred in his failure to consider relevant evidence that the applicant’s application of 10 July 2023 seeking proof of debt from [the wife’s bankruptcy trustee] was not yet listed or determined, and that Supreme Court proceedings 2022/00284281 against [the wife’s bankruptcy trustee] were not yet determined
2. The primary judge erred in making punitive gross sum costs orders in excess of the quantum sought by the second respondent, and without any evidence of the first respondent’s costs, who was represented by a lawyer funded by legal aid, without counsel
3. The Court had no jurisdiction to order “state and federal police” to do the NSW Sheriff’s job
4. The primary judge erred in making orders assigned to the Brisbane enforcement Registrar, when no party had sought substituted judgment against the applicant
5.The primary judge erred in his failure to consider relevant evidence of the applicant’s medical condition and in his gross misinterpretation of the evidence
6. The primary judge erred in his failure to consider all relevant laws and in his gross misinterpretation of the relevant applicable laws
7. The primary judge erred in applying the incorrect tests and principles
(As per the original)
The trustee submitted that the Amended Notice of Appeal in its current form lacks legitimate contention of appealable error and hence has no merit. He correctly identified that the rights to be enforced pursuant to the February 2023 orders are by way of a statutory charge over the Suburb C property pursuant to s 139ZQ Bankruptcy Act notice that has withstood two appellate challenges of the wife.
The grounds of appeal in the Amended Notice of Appeal appears to contend that the orders under challenge were, in the opinion of the wife, inappropriate, or, which she finds objectionable. No meritorious House error is identified, nor do the grounds identify where a miscarriage of justice has occurred as a result of the manner in which the proceedings were conducted. The wife’s oral submissions in support of the stay did not address the grounds or the threshold required to achieve leave to appeal. The wife’s grounds do not engage with the exercise of the broad discretion discharged on 22 November 2023 facilitating enforcement of the Court’s orders.
The proposed grounds of appeal must be competent. The limits upon appellate interference with discretionary judgments and the requirements to achieve leave to appeal must be acknowledged. Unless the wife can demonstrate that there is merit identified in the appeal, it is pointless granting the indulgence of a stay. That issue is central to this inquiry, though other considerations can influence the exercise of discretion. The submissions of the wife’s bankruptcy trustee as to the wife’s application for leave to appeal being absent merit attracts decisive weight. Putting it simply, as the appeal is devoid of merit. It is futile to grant a stay.
Additionally, the wife did not articulate how successful appeal from the orders made 22 November 2023, facilitating the enforcement of the primary orders that are no longer subject to challenge as made in February 2023, will establish the serious allegations she is attempting to promote as against the trustee in the Supreme Court of NSW.
The trustee proffered an undertaking that upon obtaining possession of the Suburb C property, he will not exchange contracts for its sale prior to 4.00pm on 22 March 2024, being the date of the hearing of the appeal. If the wife is successful in that appeal, then the real property would remain in specie and its possession could be returned to the wife, hence not rendering her appeal nugatory.
For all the above reasons, the wife has not discharged the onus to achieve the indulgence of a stay. Her Application in a Proceeding filed 26 February 2024 will be dismissed. The wife’s bankruptcy trustees’ undertaking will be noted.
COSTS
In the event that the stay was unsuccessful, the trustee sought costs in the fixed sum of $5,000. The wife did not dispute the reasonableness of quantum of the costs sought. The husband did not seek costs.
The wife submitted that each party should bear their own costs or that they be reserved.
The starting position, as set out at s 117 of the Act, is that each party bear their own costs. This position may be departed from where there are justifying circumstances drawn from the considerations set out at s 117(2A).
The wife has been wholly unsuccessful. The circumstances justify the making of an order in the fixed sum as sought by the trustee.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 4 March 2024
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