Lahiri & Saha (No 10)

Case [2024] FedCFamC1F 110

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…

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AGLC
Lahiri & Saha (No 10) [2024] FedCFamC1F 110
Case
[2024] FedCFamC1F 110
Decision Date

CaseChat Overview and Summary

The matter of Lahiri & Saha (No 10) involved an application by the wife, Ms Saha, seeking a stay of orders enforcing an order for vacant possession of a real property in favour of Mr Feltos, as the wife’s trustee in bankruptcy, pending an appeal of those orders. The Federal Circuit and Family Court of Australia was required to consider the application and determine whether the stay should be granted. The primary issues before the court were whether there was sufficient doubt about the decision to warrant reconsideration and whether substantial injustice would result if the stay was not granted, assuming the decision was incorrect. The wife argued that she had a strong case in the NSW Supreme Court for her bankruptcy to be set aside due to misconduct by the trustee, and she would suffer undue hardship if evicted from her home.

The court dismissed the application for a stay, finding that there was no merit in the wife's grounds of appeal and that the orders for vacant possession had been previously upheld. The court noted that the wife had been given multiple extensions to vacate the property and that her appeal challenging those orders had already been dismissed. Additionally, the court considered that the wife had not provided any evidence to suggest that her amended statement of claim in the NSW Supreme Court would be accepted. The wife's assertion that her appeal was imminent carried some weight, but the court found that this was insufficient to grant the stay. The court ordered that the application for a stay was dismissed and that the wife pay the second respondent's costs in a fixed sum of $5,000. The court also noted that the second respondent agreed to an undertaking not to exchange contracts for the sale of the property until the completion of the appeal hearing.

In conclusion, the Federal Circuit and Family Court of Australia dismissed the wife's application for a stay of orders enforcing the order for vacant possession. The court found that there was no sufficient doubt about the decision to warrant reconsideration and that substantial injustice would not result if the stay was not granted. The wife was ordered to pay the second respondent's costs, and the second respondent agreed to an undertaking regarding the sale of the property until the appeal hearing was completed.

Orders

Orders of the court

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.

Background

Background to the litigation

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.Costs6. 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)

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

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.