Lahiri & Saha (No 3)

[2023] FedCFamC1F 181

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lahiri & Saha (No 3) [2023] FedCFamC1F 181

File number(s):

BRC 8518 of 2020

Judgment of:

JARRETT J

Date of judgment:

13 February 2023

Catchwords:

FAMILY LAW – PROPERTY – Where the first respondent made various requests to appear by electronic means to chambers – Where the first respondent was directed to file an Application in a Proceeding seeking leave to appear by electronic mean – Where no such application was made – Where the first respondent subsequently failed to appear – Orders made in absence of the first respondent

FAMILY LAW – PROPERTY – Where the applicant made an oral application at the hearing for leave to appear on behalf of the third respondent company – Where the first respondent has not had an opportunity to be heard in respect of the application – Where there would be a denial of procedural fairness to the first respondent to give leave – Leave refused

Legislation:

Bankruptcy Act 1966 (Cth) ss 30, 77(1)(e), 77(g), 139ZQ

Judiciary Act 1903 (Cth) s 79

Real Property Act 1900 (NSW) s 74MA

Division:

Division 1 First Instance

Number of paragraphs:

12

Date of hearing:

13 February 2023

Place:

Brisbane

Solicitor for the Applicant:

Mr Hodgson, A P Hodgson & Associates

Solicitor for the First Respondent:

Litigant in person (did not participate)

Counsel for the Second Respondent:

Mr Keane KC

Solicitors for the Second Respondent:

Stacks Law Firm

Solicitor for the Third Respondent:

Litigant in person (did not participate)

Solicitor for the Fourth Respondent:

Mr Raphael, VTS Lawyers

Solicitor for the Fifth Respondent:

Ms Gardiner, NSW Trustee & Guardian

ORDERS

BRC 8518 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR LAHIRI

Applicant

AND:

MS SAHA

First Respondent

MR FELTOS

Second Respondent

D PTY LTD ATF THE D PTY LTD SUPERANNUATION FUND (and others named in the Schedule)

Third Respondent

order made by:	JARRETT J
DATE OF ORDER:	13 FEBRUARY 2023

THE COURT ORDERS THAT:

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 …6H; and

(b)the caveat lodged by the first respondent, fourth respondent and fifth respondent numbered …70;

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 order 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 order 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 ten (10) pages substantively and ten (10) pages of annexures.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JARRETT J:

1. Over the past two weeks there has been an inordinate amount of correspondence with my chambers by various parties in this case but, principally, the first respondent.  She has, as she has done in the past, sought leave in an informal way to appear on the telephone.  That leave was refused because it was opposed by one or other of the other parties in the proceedings and this is the final hearing of this application, or, at least, that is what it is intended to be. 

2. In the face of opposition to her appearing by telephone, she was advised, as she has been advised in the past, that it would be necessary for her to file an application in a case with some supporting affidavit material so that the Court could make a proper decision about whether she should be given leave to appear via electronic means.  All of that advice was for naught, because no application to appear by electronic means was filed, although I am told by my associates that there was an affidavit filed that seemed to support such an application. 

3. The correspondence culminated in an email that I instructed my associate to write to both the applicant and the first respondent on Friday.  They had commenced to engage in some form of email battle into which my chambers was copied.  I have said before in this case that it is entirely inappropriate to engage the Court or to include the Court in such correspondence.  I instructed my associate to write to both the applicant and the first respondent by email, informing them that, on my direction, my associate and legal associate would no longer even look at emails that came from either the applicant or the first respondent directly.  Indeed, I seem to recall reading in this case in the past, affidavits which included emails from chambers of other judges, and, in particular, judges of the New South Wales Supreme Court to the same effect. 

4. So that is what has happened off the record through correspondence with my chambers. 

5. At the commencement of this morning’s hearing, Mr Lahiri, the applicant, sought leave to appear for the third respondent, which is a company which acts as the trustee of the superannuation fund that was established – I say this loosely – established by the applicant and the first respondent.  He has not filed a formal application to that effect and it seems that the material that he relies upon for that order for leave to represent the company or appear for the company was only filed this morning. 

6. I am loathe to give him leave to appear on behalf of the company, because it would just encourage more bad behaviour in these proceedings.  This is a case where everything needs to be done absolutely correctly, I would have thought, lest it be said in another place that there has been some form of denial of procedural fairness.  I would have thought that, on past conduct and knowing a little bit about the case, I would expect that the first respondent would oppose with vehemence Mr Lahiri having leave to appear on behalf of the trustee for the superannuation fund.

7. I refused his application for these reasons.  First, it is way too late.  Second, the filing of affidavit material this morning highlights the fact that to grant his application would be to work a procedural unfairness against the first respondent, at the very least.  He accepted, when I put to him, that she would likely oppose him being granted leave to appear for the third respondent.  The way in which he has used or dealt with the assets of the superannuation are a point of strong contention from her point of view. 

8. So to accept material filed today and make an order for him to represent the company in the absence of a properly constituted application in respect of which the first respondent has been given proper notice would be simply like waving a red flag at a bull.  I do not intend to do that.  So, for all intents and purposes, the third respondent is unrepresented and does not appear. 

9. The first respondent has not appeared today.  I do not think there can be any question that she knew that the proceedings were on foot.  I have already placed on the record correspondence that has been received by my chambers about today’s proceedings. 

10. The application by the second respondent against the first respondent is, essentially, ancillary relief to the orders that I pronounced last year about the property at B Street, Suburb C.  There were some consent orders made as well at that time as between the applicant and the second respondent which entitled the second respondent to the sum of money represented by the 139ZQ notice, and which allowed the second respondent to take action against the property at B Street, Suburb C.  

11. It is appropriate, in my view, in furtherance of those orders, to make orders 1 and 2 in the draft that has been described in these proceedings as consent orders.  They are orders made for the purposes of putting the second respondent into the position of being able to sell that property and realise the proceeds of its charge.  I make orders numbered 1 and 2 of the consent orders at page 809 of exhibit 1. 

12. It is also appropriate that judgment be entered against the third respondent in favour of the second respondent for the amount of the charge.  So there will be an order in the same terms as paragraph 7. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.

Associate:

Dated:       22 March 2023

SCHEDULE OF PARTIES

BRC 8518 of 2020
Respondents
Fourth Respondent:	MS PP SAHA
Fifth Respondent:	MR L