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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lahiri & Saha (No 3)

Details

AGLC: Lahiri & Saha (No 3) [2023] FedCFamC1F 181
Case: [2023] FedCFamC1F 181
Decision Date

CaseChat Overview and Summary

The case of Lahiri & Saha (No 3) was heard in the Federal Circuit and Family Court of Australia (Division 1). The case involved a dispute over property, with the applicant seeking orders in relation to a property located at B Street, Suburb C, NSW. The first respondent, who was not represented, had previously made informal requests to appear via telephone, which were refused. The applicant sought leave to appear on behalf of a company, the third respondent, which was the trustee of a superannuation fund established by the applicant and the first respondent. The legal issues before the court included whether the first respondent should be granted leave to appear via electronic means, and whether the applicant should be granted leave to appear on behalf of the third respondent.

The court found that the first respondent had not followed the proper procedures for seeking leave to appear via electronic means, and that her failure to do so resulted in a denial of procedural fairness to the other parties. As a result, the court refused her request to appear via telephone and denied the applicant's request to appear on behalf of the third respondent. The court found that granting the applicant leave to appear on behalf of the third respondent would be inappropriate, given the contentious nature of the case and the potential for further procedural issues.

The court made orders in relation to the property at B Street, Suburb C, including orders for the first respondent to give vacant possession of the property to the second respondent, and for the third respondent to execute documents necessary to enable the sale of the property. The court also made orders in relation to caveats lodged by the third and first respondents, and ordered that the sale of the property be conducted by auction or private treaty, with a reserve price of 85% of the value of the land as determined by a registered valuer. The court further ordered that the proceeds of the sale be applied in satisfaction of various costs and expenses, including the costs of the sale and the costs of the proceedings.

In summary, the court refused the requests of the first and third respondents to appear via electronic means and to be represented by the applicant, respectively. The court made orders in relation to the property at B Street, Suburb C, including orders for possession and sale of the property, and orders in relation to caveats lodged by the third and first respondents. The court also made orders in relation to the application of the proceeds of the sale of the property, and ordered that the second respondent apply the proceeds in satisfaction of various costs and expenses.

Orders