Lahiri & Saha (No 6)

Case [2023] FedCFamC1F 797


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Lahiri & Saha (No 6) [2023] FedCFamC1F 797

File number(s): BRC 8518 of 2020
Judgment of: JARRETT J
Date of judgment: 19 September 2023 
Catchwords: FAMILY LAW – Property adjustment – no appearance by first respondent – Where majority of property held by third respondent as trustee for superannuation fund – Where evidence suggests superannuation fund may no longer be classed as self managed superannuation fund – Where evidence does not clearly establish the respective interests of the applicant and first respondent in the superannuation fund – Where submissions did not adequately address either of these issues – Order for further written submissions
Legislation:

Corporations Act 2001 (Cth) ss 203B, 206B(3)

Bankruptcy Act 1966 (Cth) s 58(1)(b)

Family Law Act 1975 (Cth) ss 79, 90XD, 90XS(1)

Income Tax Assessment Act 1997

Retirement Savings Accounts Act 1997 (Cth)

Small Superannuation Accounts Act 1995 (Cth)

Superannuation Industry (Supervision) Act 1993 (Cth) ss 10, 17A(1)(a), 17A(1)(d)(ii), 17A(1)(e), 17A(1)(f), 17A(1)(g), 17A(4), 17A(4)(a)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.27(1), 2.27(2)

Cases cited:

Fitzgerald & Sapico [2005] FamCA 44

In the Marriage of Buljubasic [1999] 25 Fam LR 371

Lahiri & Saha [2021] FamCA 639

Lahiri & Saha [2022] FedCFamC1F 271

Lahiri & Saha(No 2) [2022] FedCFamC1F 273

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

Lahiri & Saha(No 4) [2023] FedCFamC1F 182

Lahiri & Saha(No 5) [2023] FedCFamC1F 304

Saha & Lahiri [2022] FedCFamC1A 152

Saha & Lahiri (No 2) [2022] FedCFamC1A 181

Saha & Lahiri (No 3) [2023] FedCFamC1A 144

Division: Division 1 First Instance
Number of paragraphs: 31
Date of hearing: 4 September 2023
Place: Brisbane
Counsel for the Applicant: Mr Cahill
Solicitor for the Applicant: A P Hodgson & Associates
Solicitor for the First Respondent: Litigant in person, no appearance
Solicitor for the Second Respondent: No appearance, attendance excused
Solicitor for the Third Respondent: No appearance

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 AS TRUSTEE FOR THE D PTY LTD SUPERANNUATION FUND

Third Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

19 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.By 4.00pm on 9 October, 2023 the applicant file and serve written submissions, supported by references to any filed evidence, dealing with the following issues:

(a)the nature of the trust known as the D Pty Ltd Superannuation Fund;

(b)whether the D Pty Ltd Superannuation Fund is a self managed superannuation fund for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth);

(c)if it is, then the value of the parties’ interests in that fund and how those interests should be divided to render a just and equitable outcome between the parties and why they should be divided in that way;

(d)if not, then what is the nature and value of the parties’ interests, if any, in the assets of…

Continue reading Lahiri & Saha (No 6)

Sign in free to access the full text

Details
AGLC
Lahiri & Saha (No 6) [2023] FedCFamC1F 797
Case
[2023] FedCFamC1F 797
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) was tasked with adjudicating on an application for a property adjustment between Mr Lahiri and Ms Saha. The majority of the property in question was held by D Pty Ltd as trustee for the D Pty Ltd Superannuation Fund. Ms Saha did not appear or file submissions, while Mr Lahiri made submissions but did not adequately address key issues regarding the nature and classification of the superannuation fund. The court was required to determine whether the D Pty Ltd Superannuation Fund was a self-managed superannuation fund under the Superannuation Industry (Supervision) Act 1993 (Cth), and if so, to establish the value and division of the parties' interests in that fund. The court was also required to consider whether further evidence was needed to clarify the interests of the parties in the fund or its corporate trustee.

The court found that the submissions made by Mr Lahiri did not adequately address the critical issues regarding the nature and classification of the D Pty Ltd Superannuation Fund. The evidence suggested that the fund may no longer be classified as a self-managed superannuation fund, but the submissions did not clarify the respective interests of the parties in the fund. Given the lack of clarity and the absence of submissions from Ms Saha, the court ordered further written submissions from both parties. The court directed Mr Lahiri to provide detailed submissions addressing the nature of the trust, its classification under the Superannuation Industry (Supervision) Act 1993, the value and division of the parties' interests, and any directions needed for the resolution of the application. Ms Saha was also required to submit written responses to the same issues. The application was adjourned for further hearing to allow time for the submission of the additional evidence and submissions.

The court ordered that Mr Lahiri file and serve written submissions by 4.00pm on 9 October 2023, addressing the specified issues. Ms Saha was similarly directed to file and serve written submissions by 4.00pm on 23 October 2023. The application was set to be heard further on 3 November 2023 at 9.30am in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane. The form of the order was subject to review and potential variation under the relevant court rules. The court's reasons for judgment were also subject to review to correct any minor typographical or grammatical errors, or to record any variations to the order.

Orders

Orders of the court

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 AS TRUSTEE FOR THE D PTY LTD SUPERANNUATION FUND

Third Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

19 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. By 4.00pm on 9 October, 2023 the applicant file and serve written submissions, supported by references to any filed evidence, dealing with the following issues:

(a) the nature of the trust known as the D Pty Ltd Superannuation Fund;

(b) whether the D Pty Ltd Superannuation Fund is a self managed superannuation fund for the purposes of the Superannuation Industry (Supervision) Act 1993 (Cth);

(c) if it is, then the value of the parties’ interests in that fund and how those interests should be divided to render a just and equitable outcome between the parties and why they should be divided in that way;

(d) if not, then what is the nature and value of the parties’ interests, if any, in the assets of the trust or perhaps its corporate trustee;

(e) what directions, if any, need to be made to ensure the resolution of the application as soon as possible.

2. By 4.00pm on 23 October, 2023 the first respondent file and serve written submissions, supported by references to any filed evidence, dealing with the issues set out in order 1 hereof.

3. The application be adjourned for further hearing to 3 November, 2023 at 9.30am in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.

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

Full text does not contain this section.

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

Full text does not contain this section.