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 RespondentD 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…
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- AGLC
- Lahiri & Saha (No 6) [2023] FedCFamC1F 797
- Case
- [2023] FedCFamC1F 797
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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