Lahiri & Saha (No 7)
[2023] FedCFamC1F 999
•20 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lahiri & Saha (No 7) [2023] FedCFamC1F 999
File number BRC 8518 of 2020 Judgment of: CAMPTON J Date of judgment: 20 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application to adjourn review of order made by a judicial registrar extending the time for the operation of primary enforcement orders made by a judge –where a prior application for a stay of the primary orders has been refused and an appeal from the primary orders dismissed by the Full Court – application refused Legislation: Family Law Act 1975 (Cth) s 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 14
Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 20 November 2023 Place: Sydney Counsel for the Applicant: Litigant in person Solicitor for the First Respondent: A P Hodgson & Associates Counsel for the Second Respondent: My Neggo Solicitor for the Second Respondent: Stacks Law Firm Counsel for the Third Respondent: Did not participate 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
D PTY LTD AS TRUSTEE FOR THE D PTY LTD SUPERANNUATION FUND
Third Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The application of the wife to adjourn the relief sought in paragraphs 1 and 4 of her Application in a Proceeding filed 28 September 2023 and sealed 4 October 2023 is refused.
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 the pseudonym Lahiri & Saha has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
I refuse the wife’s application for adjournment for the follow.
Briefly, by way of an Application in a Proceeding filed 28 September 2023 and sealed by the Court on 4 October 2023, Ms Saha (“the wife”) seeks relief by way of review pursuant to ch 14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) of an enforcement order made by a Judicial Registrar on 13 September 2023, relief as to the transfer of proceedings in Brisbane to the Sydney Registry of the Court, relief as to Jarrett J being disqualified from further hearing the proceedings, relief in relation to costs and as to other matters.
The Judicial Registrar’s orders extend the time to enforce primary orders made by Jarrett J on 13 February 2023, including the following:
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 […]; and
(b)the caveat lodged by the first respondent, fourth respondent and fifth respondent numbered […];
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 paragraph 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 paragraph 8 above from the first respondent.
The application by the wife for leave to appeal and if leave was granted from the orders made 13 February 2023 was dismissed by the Full Court on 24 August 2023. There has been no stay of the primary orders made by Jarrett J or those by way of enforcement of the Judicial Registrar.
The wife, in seeking to adjourn the relief by way of review of the Judicial Registrar’s enforcement orders, cites that this Court is not in a position to make any final decision as to enforcement, having regard to current litigation in the Supreme Court of New South Wales. In that forum, the wife contends that her trustee in bankruptcy has not proved debts in her bankruptcy and, hence, cannot enforce the primary orders made by Jarrett J on 13 February 2023 and, further, makes other serious contentions as to the trustee’s conduct being “in breach of trust” and “fraud”.
The wife otherwise seeks to proceed to have determined today the balance of relief as sought in her Application in a Proceeding filed 28 September 2023 and sealed on 4 October 2023. The husband does not wish to be heard in relation to the application for an adjournment.
The trustee opposes the application for an adjournment. The trustee identifies that the wife’s Statement of Claim as filed in the New South Wales Supreme Court was struck out by way of orders made by Schmidt AJ on 17 November 2023. Pursuant to further orders made on that day, the wife has leave to file and serve a further motion seeking leave to file and serve an Amended Statement of Claim on or before 1 February 2024 together with a supporting affidavit. As a condition of that order, the wife was ordered to pay the trustee’s costs of her motions as agreed or assessed. A separate motion of the trustee was adjourned to be heard with the wife’s motions seeking leave to replead. The proceeding has been transferred to the equity division and is listed for directions only on 12 February 2024 before Kunc J. The reasons for judgment of Schmidt AJ record that this is, in reality, the wife’s last opportunity to replead her case.
There is significant force in the submissions made by the trustee that there is currently no competent pleaded case on foot by the wife in the Supreme Court, that there is no injunction in that forum restraining the trustee from proceeding to enforce the primary orders made by Jarrett J on 13 February 2023 and that the absence of legal representation on behalf of the wife today is grounded from her s 102NA funding being not available for the current application prosecuted that she prosecutes.
It is in the interests of all of the parties, including the wife, where there is no stay of the orders made by Jarrett J on 13 February 2023 or for those made by the Judicial Registrar on 13 September enforcing the primary orders, that her Application for Review, which will proceed by way of an original hearing today is determined.
For those reasons, the application for adjournment of part of the relief as sought by the wife in her Application in a Proceeding listed before me today is refused.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 24 November 2023
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