Lahiri & Saha (No 8)
[2023] FedCFamC1F 1000
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lahiri & Saha (No 8) [2023] FedCFamC1F 1000
File number: BRC 8518 of 2020 Judgment of: CAMPTON J Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where the wife seeks review of an extension of a property enforcement order, for the matter to be transferred to another judge other than the primary part heard judge, and for the venue to be transferred from the Brisbane Registry to the Sydney Registry – where the respondent husband and respondent bankruptcy trustee oppose the application and seek an order for costs – where the wife has failed to comply with the enforcement order for some eight months – where the wife implicitly contends bias of the primary judge but does not particularise which category of bias she contends – where there have been over 39 court events and 11 judgments in this matter since its commencement – application dismissed – order for enforcement confirmed – order for costs. Legislation: Bankruptcy Act 1966 (Cth) ss 120, 139ZQ
Family Law Act 1975 (Cth) ss 79, 90XD, 90XS, 102NA, 102QB, 105, 117
Superannuation Industry (Supervision) Act 1993 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 9.05, 10.13, 11.55, 12.17, 14.05, Sch 1
Uniform Civil Procedure Rules 2005 (NSW)
Cases cited: Lahiri & Saha (No 3) [2023] FedCFamC1F 181
Lahiri & Saha (No 4) [2023] FedCFamC1F 182
Lahiri & Saha (No 7) [2023] FedCFamC1F 999
Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Saha & Lahiri (No 2) [2022] FedCFamC1A 181
Saha & Lahiri (No 3) (2023) FLC 94-158
Division: Division 1 First Instance Number of paragraphs: 80 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: Mr 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:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Husband is granted leave to withdraw paragraph 4 of his Response to Application in a Proceeding dated 17 November 2023 and treated as filed on that day seeking that the wife be declared a vexatious litigant pursuant to s 102QB of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the husband having leave to bring such application by way of filing an Application in a Proceeding on such terms as he is advised.
2.The Application in a Proceeding of the wife filed on 28 September 2023 and sealed on 4 October 2023 is dismissed.
Vacant possession
3.The time for the wife's compliance with Order 1 made 13 February 2023 (‘the 13 February 2023 Orders’) is extended until 7 December 2023, that is the time for the wife to give vacant possession of the property located at B Street, Suburb C NSW and described in Certificate of Title Volume … Folio … ("the Suburb C Property") to the second respondent trustee, Mr Feltos, on or before 7 December 2023.
Enforcement
4.In the event the wife fails to vacate the Suburb C property by 4.00pm on 7 December 2023, pursuant to r 11.55(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 a Warrant for Possession, authorising an enforcement officer to enter the Suburb C Property and give possession of the Property to the second respondent trustee, Mr Feltos, be issued forthwith in the following form: To the Marshal of the Court, to all officers of the Australian Federal Police and to all officers of the police force in the State of New South Wales for the purpose of giving effect to the Order of this Court requiring MS SAHA to vacate the property situated at and known as B Street, Suburb C, in the State of New South Wales, being the whole of the land more particularly described in Certificate of Title Volume … Folio …, are directed with such assistance as they may require and if necessary by force to enter upon the property and cause MS SAHA to vacate the property and vacant possession of the land to be given to the second respondent trustee, MR FELTOS of c/- Stacks Law Firm, O Street, Town U NSW.
5.Pursuant to r 11.62 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the enforcement officer may, when enforcing the Warrant for Possession (with such assistance as the enforcement officer requires) and, if necessary, by force, do any of the following:
(a)Enter and search the Property;
(b)Take possession of or secure against interference of the Property the subject of the warrant; and
(c)Enter and remove from the Property any person who is not lawfully entitled to be on the Property.
Costs
6.The wife within 28 days from the date of these orders pay the costs of:
(a)The husband fixed in the sum of $3,142; and
(b)The second respondent trustee, Mr Feltos fixed in the sum of $20,560.
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).
REASONS FOR JUDGMENT
CAMPTON J:
These reasons determine:
(a)The Application in a Proceeding filed on 28 September 2023 and sealed by the Court on 4 October 2023 by Ms Saha (“the wife”) seeking the review pursuant to r 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) of enforcement orders made by a Judicial Registrar on 13 September 2023 together with orders for the listing of the proceeding before a judge of Federal Circuit and Family Court of Australia Division 1 other than Jarrett J, the transfer of the venue of the proceeding from Brisbane to Sydney and other relief;
(b)The Response to the Application in a Proceeding of Mr Lahiri (“the husband”) filed on 17 November 2023 seeking dismissal of the Application in a Proceeding, an order that the wife be declared a vexatious litigant and costs; and
(c)The Response to the Application in a Proceeding of the second respondent, Mr Feltos, as the Wife’s Trustee in Bankruptcy (“the trustee”) also filed 17 November 2023 seeking dismissal of the Application in a Proceeding and costs.
The Third Respondent did not appear. The previous Fourth and Fifth Respondents are no longer parties to the proceeding.
BACKGROUND
The wife’s Application in a Proceeding requires context.
The husband and wife were married in late 2000.
The property at B Street, Suburb C, New South Wales (“the Suburb C property) was purchased on 8 January 2004 for $585,000. The wife was the sole legal owner. It was the home of the husband, the wife, and their now adult son.
The third respondent is D Pty Ltd as corporate trustee for the D Pty Ltd Superannuation Fund of which be husband and wife are the only members. On 8 December 2014, for nil consideration, the wife transferred a 99/100th interest in the Suburb C property to D Pty Ltd and a 1/100th interest to the husband.
The wife became bankrupt in late 2016. The second respondent was appointed her trustee in bankruptcy. The period of her bankruptcy was extended for a further five years and is not due to expire until 2024. The wife remains in undischarged bankruptcy.
The husband and wife separated on 21 February 2019. An order for divorce came into effect in mid-2021.
On 4 June 2020, the official receiver, at the request of the trustee, issued a notice under s 139ZQ(1) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) requiring D Pty Ltd to pay to the trustee the sum of $853,875, being the value of the interest in the Suburb C property transferred to D Pty Ltd, such transfer being void against the trustee, pursuant to s 120(1) of the Bankruptcy Act.
The husband by way of an Amended Initiating Application filed 4 September 2020 seeks adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The relief by way of Response of the trustee, being the bankruptcy portion of the proceeding, was directed to be listed for a discrete and separate hearing.
On 14 April 2022 the wife’s mother (who was the fourth respondent) and the adult son of the husband and wife who has a litigation guardian (who was the fifth respondent) lodged caveats on the title of the Suburb C property and another property owned by D Pty Ltd.
On 27 April 2022 an application by the wife to extend time to apply to set aside the s 139ZQ notice, as if it had been filed, was dismissed. On 11 November 2022, the wife’s appeal against that decision was dismissed by the Full Court (see Saha & Lahiri (No 2) [2022] FedCFamC1A 181).
On 13 February 2023, Jarrett J delivered reasons (Lahiri & Saha (No 3) [2023] FedCFamC1F 181) and made the following orders in the discrete and separate bankruptcy part of the proceeding:
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.
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 10 pages substantively and 10 pages of annexures.
On 14 February 2023, the wife filed an Application in a Proceeding, seeking the following orders:
(1)Set aside the ex parte orders of [the primary judge] of 13 February 2023, pursuant to Federal Circuit Court Rule 16.05 (1), (2)(a), (2)(b), (2)(e) and (3)
(2) Stay the ex parte orders of [the primary judge] of 13 February 2023
(3) Transfer proceedings BRC 8518/2020 to Family Court Sydney
(4)Lump sum costs orders against the first and second respondents to this application, [the husband] and [the trustee];
(5) Orders 1 to 4 be entered forthwith
(6) This application be returnable instanter before Justice Baumann or in the Family Court Sydney
(As per the original)
On 23 February 2023 Jarrett J delivered judgment making an order that the wife’s Application in a Proceeding filed 14 February 2023 was dismissed. (see Lahiri & Saha (No 4) [2023] FedCFamC1F 182).
One consequence of the orders made by Jarrett J on 13 and 23 February 2023 required the wife to vacate the Suburb C property so it can be sold by the trustee. Other consequences were refusing the wife’s application to list the proceeding before another judge and to transfer the venue of the proceeding from Brisbane to Sydney.
On 27 March 2023 the trustee filed an Application – Enforcement seeking that a warrant for possession issue forthwith authorising enforcement officer to enter the Suburb C property and provide possession of it to the trustee by way of facilitation of the primary orders made 13 February 2023. Rule 11.55 provides for the making of ex parte enforcement orders. The wife filed an Application in a Proceeding on 10 July 2023 seeking an adjournment of any Enforcement Hearing. The wife did not appear at the listing hearing of the Application – Enforcement on 12 July 2023, despite filing the Application for an adjournment. On 12 July 2023 the Enforcement Hearing was adjourned to 9 August 2023.
On 4 April 2023, pursuant order 13 made 13 February 2023, the balance of the s 79 property proceeding initiated by the husband seeking adjustment of the superannuation property of the parties was listed for final hearing before Jarrett J pursuant to Order 13 made 13 February 2023. The trustees’ attendance had been excused pursuant to Order 12 made 13 February 2023. The wife did not participate. The hearing could not proceed and was adjourned until 4 September 2023.
The wife’s Application for leave to Appeal from the orders made 13 and 23 February 2023 was dismissed by the Full Court on 24 August 2023 (see Saha & Lahiri (No 3) (2023) FLC 94-158) An order was made that the wife pay the costs of the second respondent fixed in the sum of $24,000.
The wife did not appear on 4 September 2023. The trustee remained excused. Jarrett J recorded in his reasons (see Lahiri & Saha (No 3) [2023] FedCFamC1F 181):
(a)At [5] that the trustees’ engagement in the substantive proceeding had concluded;
(b)At [14] that the only property remaining available for adjustment between the husband and the wife was their superannuation interests;
(c)At [15] an issue existed as to the character of their contended superannuation interests and potentially whether it may be after-acquired property; and
(d)Observed at [17]:
The relief sought by the [husband] raises critical issues about the nature of what he contends to be a self managed superannuation fund. These issues have not been addressed in either evidence or submissions.
After recording at [18] – [21] provisions of ss 90XS(1) and 90XD of the Act and provisions of the Superannuation Industry (Supervision) Act 1993 (Cth), the Jarrett J stated:
22The first respondent and second respondent were directors of the third respondent. It is the trustee of the [D Pty Ltd Superannuation Fund]. Both the applicant and the first respondent were and remain it seems, beneficiaries of the fund. There is nothing in the evidence to suggest that the conditions prescribed by ss 17A(1)(a) and 17A(1)(e)–(g) are not met. On its face, therefore, the basic conditions that need to exist for a trust to meet the definition of self managed superannuation fund existed in this case. I say existed because the first respondent became disqualified from managing corporations upon her becoming a bankrupt and remains so disqualified whilst she is an undischarged bankrupt: s 206B(3) of the Corporations Act 2001 (Cth). Consequently, she ceased to be a director of the third respondent upon her becoming a bankrupt on 30 September, 2016: s 203B of the Corporations Act. There is no suggestion that the Australian Securities and Investments Commission or a court with jurisdiction under the Corporations Act has allowed her to manage a company for the purposes of s 203B of the Corporations Act.
23The [D Pty Ltd Superannuation Fund] does not therefore appear to meet the conditions that must exist for it to be a self managed superannuation fund.
Having regard to the difficulties confronting Jarrett J in making requisite findings of fact as sought, he made the following orders:
1. By 4.00pm on 9 October, 2023 the [husband] 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 [wife] file and serve written submissions, supported by references to any filed evidence, dealing with the issues set out in order 1 hereof.
The husband filed his written submissions on 1 November 2023. The wife filed her written submissions on 2 November 2023.
The matter came before Jarrett J on 3 November 2023. Counsel appeared for the wife. The current solicitor appeared for the husband appeared. Neither party was able to proceed. Jarrett J adjourned the s 79 trial part heard before him to 15 December 2023.
It emerged during the hearing on 20 November 2023 that an Application in a Proceeding of the husband filed 4 September 2023 has also been adjourned to 15 December 2023 before Jarrett J.
The order subject to review
On 13 September 2023, a Judicial Registrar made the following orders in the wife’s absence:
THE COURT ORDERS, ON A FINAL BASIS, THAT:
Vacant Possession
1.The time for the Respondent's compliance with Order 1 of the Honourable Justice Jarrett’s Orders dated 13 February 2023 (‘the 13 February 2023 Orders’) is extended for a period of twenty-one (21) days from the date of these Orders, that is the time for the Respondent to give vacant possession of the property located at [B Street], [Suburb C] NSW […] and described in Certificate of Title Volume […] Folio […] ("the [Suburb C] Property") to the Applicant is on or before 4 October 2023.
Enforcement
2.In the event the Respondent fails to vacate the [Suburb C] property by 4.00pm on 04 October 2023, pursuant to r 11.55(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 a Warrant for Possession, authorising an enforcement officer to enter the [Suburb C] Property and give possession of the Property to the Applicant, [Mr Feltos], be issued forthwith in the following form: To the Marshal of the Court, to all officers of the Australian Federal Police and to all officers of the police force in the State of New South Wales for the purpose of giving effect to the Order of this Court requiring [MS SAHA] to vacate the property situated at and known as [B Street], [Suburb C], in the State of New South Wales, being the whole of the land more particularly described in Certificate of Title Volume […] Folio […], are directed with such assistance as they may require and if necessary by force to enter upon the property and cause [MS SAHA] to vacate the property and vacant possession of the land to be given to [MR FELTOS] of c/- Stacks Law Firm, [O Street], [Town U] NSW […].
3.Pursuant to r 11.62 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the enforcement officer may, when enforcing the Warrant for Possession (with such assistance as the enforcement officer requires) and, if necessary, by force, do any of the following:
(a) Enter and search the Property;
(b)Take possession of or secure against interference of the Property the subject of the warrant; and
(c)Enter and remove from the Property any person who is not lawfully entitled to be on the Property.
Costs
4.In the circumstances where the Applicant seeks an order that the Respondent pay the costs of and incidental to the Application – Enforcement filed 27 March 2023:
(a)Within fourteen (14) days of these Orders, the Applicant file and serve written submissions in support of such application for costs; and
(b)Within a further fourteen (14) days thereafter, the Respondent file and serve any brief written submissions in answer to the submissions filed and served by the applicant seeking an order for costs; and
(c)Within seven (7) days of being served with the submissions relied on by the Respondent, the Applicant file and serve any further written submissions, strictly in reply, to the submissions served by the respondent, and any such application for costs shall be considered in Chambers.
AND THE COURT NOTES THAT:
A.The Respondent was attempted to be called on this date, however, there was no response.
B.Pursuant to r 11.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, this is an enforcement order pursuant to Rule 11.55(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to enforce possession of real property / entitling a person to the possession of real property.
C. An Application - Enforcement was filed by the Applicant on 27 March 2023.
D. In making the orders herein consideration was given to:
I. Affidavit of [Mr GG] filed 27 March 2023;
II.The Application in a Proceeding filed by the Respondent on 10 July 2023;
III. Affidavit of Respondent filed on 10 July 2023;
IV. Written submissions of the Applicant filed 6 September 2023;
V.Further Written submissions of the Applicant filed 12 September 2023; and
VI.Medical certificate of [Dr VV] dated 12 September 2023, in relation to the Respondent.
E.Rule 14.05 (2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that the time for filing an application for review of this decision is 21 days.
F.Rule 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that the Court may at any time vary or set aside an order if it was made in the absence of a party.
The effect of the orders made by the Judicial Registrar was to extend the time for the wife to comply with the primary orders made on 13 February 2023 in giving vacant possession of the Suburb C property to the trustee, and deferred the issue of a warrant for possession should the wife failed to vacate the property by 4.00 pm 4 October 2023.
The wife did not apply for a stay of the orders made by the Judicial Registrar.
The trustee filed submissions on 2 October 2023 as to costs pursuant to the orders made by the Judicial Registrar. The court portal does not record that the wife filed any submissions as directed to the costs reserved by the Judicial Registrar.
The NSW Supreme Court proceeding
In late 2022, the wife filed a statement of claim in the NSW Supreme Court. The trustee is the first defendant in that proceeding.
In late 2022, the wife filed a motion for injunctive orders restraining the trustee from selling the Suburb C property, or a property in Queensland, or a property in K State, USA, and from pursuing or commencing any legal action in relation to any property held by D Pty Ltd (including the three identified properties). The motion was listed before Adams J on two dates in late 2022. The motion for injunctive orders was refused on in early 2023 by Button J in the NSW Supreme Court. The transcript of that day includes the following:
In my opinion, the amended statement of claim can be thought of as embarrassing in the legal sense. It is prolix. It is discursive. It is also very difficult to understand. I believe it muddies the position rather than clarifies it, which is, after all, the whole purpose of pleadings.
It is noteworthy immediately that it speaks of 26 causes of action, which I think in itself is unorthodox to the point of being inappropriate.
I do not accept that it is an improvement on the earlier pleading. If anything, I think it is a movement backwards.
I do not propose to allow that document to be filed for those reasons.
I think that the original statement of claim is also troubling defective.
That is my determination of order 5, proposed in the notice of motion of the applicant….
I think things need to be dealt with expeditiously in the Duty List. As it happens, it is a very busy day. I think the transcript will speak for itself in terms of the basis upon which the applicant, [the wife], seeks orders 2, 3 and 4.
Suffice to say, thinking about the seminal principles in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 as to when an injunction should be granted, I respectfully completely reject the proposition that orders 2, 3 and 4 should be made.
A great deal of criticism has been made by [the wife] of her trustee in bankruptcy. But on the material placed before me, even giving it an expansive reading, I do not accept that I should make these kinds of orders at all.
I also think that, in light of bankruptcy being an exclusively federal jurisdiction, and the fact that there has been voluminous litigation going on for years in federal courts, I think it would be extraordinarily incautious if I, on the run, as it were, made an injunction as sought in orders 2 and 3.
In a similar vein, I do not have any intention, respectfully, of removing the caveat which is attacked in order 4. Really, I have no state of mind to the contrary that, really, the trustee is just doing their job.
I am the first to accept that this state of affairs of longstanding litigation has been distressing to [the wife]. I also accept the imminent loss of real property is distressing. I am also aware from previous litigation, if I may say so and she has referred to this today, about the distressing circumstances pertaining to her son.
But, to repeat myself, I think it would be incautious, inappropriate, precipitous and contrary to established principle for me to make orders 2, 3 or 4 and.
Accordingly, that part of the motion is dismissed.
On 22 February 2023, the trustee filed a motion in the Supreme Court seeking that the wife's statement of claim be summarily dismissed as disclosing no reasonable cause of action and/or that the proceeding was not abusive process.
On 6 March 2023, the wife filed a second motion in the Supreme Court seeking summary judgment in her favour or in the alternative, leave to file an amended statement of claim. She additionally sought a not dissimilar injunction from that in the first motion restraining the trustee from selling the same real properties and an anti-suit injunction restraining the trustee from enforcing the orders made in this proceeding on 13 February 2023, including by way of this court enforcing its own orders. She further sought orders that:
8Impugn the ex-parte orders of Brisbane family court in BRC 8518/2020 of 13 February 2023
9Impugn the orders of Brisbane family court in BRC 8518/2020 of 27 April 2022
10Impugn the sequestrian order against [the wife] of 30 September 2016 in Federal Circuit Court Sydney in SYG 235/2015
…
13Refer first defendant [the trustee] and his lawyer [Mr GG] pursuant to Supreme Court Rules 1970 s 55.11 to the Registrar for contempt of court.
…
15Order that [the trustee] and [WW Company] be restrained by a perpetual injunction from any further dealings with [the wife’s] bankrupt estate.
16A copy of the above orders to be provided to AFSA, Australian Financial Security Authority, and the Land Titles Office NSW
That part of the wife’s second motion seeking injunctive orders against the trustee was dismissed by Sweeney J on 27 April 2023. The wife was ordered to pay the defendants costs.
A timetable was directed as to pleadings and the filing of affidavit evidence as to the balance of the competing motions as remaining on foot in the Supreme Court.
On 27 October 2023, the wife filed an amended motion in the Supreme Court seeking injunctive orders against the trustee from selling the Suburb C, Queensland property or the K State, USA property and an injunction restraining the trustee from “enforcing eviction” of the wife from the Suburb C property. The wife obtained leave to prosecute what was the third motion for relief sought against the trustee of this character.
All outstanding motions in the Supreme Court were heard by Schmidt AJ in late 2023. Judgment was reserved.
Judgment was delivered and orders made by Schmidt AJ in late 2023. The following orders were made:
(1)[The wife] is given leave to amend her March 2023 motion by her late filed October motion.
(2)[The wife’s] original statement of claim is struck out
(3)[The wife] file and serve any further motion seeking leave to file any further amended statement of claim on or before 1 February 2024, together with a supporting affidavit.
(4)[The trustee] inform [the wife] within 7 days of service whether the leave thereby sought will be consented to or opposed.
(5)[The wife] bear [the trustee’s] costs of her motions, as agreed or assessed.
(6)The hearing of [the trustee's] motion is adjourned to be heard and finally determined together with any further motion seeking leave to replead which [the wife] may file.
(7)Costs of [the trustee’s] motion are reserved.
(8)The matter be transferred to the Equity Division.
(9)The matter is adjourned for further directions at 9.30am on 12 February 2024 before Kunc J.
The reasons of Schmidt AJ record the deficiencies in the wife’s proposed amendment statement of claim in seeking to impinge judgements of this court and its failure to comply with requirements of the Uniform Civil Procedure Rules 2005 (NSW). The wife has been accommodated with a final indulgence to re-plead her claim.
The reasons explore:
(a)the prospects of the resistance by the wife of the enforcement by the trustee of the raft of current unsuccessfully appealed orders of this Court; and
(b)the wife’s three unsuccessful Supreme Court motions seeking to restrain the trustee from selling the Suburb C property or enforcing the orders of this Court; and
(c)the numerous very serious allegations of wrongdoing and criminal offending made by the wife as against the trustee.
Future listings in the proceeding in this forum
The final property trial as between the husband and the wife is currently part heard before Jarrett J and next listed for directions on 15 December 2023.
There have been 39 court events, eight first instance judgments and three appeal court judgments in this matter.
These reasons assume familiarity with those delivered on 20 November 2023 dismissing the wife’s application to adjourn some portions of the relief sought in her Application in a Proceeding and to prosecute others on that day (see Lahiri & Saha (No 7) [2023] FedCFamC1F 999).
THE RELIEF SOUGHT BY EACH PARTY
The wife by way of an Application in a Proceeding filed on 28 September 2023 and sealed by the Court on 4 October 2023 sought:
1.Set aside the ex-parte orders of a judicial registrar of 13 September 2023 pursuant to Federal Circuit and Family Court of Australia (Family Law) Rules 14.05 and 10.13(1)(a)
2. Transfer proceedings BRC8515/2020 to Family Court Sydney
3.This application is to be listed in Sydney, and not before Jarret J, only after notifying the applicant to her email address on this application and checking her available dates
4. Dismiss the second respondent’s application for costs
5. Refer the applicant in this application Ms Saha for a pro-bono barrister
6. Any other orders this Court sees fit.
The husband served a Response to an Application in a Proceeding dated 17 November 2023 on that day with his affidavit. The parties understood the Response to an Application in a Proceeding had been filed on that day. It was not visible on the court portal. The Rules are dispensed with such that the Response to an Application in a Proceeding will be treated as if it is filed. The husband’s affidavit filed on that day was visible as being filed at 4.38pm. It was uncontroversial that the husband’s relief by way of his Response to an Application in a Proceeding sought:
1. The Application in a Proceeding is dismissed.
2.The Applicant pay the costs of the First Respondent of an incidental to this application on an indemnity basis.
3.The Applicant is prohibited from filing any Application within the Federal Circuit and Family Court of Australia without the leave of the Court.
The trustee by way of a Response to the Application in a Proceeding filed 17 November 2023 sought:
1.The Application in a Proceeding filed on 28 September 2023 be dismissed.
2.The Applicant pay the Second Respondent’s costs of the Application in a Proceeding filed on 28 September 2023.
The third to fifth respondents did not participate in or appear on the hearing of the wife’s Application in a Proceeding.
Matters agreed during the hearing on 20 November 2023
The Outline of Case of the trustee accepted that Order 1 as sought in the wife’s application in a proceeding sought a review of the orders made by the Judicial Registrar on 13 September 2023 notwithstanding such relief by way of review was made on the incorrect form. No issue was taken as to the relief by way of review being filed within the time specified pursuant to the Rules.
The wife conceded that the relief as sought pursuant r 10.13(1)(a) was of no utility as her application for review of the orders made by the Judicial Registrar on 13 September 2023 would proceed by way of an original hearing. The relief pursuant to r 10.13(1)(a) in her Application in a Proceeding was accordingly abandoned as futile.
The wife also abandoned the relief identified paragraph 5 of her Application in a Proceeding.
The husband was granted leave to withdraw his relief in paragraph 3 of his Response to an Application in a Proceeding seeking that the wife be declared a vexatious litigant (pursuant to s 102QB of the Act), in circumstances where it was served on the wife on the evening of the last business day before the hearing. The husband was granted leave to file such further application pursuant to s 102QB by filing an Application in a Proceeding on such terms as he is advised.
The wife and the trustee agreed that as the enforcement orders as made by the Judicial Registrar was the subject of review by way of an original hearing, any application for costs of the said Application – Enforcement before the Judicial Registrar would be determined as part of any determination as to the costs of the review hearing.
CONSIDERATION
The Review
Rule 14.07 of the Rules sets out the power of the Court on review from an order of a Judicial Registrar is to be exercised by way of an original hearing.
By an Application for Enforcement filed 27 March 2023, the trustee sought relief securing Order 1 made by Jarrett J on 13 February 2023 to achieve possession to the exclusion of the wife of the Suburb C property and that the wife vacate that property within 28 days of the primary orders (that would have been by 23 March 2023).
The wife conceded that she continues to occupy the Suburb C property as at the date of the hearing on 20 November 2023.
The wife forcefully submits that the orders made by Jarrett J on 13 February 2023 “cannot be enforced until the Supreme Court rules on whether [the trustee] is in breach of trust. She contends that the trustee “has no debts, provable in bankruptcy pursuant to s 82 of the Bankruptcy Act to support the enforcement orders, claiming over $1 million from my superannuation fund seven years after a forced bankruptcy for only $12,000, so the court may find [the trustees] alleged debts are not provable in the bankruptcy.” The gravamen of this submission, as I understand it, is that the wife contends she has a strong case in the Supreme Court to set aside the bankruptcy and hence will be prejudiced if the Suburb C property held by the superannuation fund is liquidated and monies applied to the bankrupt estate pursuant to the primary Orders made 13 February 2023 because there is no outstanding debt due to the bankrupt estate. For the reasons recorded earlier as to the orders and judgment delivered in the Supreme Court and for those that follow as to the appeal processes in this forum being exhausted, I do not accept any parts of those submissions.
The wife said that she has “effectively retired,” is unable to work, and hence is entitled to her superannuation by living in the house at Suburb C. It is her further submission that she will suffer undue hardship if she is “evicted from my home” in circumstances where the husband and the trustee have “stolen everything I own”. She said that the costs order made in favour of the trustee by Jarrett J in favour of the trustee is claimed in the vicinity of $215,000 and that the trustee’s engagement in the litigation in this forum was a “cost scam’. I accept that the wife will encounter some hardship should she vacate her home of the last 19 years.
The wife says that proceedings will soon be commenced in the Federal Court, and this is a further reason to exercise the discretion not to enforce the primary orders made 13 February 2023. I do not accept this submission. In her judgement (at [13]) Schmidt AJ said that the Federal Court maybe a possible forum in the future dependant on the terms of the wife’s claim, if successfully amended, and the terms of her relief sought.
Section 105 of the Act provides the Court with a discretion to enforce its orders. The rules identified by the Judicial Registrar set out the relief available to enforce primary orders relating to real property and need not be repeated.
The wife’s application for review of the orders made by a Judicial Registrar will be dismissed because:
(a)The wife’s application for an exercise of discretion that this court does not enforce its own order is, in reality, either:
(i)another application for the stay of the primary orders made 13 February 2023, such application being refused on 23 February 2023 and an appeal from that refusal dismissed by the Full Court; or
(ii)the relitigating of the three unsuccessful motions pursued by the wife to date in the NSW Supreme Court to injunct the trustee from exercising the fruits of the order achieved on 13 February 2023 or by way of anti-suit injunction, each dismissed as having no merit. It is prima facie an abuse of process to bring repeated applications as to the same subject matter grounded from the same evidence or contentions on each occasion;
(b)There is no pleaded case on foot by any party in the Supreme Court litigation. That will be the subject of determination by Kunc J at the directions hearing on 12 February 2024. The future progress of that litigation may conclude on that day or may continue well into the foreseeable future in that forum. The wife did not put into evidence her proposed further amended draft statement of claim. The wife proffers no materially different evidentiary foundation to ground any assessment as to her likelihood of establishing the serious allegations made in that forum from that which it has rejected to date; and
(c)Hence, a salient consideration is whether it would be futile to grant a stay of enforcement or to decline to enforce this court’s own primary order. The Supreme Court has determined that the claim as articulated by the wife to date is either incompetent or evince so little ostensible merit that they lack reasonable prospects of success. The wife’s challenges to the primary Orders made 13 February 2023 and 23 February 2023 in this forum by way of appeal have been exhausted. The judgment in favour of the trustee identified in Order 7 made on 13 February 2023 in the sum of $853,875 remains outstanding; and
(d)The order for the wife to vacate the Suburb C property made by Jarrett J has been in breach for almost eight months. By way of a less favourable construction, the wife has been required 60 days after the s 139ZQ Bankruptcy Act Notice issued on 4 June 2020 (see [10] Saha & Lahiri (No 3) (2023) FLC 94-158) to surrender possession of the Suburb C property to the trustee for it to be realised in the process of securing and administering the bankruptcy, being a period now of three years and three months. I accept that the trustee has obligations to appropriately pursue the property of the bankrupt. There is no apparent alternate source for the trustee to satisfy the judgment in its favour against the third respondent trustee of the parties’ superannuation fund; and hence
(e)In all the circumstances it is nonsensical for this Court not to enforce its own orders.
The wife’s Application for Review of the orders made by way of enforcement by the Judicial Registrar will be dismissed. The time for the wife to vacate the Suburb C property pursuant to the primary orders made 13 February 2023 and as extended by the orders made 13 September 2023 has expired. The wife will require a short period to vacate the property absent the necessity of the intervention by the prescribed authorities. The period of a further period of four months to surrender possession as sought by the wife is unreasonable in circumstances where she had now had close to eight months to make such arrangements. An order will be made that the wife vacate the property within 14 days.
The relief sought in paragraph two of the Application in a Proceeding
The wife prosecutes an order implicitly to disqualify a Federal Circuit and Family Court of Australia Division 1 Judge from continuing to conduct the hearing of a part heard property case. Her submissions expressed a contention as to Jarrett J exhibiting bias. The wife did not identify as to the contended bias as being actual or apprehended, each such serious contention being established from different principles and factual environments. Longstanding authority establishes that allegations as to bias must be distinctly made and clearly proved. Cogent evidence of bias is required.
The wife identified in written submissions two instances which she believed grounded the bias claim, these were:
(a)That she had been refused leave to appear by electronic means at all hearings since September 2022 by Jarrett J, whilst “all other parties” have been granted leave to appear by electronic means without making such application; and
(b)That during the 3 November 2023, Jarrett J made a comment that he “can give 100% of [the wife’s] superannuation fund” to the husband.
In terms of the first contention, the wife exhibited to her 24 March 2023 affidavit numerous Annexures of communications with the court, some of which included the chambers of Jarrett J rejecting her request to appear via electronic means, and then others allowing other parties to appear by electronic means. Without further explanation as to how this demonstrates bias, copies of email alone do not amount to an apprehension of, or actual, bias.
In relation to the second matter that the wife states give rise to bias, at its highest, the contended statement was no greater than her assertion. She did not put any transcript in to evidence to give context if the statement was made. Counsel appeared for the wife on 3 November 2023. No application was made to Jarrett J by counsel to disqualify himself at that time or thereafter.
While it is accepted that there is no formal procedure to determine a bias disqualification application, the seriousness of the allegation dictates that where the judge subject to the allegation is available to determine it, such application should be made to that judge (see Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337).
In the circumstances of this case, where the property trial is part heard before Jarrett J, any application to be prosecuted by the wife in terms of paragraph two as sought in her application in a proceeding ought to have been made before Jarrett J. For that reason, and in the circumstances of the absence of persuasive evidence to support the application, the relief sought will be refused.
The transfer of the proceedings BRC8518/2020 to the Federal Circuit and Family Court of Australia Division 1 from Brisbane to Sydney
Rule 9.05(5) sets out the considerations applicable to the transfer of proceedings:
(5)In deciding whether to transfer a proceeding under subrule (1), the transferring court may consider the following:
(a) the public interest;
(b) the financial value of the claim;
(c)the complexity of facts, legal issues, remedies and procedures involved;
(d) whether the proceeding, if transferred, is likely to be dealt with:
(i) at less cost to the parties; or
(ii) at more convenience to the parties; or
(iii) earlier;
(e)the availability of a judicial officer specialising in the type of proceeding to which the application relates;
(f) the availability of particular procedures appropriate for the class of proceeding;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns;
(h) the wishes of the parties.
The wife’s evidence failed to engage with most of these considerations. She repeated her complaint as to Jarrett J refusing some of her applications to appear by electronic means at hearing events, while acceding to similar applications by the trustee. She said that her health challenges permitted her to travel to Sydney to attend court events, such as attending the Civil and Administrative Tribunal (NSW) on 10 November 2023 regarding the guardianship order for the parties’ son. She said she had received a specialist medical opinion as to risks to her health should she travel to Brisbane.
Both the husband and the trustee opposed the transfer order, identifying an absence of evidentiary foundation to support it.
Identical relief was sought by the wife and refused on 23 February 2023. That circumstance, in and of itself, is sufficient to refuse the same application made essentially on the same factual basis. Additionally, it is not a proper exercise of discretion to transfer the venue of proceeding a part heard before another judge. The wife’s application for transfer of the proceedings to the Sydney registry will be refused. If pressed in the future, any application for transfer ought be made before the part heard judge.
There is nothing that prevents the wife from making a future application, as she is advised, to attend electronically at a hearing, especially in circumstances where she has the benefit of a s 102NA grant in anticipation of her counsel appearing in person at trial. There is no evidence to suggest that any judge hearing that application if made would not determine it on its merits.
COSTS
As advised during the hearing, I have read the written submissions of the trustee as to costs as sought by the trustee of the Application – Enforcement determined by the Judicial Registrar on 13 September 2023. The trustee sought costs on a discounted to 70 per cent on a party and party basis fixed in the sum of $9,760 of the Application for Enforcement filed 27 March 2023 up to the time it was determined by the Judicial Registrar. He additionally sought the costs of his response to the wife’s Application in a Proceeding assessed on a party and party basis fixed in the sum of $10,800, hence a total of $20,560.
The husband seeks costs of his Response to the wife’s Application in a Proceeding at scale. By way of items 3 and 13 in Sch1 1 to the Rules, this. This totals $3,142.
The wife opposes any order for costs, or in the alternative submits that any costs “be costs in the cause”.
Applications for costs in this Court are the exception to the rule. While the starting position established by s 117(1) of the Act is that each party pays their own costs, s 117(2) permits the Court to make such orders as to costs as it considers just, if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act insofar as they are relevant.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs.
Engaging with those s 117(2A) factors that are relevant in this matter:
(a)The financial circumstances of each of the husband and wife are not in evidence in this Application. That said, the wife confirmed that she is not engaged in employment. Each of them implicitly has little property to be adjusted save their interest in their superannuation fund. The value of their interests in the fund, after payment to the trustee of the judgment debt, costs and interest, is unknown.
(b)Each of the husband and the wife are in receipt of a grant of Legal Aid pursuant to s102NA Family Violence and Cross-examination of Parties Scheme. The solicitor for the husband was of the view that any costs order achieved by the husband may be required to be remitted in whole or in part to the administrators of the scheme.
(c)The current review of an enforcement order was necessitated by way of a failure of the wife to comply with primary orders for enforcement not disturbed on appeal. She sought a listing of the enforcement process and then failed to attend at the hearing before the Judicial Registrar. In the circumstances of this case, this factor in and of itself is a justifying circumstance to order costs.
(d)The wife has been wholly unsuccessful in her Review Application and in the other relief as sought in her application in a proceeding. It was misconceived and ought never to have been filed, especially in the shadow of her serial repeated failures in the Supreme Court. This is also, in and of itself, is a justifying circumstance to order costs.
(e)The wife in both this forum, and the Supreme Court, has exhibited a propensity to litigate absent responsibility. The provisions of r 1.04 oblige litigants to conduct litigation in a reasonable and proportionate way. I find that the wife was cavalier in complying with these obligations electing to proceed without meaningful regard to the legal expenses she would risk in the event she was unsuccessful. Her conduct ought not receive a modicum of endorsement.
For the above reasons, I find that there are justifying circumstances for an order for costs in favour of each of the husband and the trustee.
Rule 12.17(a) permits the Court to adopt a course to fix costs, although it is accepted that it is entirely a matter of discretion. The property litigation between the husband and the wife is continuing. It is inevitable that any process of assessment of costs would itself involve considerable further costs and delay. I have considered the amounts claimed by way the trustee for party and party costs at scale and the basis for their calculation. I am satisfied that it is appropriate to fix costs grounded from the basis of their calculation so as to make an assessment and order. The quantum of costs sought by the husband is by application of the scale.
It is otherwise just in the circumstances to fix the costs in the sums as sought by the husband and the trustee. The usual period of 28 days to pay costs ought to apply. Orders will be made accordingly.
I certify that the preceding eighty (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 22 November 2023
2
6
5