Lahiri & Saha (No 8)

Case [2023] FedCFamC1F 1000

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…

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AGLC
Lahiri & Saha (No 8) [2023] FedCFamC1F 1000
Case
[2023] FedCFamC1F 1000
Decision Date

CaseChat Overview and Summary

Ms Saha applied for an extension of time to comply with the property enforcement order and for the matter to be transferred to a different judge. The application was opposed by Mr Lahiri and Mr Feltos. The application was dismissed, the time for compliance with the order was extended, and Ms Saha was ordered to pay costs to the respondents. Ms Saha argued that the bankruptcy trustee, Mr Feltos, was in breach of trust and that the orders could not be enforced until the Supreme Court ruled on this matter. The court rejected this argument and ordered Ms Saha to vacate the property by 7 December 2023. If she failed to do so, a warrant for possession was to be issued. Ms Saha also argued that the costs claimed by Mr Feltos were excessive and that his engagement in the litigation was a "cost scam." The court rejected this argument and ordered Ms Saha to pay costs to Mr Feltos.

The court considered the arguments of the parties and the relevant law. The court found that the bankruptcy trustee was not in breach of trust and that the orders could be enforced. The court also found that the costs claimed by Mr Feltos were reasonable and that his engagement in the litigation was not excessive. The court ordered Ms Saha to pay costs to Mr Feltos and the husband.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

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

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.CONSIDERATIONThe 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.