Pirani & Pirani (No 5)

Case [2025] FedCFamC1F 149

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pirani & Pirani (No 5) [2025] FedCFamC1F 149

File number: SYC 3987 of 2023
Judgment of: CHRISTIE J
Date of judgment: 28 February 2025
Catchwords:

 FAMILY LAW– Application in a proceeding – Vacation of hearing date – Where the applicant seeks to vacate a hearing date - Where this application to vacate is opposed by most of the respondents - Application to vacate is dismissed

CORPORATIONS LAW - Leave to continue court proceedings against a company as per the requirements of 471B of the Corporations Act - Leave granted.

FAMILY LAW - PRACTICE AND PROCEDURE - Application under s 102NA of the Family Law Act 1975 (Cth) - Where none of the mandatory provisions of s 102NA(1)(c)(i), (ii), or (iii) apply - 102NA order not made as there was no mandatory or discretionary basis for such an order.

FAMILY LAW - PROPERTY - Sale of property - Where the Applicant seeks an order requiring the sale of jewellery - Where a respondent claims a lien over this jewellery - Orders made to list the jewellery for sale and hold the generated money in a controlled trust account.
Legislation:

Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Duarte & Morse (No 4) [2024] FedCFamC1A 95

Elgin and Elgin [2015] FamCAFC 155
Division: Division 1 First Instance
Number of paragraphs: 56
Date of hearing: 28 February 2025
Place: Sydney
Counsel for the Applicant: Mr Todd
Solicitor for the Applicant: Thurlow Fisher Lawyers
1st Respondent: Litigant in person
Counsel for the 2nd, 5th & 6th Respondents: Mr Pesman SC
Solicitor for the 2nd, 5th & 6th Respondents: Harris Freidman Lawyers
Counsel for the 7th Respondent: Mr Foster (direct brief)
Counsel for the 9th Respondent: Mr Beaumont SC with Mr Hollo
Solicitor for the 9th Respondent: Fairmont Legal
Counsel for the 14th Respondent: Mr Knackstredt
Solicitor for the 14th Respondent: ZZ Lawyers
The 3rd, 4th, 8th, 10th, 11th & 12th Respondents: Did not participate

ORDERS

SYC 3987 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS PIRANI

Applicant
AND:

MR PIRANI

First Respondent

B PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:

1.Leave is granted (to the extent necessary) pursuant to s 471B of the Corporations Act to continue proceedings as against the 2nd, 5th and 6th respondents.

2.Leave is granted to the applicant to file and serve an Amended Initiating Application on or before 5 March 2025.

3.Time for compliance with order…

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AGLC
Pirani & Pirani (No 5) [2025] FedCFamC1F 149
Case
[2025] FedCFamC1F 149
Decision Date

CaseChat Overview and Summary

The matter before the court involves an application by Ms Pirani to vacate the hearing date of a family law proceeding, as well as a request for an order requiring the sale of jewellery and a declaration under section 102NA of the Family Law Act 1975 (Cth). The application was opposed by several respondents, including Mr Pirani, B Pty Ltd, and others. The court was also asked to grant leave to continue court proceedings against a company as per the requirements of 471B of the Corporations Act. The legal issues before the court included whether the application to vacate the hearing date should be granted, whether an order under section 102NA of the Family Law Act should be made, and whether leave should be granted to continue proceedings against a company. The court's reasoning focused on the need for timely finalisation of all matters before the court and the overarching purpose of facilitating the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible. Given the commercial realities of the case and the lack of a satisfactory explanation for seeking the adjournment, the court found that the application to vacate the hearing date should be dismissed. The court also found that there was no mandatory or discretionary basis for making a 102NA order and thus, such an order was not made. Regarding the sale of jewellery, the court ordered that the jewellery be listed for sale and the proceeds held in a controlled trust account pending further agreement or orders of the court. The court granted leave to continue proceedings against a company as per the requirements of 471B of the Corporations Act and granted leave to the 14th respondent to amend the Application in a Proceeding filed on 15 November 2024. The costs of the 2nd - 6th, 9th - 13th and 14th respondents of today's application were reserved.

Orders

Orders of the court

SYC 3987 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS PIRANI

Applicant

AND:

MR PIRANI

First Respondent

B PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS THAT:

1. Leave is granted (to the extent necessary) pursuant to s 471B of the Corporations Act to continue proceedings as against the 2nd, 5th and 6th respondents.

2. Leave is granted to the applicant to file and serve an Amended Initiating Application on or before 5 March 2025.

3. Time for compliance with order 6 of the Orders of 30 September 2024 is extended to 4:00 pm 7 March 2025.

4. Time for compliance with Order 3 of the Orders of 30 September 2024 is extended to 4:00 pm 7 March 2025.

5. Time for compliance with Order 5 of the Orders of 30 September 2024 is extended to 4:00 pm 7 March 2025.

6. Within seven days from the date of these orders, the 7th respondent do all acts and things and sign all documents necessary to release the jewellery held by the 7th respondent at AB Pty Ltd in respect of which the 7th respondent asserts a general lien to either AC Auction House, AD Auction House or AE Auction House, for the purpose of listing the jewellery for sale, on the following basis:

(a) The Auctioneer is to be appointed by the applicant and 7th respondent jointly in writing (from the three above); and

(b) The proceeds of the sale of the jewellery are to be held in a controlled money trust account with Thurlow Fisher Lawyers on behalf of the husband and wife pending further agreement or orders of the Court.

7. The application filed 14 February 2025 and each of the responses to that application are otherwise dismissed.

8. The response of the 7th respondent filed 27 February 2025 is adjourned to 18 March 2025 at 10:00 am.

9. Leave is granted to the 14th respondent to amend the Application in a Proceeding filed on 15 November 2024.

10. The costs of the 2nd - 6th, 9th - 13th and 14th respondents of today's application are reserved.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

In addition to the order to vacate the hearing date the wife seeks that the court make a declaration that the provisions of s102NA of the Family Law Act (1975) (Cth) (“the Act”) apply to cross-examination in these proceedings.RELEVANT BACKGROUND The proceedings were filed on 5 June 2023. The matter was listed for final hearing by order dated 19 November 2024. All parties – except for the wife have indicated they are in a position to proceed. Helpfully, the affidavit which was filed on behalf of the 2nd, 5th & 6th respondents sets out in summary form their understanding of the assets, liabilities, superannuation and financial resources of the husband and wife. It accords with submissions which were made to me today about the mathematics which apply. I set out in table form the contents of that summary. It is apparent that if the 9th respondent is successful in establishing his claim to the funds available, the surplus will be inadequate to meet the claim made by the 2nd, 5th and 6th respondents. It is also salient to note the following debts are claimed by the interveners who have represented the wife in these proceedings:(a)$839,111.15 in legal fees said to be owed to AF Lawyers (8th respondent);(b)$500,000 in legal fees said to be owed to ZZ Lawyers (14th respondent);(c)$450,000 in legals fees said to be owed to Ms OO (7th respondent). If the claims of the 9th, 2nd, 5th& 6th respondents are established they will exhaust the funds available not only from the sale of the Suburb G property but also from property in the wife’s name. I acknowledge that the wife intends to argue that various of the transactions which create the liabilities (excluding legal fees), at least in respect of ZZ Lawyers and AF Lawyers are shams. In recent times the 12th respondent has filed a Submitting Notice and the 11th respondent has filed a Notice of Discontinuance. This would appear to be a recognition on the part of those persons/entities of the commercial realities of this case.CONSIDERATION An application to vacate a hearing date is an exercise of the case management powers of the court. The court in making such decisions is weighing the competing interests of the individual litigants in the proceeding before the court against the public policy considerations of ensuring timely finalisation of all matters before the court. It is not in doubt that the Court has the power to adjourn the trial dates: Rule 1.06, Table 1 item 3(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). Section 67(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides:The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

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

In recent times the 12th respondent has filed a Submitting Notice and the 11th respondent has filed a Notice of Discontinuance. This would appear to be a recognition on the part of those persons/entities of the commercial realities of this case.CONSIDERATION An application to vacate a hearing date is an exercise of the case management powers of the court. The court in making such decisions is weighing the competing interests of the individual litigants in the proceeding before the court against the public policy considerations of ensuring timely finalisation of all matters before the court. It is not in doubt that the Court has the power to adjourn the trial dates: Rule 1.06, Table 1 item 3(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). Section 67(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides:The civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1), must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. The overarching purpose is identified as:…to facilitate the just resolution of disputes:(a) according to law; and(b) as quickly, inexpensively and efficiently as possible. The words “quickly” and “efficiently” are self-explanatory. The same overarching purpose is referred to in ss 95 and 96 of the Act. As the High Court said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175:In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried. These principles have been the subject of recent discussion in the appellate division of this court. In Duarte & Morse (No 4) [2024] FedCFamC1A 95 the Full Court of the Family Court (Austin, Hartnett and Brasch JJ) said at (56): Decisions about adjournments are pre-eminently interlocutory decisions on matters of practice and procedure which must often be made speedily. Avoidance of undue delay and the efficient use of public resources are considerations which may transcend the interests of the parties. The times are long gone when parties are left to control the course of litigation. The resolution of litigation serves the public as a whole, not merely the parties (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 189–190, 211–215, 217 and 227).