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Rahman v Rahman

Rahman v Rahman

Case [2024] NSWSC 1616 28 November 2024

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Supreme Court

New South Wales

Medium Neutral Citation: Rahman v Rahman [2024] NSWSC 1616
Hearing dates: 7, 14 and 28 November 2024
Date of orders: 28 November 2024
Decision date: 28 November 2024
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision:
Judge declines to disqualify himself from further involvement in the proceedings. Wife removed as trustee for sale of the two properties and independent trustees for sale appointed in her place.

Catchwords:
EQUITY – Trusts and trustees – Court’s supervision of – Appointment and removal of trustees – matrimonial dispute – in March 2023 the Family Court of Australia upon the making of final property in relation to matrimonial property appoints a wife as trustee for sale of two jointly owned matrimonial properties – continuing conflict between the wife and the husband and neither property sold by November 2024 – wife has an AVO against the husband – wife occupies one of the two properties – wife tries to sell the other property and the couple’s daughter claims to have purchased it – husband places caveat on titles to the properties – wife seeks removal of the caveat – continuing conflict likely – whether the wife should be removed as trustee for sale – whether the husband should be appointed in place of the wife – whether independent trustees for sale should be appointed.
COURTS AND JUDGES – Bias – Apprehended bias – self represented litigants – husband seeks judge’s disqualification from further involvement in the proceedings – whether the judge conducted the proceedings in a manner such that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

Legislation Cited:
Civil Procedure Act2005 (NSW), Part 6
Conveyancing Act1919 (NSW), s 66G

Cases Cited:
Cristovao v Butcher Paull & Calder [2006] WASCA 184
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Elovalis v Elovalis [2008] WASCA 141
Gilmour Finance Pty Ltd v Aesthete Pty Ltd [2022] NSWCA 279
Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66
Hancock v Reinhardt (2015) 106 ACSR 207; [2015] NSWSC 646
Ngarluma Aboriginal Corporation v RNTBC v Attorney-General(WA) (2014) 14 ASTLR 164; [2014 WASC 245
McKenzie v McKenzie [1971] P 33; [1970] 3 WLR 472; [1970] 3 All ER 1034
Miller v Cameron (1936) 54 CLR 572
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Schagen v The Queen (1993) 8 WAR 410 at 412

Category: Procedural rulings
Parties: Mr Fahmid Rahman (Plaintiff)
Ms Mita Rahman (Defendant)
Representation:
Mr F Rahman (in person)
Ms M Rahman
Mr H Gilmore (next friend of Ms M Rahman)

File Number(s): 2024/374705
Publication restriction: N/A

JUDGMENT

On 24 March 2023 the Federal Circuit and Family Court of Australia made orders giving effect to a final property settlement between the defendant in these proceedings, Ms Mita Rahman, the wife, and the plaintiff, Mr Fahmid Rahman, the husband. Those orders included…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rahman v Rahman

Details

AGLC: Rahman v Rahman [2024] NSWSC 1616
Case: [2024] NSWSC 1616
Decision Date: 28 November 2024

CaseChat Overview and Summary

In the matter of Rahman v Rahman, the Family Court of Australia is confronted with a complex dispute involving the management and sale of jointly owned matrimonial properties. The parties, Mr. and Mrs. Rahman, are embroiled in a continuing conflict following the court's appointment of Mrs. Rahman as trustee for the sale of two properties in March 2023. By November 2024, neither property has been sold, with Mrs. Rahman occupying one of the properties and attempting to sell the other, while their daughter claims to have purchased it. Adding to the complexity, Mr. Rahman has placed caveats on the titles of the properties, and Mrs. Rahman holds an apprehended violence order (AVO) against him. The court is tasked with deciding whether Mrs. Rahman should be removed as trustee for sale, whether Mr. Rahman should be appointed in her place, and whether independent trustees should be appointed instead.

The central legal issues before the court revolve around the proper administration of the trust for sale, the appropriateness of Mrs. Rahman's continued role as trustee given the ongoing conflict, and the implications of Mr. Rahman's conduct in placing caveats on the properties. Additionally, the court must consider Mr. Rahman's application for the judge's disqualification due to alleged apprehended bias, arguing that the judge's conduct in previous proceedings might lead a fair-minded lay observer to doubt the judge's impartiality.

The court's reasoning centres on the need for an impartial and effective administration of the trust for sale, particularly in the context of the ongoing conflict between the parties. The court acknowledges the importance of ensuring that the trustee can carry out their duties without undue interference or conflict of interest. While considering Mr. Rahman's application for the judge's disqualification, the court examines the judge's conduct in detail, ultimately concluding that there is no basis for the apprehension of bias. The court finds that Mrs. Rahman's continued role as trustee is not conducive to the efficient sale of the properties due to the persistent conflict, and therefore, orders that independent trustees be appointed for the sale of the properties. The court dismisses Mr. Rahman's application for disqualification, reaffirming its commitment to impartiality and the fair resolution of the dispute.

In summary, the court orders the removal of Mrs. Rahman as trustee for sale of the matrimonial properties and the appointment of independent trustees. The court also dismisses the application for the judge's disqualification, finding no basis for apprehended bias. The orders are designed to ensure the properties are sold efficiently and without further conflict.

Orders