Rahman v Rahman (No 2)

[2025] NSWCA 194

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rahman v Rahman (No 2) [2025] NSWCA 194

Hearing dates:

21 August 2025

Date of orders:

21 August 2025

Decision date:

21 August 2025

Before:

Price AJA

Decision:

(1)   Dismiss the notice of motion filed on 18 August 2025.

(2)   The applicant is to pay the first and second respondents’ costs.

Catchwords:

CIVIL PROCEDURE – application for expedition – significant delay in bringing application – application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57

Supreme Court Act 1970 (NSW), s 46

Uniform Civil Procedure Rules 2005 (NSW), rr 51.12, 51.58

Cases Cited:

Collier v Lancer [2013] NSWCA 185

Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 153

Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395

Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260; (2008) 176 IR 426

Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67

NSW Smallbore and Air Rifle Association vCommonwealth of Australia [1996] NSWCA 405

Rahman v Rahman [2025] NSWCA 126

Unilever plc v Chefaro Proprietaries Ltd [1995] 1 All ER 587

Valuer-General of New South Wales v In Adam Pty Ltd [2011] NSWCA 306

Category:

Procedural rulings

Parties:

Fahmid Rahman (Applicant) (self-represented)
Mita Farjina Rahman (First Respondent)
Stefano Calabretta and Andrew Fleming (Second Respondent)

Representation:

Counsel:
J Brown (First Respondent)

Solicitors:
Marsdens Law Group (First Respondent)
Fleming Law Pty Ltd (Second Respondent)

File Number(s):

2025/202852

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Real Property

Citation:

[2024] NSWSC 1616; [2025] NSWSC 801

Date of Decision:

28 November 2024; 16 December 2024; 18 February 2025; 9 April 2025; 14 May 2025; 18 July 2025

Before:

Slattery J

File Number(s):

2024/374705

Ex TEMPORE JUDGMENT

1. PRICE AJA: The applicant, Fahmid Rahman, by notice of motion filed on 18 August 2025 (“expedition motion”) has brought an application seeking the expedition of his notice of motion filed on 15 August 2025 (“August motion”).

2. The orders sought by the applicant in his expedition motion are:

“1.   That the [applicant’s] Notice of Motion filed on 15 August 2025 be listed for urgent hearing prior to 23 August 2025.

2.   Alternatively, that interim protective orders be made forthwith, namely:

a.   The trustees be restrained from taking any steps to market, auction, or otherwise dispose of … [Property 1A in Roselands], pending determination of the appeal or further order.

b.   Such further or other orders as the Court deems appropriate in the interests of justice.”

3. The applicant’s amended summons seeking leave to appeal filed on 4 June 2025 and notice of motion filed on the same day (“June motion”) are all listed to be heard in the Court of Appeal in less than 3 weeks on 10 September 2025.

4. It is apparent that the principal relief sought in the August motion is similar to that in the amended summons and the June motion. The complaints raised by the applicant in those documents relate to a number of judgments by Slattery J (“the primary judge”) in the primary proceedings in the Equity Division of the Supreme Court of New South Wales, and the dismissal of the applicant’s motion heard in the referrals list by Adamson JA, as a single judge of this Court, on 2 June 2025, where her Honour refused to grant a stay of various matters sought by the applicant pending the hearing of his appeal. Relevant to the expedition motion is that the applicant has already sought before Adamson JA, and was refused, a stay which would halt the sale by the second respondent, who are the trustees appointed by the primary judge in December 2024, of two properties in Roselands referred to as “Property 1” and “Property 1A” in Rahman v Rahman [2025] NSWCA 126 (“Rahman No 1”).

5. As Adamson JA explained in Rahman No 1 at [17], sitting as a single judge of this Court, I cannot set aside any of the substantive orders made by the primary judge and neither can I make the relief sought in Order 2 of the expedition motion which is what the applicant characterises as “interim protective orders”, since that would impermissibly require me to essentially discharge or vary the orders made by Adamson JA in Rahman No 1. The relief that the applicant seeks from Adamson JA’s judgment is properly to proceed under s 46(4) of the Supreme Court Act 1970 (NSW) and r 51.58 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), and is ultimately what is sought by the applicant in Order 1 of the June motion which, as it presently stands, is listed to be heard by three judges of this Court on 10 September 2025: Collier v Lancer [2013] NSWCA 185 at [19]-[20] (Beazley P, Ward and Leeming JJA); Litigation Fund WCX Pty Ltd v Mitchell (No 3) [2025] NSWCA 67 at [20] (Ball JA, Mitchelmore and McHugh JJA agreeing).

6. Accordingly, what follows in these reasons will be confined to the issue of whether the application for expedition of the August motion should be granted (as sought by the applicant in Order 1 of the expedition motion).

Background

7. In Rahman No 1, Adamson JA conveniently summarised the factual background of the proceedings before the primary judge which arise out of a matrimonial dispute between the applicant and his wife, the first respondent, Mita Farjina Rahman, and my reasons today assume familiarity with her Honour’s judgment.

8. It is not necessary for the purposes of resolving the applicant’s application for expedition to recount much of the factual background except to mention that while the proceedings have involved the sale of two properties in Roselands, it is clear from the written submissions, the affidavit of the first respondent’s solicitor Jade Ellis dated 20 August 2025, and the affidavit of the trustee’s solicitor Andrew George Hack affirmed on 20 August 2025, that Property 1 was sold by the trustees around 4 June 2025 to the applicant and his daughter but Property 1A remains to be sold and is listed for auction in two days on 23 August 2025.

9. The applicant opposes the sale of Property 1A occurring and he sought to stop its sale by seeking the stay before Adamson JA in Rahman No 1 (except at that time, the auction for its sale had not been scheduled).

10. In the applicant’s affidavit dated 18 August 2025, he states he became aware on 18 July 2025 that Property 1A was listed for auction on 23 August 2025. He further states that the real estate agent is open to selling the property prior to the auction if someone is willing to pay $1.7 million for it.

11. In oral submissions, the parties have confirmed that Property 1A has at present not been sold and that the auction is still scheduled on 23 August 2025.

Relevant principles

12. The applicable principles when determining whether to grant expedition was set out by this Court in Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 (“Elders”), by reference to the guidance provided by the English Court of Appeal in Unilever plc v Chefaro Proprietaries Ltd [1995] 1 All ER 587 (“Unilever”): See also, NSW Smallbore and Air Rifle Association v Commonwealth of Australia [1996] NSWCA 405; Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260; (2008) 176 IR 426 at [12] (McColl JA); Daracon Engineering Pty Ltd v Kelsall [2025] NSWCA 153 at [6]-[7] (Price AJA).

13. Whilst the Court in Elders at 400-402 (Kirby P, Priestley and Clarke JJA), and the English Court of Appeal in Unilever at 591 (Sir Thomas Bingham MR), set out a number of non-exhaustive circumstances where expedition will be appropriate and stated a flexible approach should be adopted when considering an application for expedition, both in Unilever at 591, and in Elders at 401, it was emphasised by their Honours that a party seeking expedition should act reasonably promptly to approach the court with such an application as “[w]hen the approach is left until the eleventh hour … it may well prove impracticable to arrange a hearing”.

14. In Valuer-General of New South Wales v In Adam Pty Ltd [2011] NSWCA 306, Giles JA refused an application for expedition on the basis of the applicant’s delay in bringing that application. His Honour cautioned at [12] that:

“The lesson to be learned is the necessity, where there is reason for expeditious disposal of an appeal, for the party concerned to act promptly, and not allow time to go by as occurred here.” (emphasis added)

Determination

15. The basis for the applicant’s application for expedition is that if the auction on 23 August 2025 is allowed to proceed and Property 1A is sold, he will be deprived of the opportunity to purchase the property and suffer an irreversible prejudice. The applicant further submitted that if expedition is not granted the sale of the property will render the motions and his appeal nugatory.

16. The first respondent and the trustees oppose the application for expedition.

17. It appears to me that the respondents raise principally three arguments against expedition in their submissions and the affidavits of Ms Ellis and Mr Hack. Firstly, that the applicant has had multiple opportunities to seek expedition and has failed to do so in particular at the directions hearing before the Court of Appeal Registrar on 9 July 2025 and 21 July 2025, where the applicant’s counsel indicated that there was no urgency in the matters. Secondly, the applicant’s delay in bringing the application has made it impractical for a hearing to be arranged and counsel to be either obtained or prepared in time. It is further submitted on this point that the applicant’s delay does not accord with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) and the objects of case management under s 57. Lastly, there is no asserted prejudice to the applicant because the proceeds from the sale of the property will ultimately be distributed between him and the first respondent in accordance with the orders made by the Family Court.

18. A further argument against expedition raised by the trustees in the affidavit of Mr Hack is that if the auction is postponed additional costs will be incurred including from preparing the property for auction again, council and water rates, and interest on the mortgage secured over the property.

19. What is immediately apparent to me is that over 2 months have elapsed since Adamson JA’s judgment in Rahman No 1 was published on 5 June 2025 and more than 1 month since the applicant became aware that Property 1A was listed for auction on 23 August 2025. But despite being aware of the impending sale of the property the applicant has only just as of two days ago on 18 August 2025 brought his application for expedition.

20. Ms Ellis’ affidavit dated 20 August 2025 at paragraphs 15 to 36 reveals the lack of urgency with which the applicant has proceeded with his appeal. There have been many directions hearings before the Registrar from which it is apparent that delay has been occasioned by the applicant failing to file and serve a white folder in compliance with UCPR r 51.12.

21. Even though the applicant became aware of the auction on 18 July 2025, Mr Rogers who appeared on the applicant’s behalf on 21 July 2025, informed the Registrar to the effect that the urgency had gone out of the June motion. The Registrar made directions for the filing and service of a further amended summons seeking leave to appeal and a fresh white folder, and listed the matter on 30 July 2025 with a view of setting a hearing date.

22. On 28 July 2025, the applicant by email to the Registrar sought a further extension of time to file a compliant white folder and sought an adjournment of the directions hearing listed on 30 July 2025, which the Registrar granted.

23. The proceedings were listed again before the Registrar on 13 August 2025 when further directions were made and the amended summons and motion were listed for hearing on 10 September 2025.

24. No application for expedition was made.

25. There is nothing in the applicant’s case which justifies the egregious delay in bringing the application.

26. Applications for expedition such as this brought at the “eleventh hour” cause practical difficulties for the Court and may require hearings to be displaced which creates unfairness to other litigants who have complied with court directions. What the applicant seeks in reality is for 3 Judges of Appeal to be convened to hear his appeal tomorrow. Furthermore, the applicant’s delay unfairly prejudices the respondents in their preparation for the hearing of the appeal.

27. The applicant’s contention that he will suffer irreparable damage if the sale proceeds has its limitations and must be balanced against the interests of the first respondent. The first respondent will receive 64% of the net proceeds of the sale and is entitled to have the property sold at fair market value. The applicant will receive the balance of the net proceeds of any such sale. The applicant may also bid at the auction.

28. In my view, despite the importance of the sale of Property 1A to the applicant, when considered in combination with his significant delay having waited until the “eleventh hour” to bring this application and the interests of the first respondent, I am not satisfied the applicant has demonstrated that the circumstances require the Court to grant expedition.

Orders

29. Accordingly, I make the following orders:

1. Dismiss the notice of motion filed on 18 August 2025.

2. The applicant is to pay the first and second respondents’ costs.

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