Rahman v Rahman (No. 3)

[2025] NSWSC 678

Supreme Court

New South Wales

Medium Neutral Citation:

Rahman v Rahman (No. 3) [2025] NSWSC 678

Hearing dates:

11 June 2025

Date of orders:

12 June 2025

Decision date:

27 June 2025

Jurisdiction:

Equity

Before:

Slattery J

Decision:

See [75]

Catchwords:

CIVIL PROCEDURE – Interim preservation – preservation of property – where plaintiff obtained orders to enter real property to obtain personal goods but has failed to comply with a Court order as to retrieving the goods – where the Court has provided further opportunity for the plaintiff to obtain personal goods

FAMILY LAW — Property — Property of relationship — Injunctions and restraints – Where Husband has obtained orders to enter real property to obtain personal goods but has failed to comply with Court orders as to retrieving goods – where trustees have been appointed to dispose of family property – where Husband has been restrained from entering property

Legislation Cited:

Civil Procedure Act 2005

Conveyancing Act 1919

Jurisdiction of Courts (Cross-vesting) Act 1987

Cases Cited:

Ahmad v Mohamed [2022] NSWSC 1445

Burnett v Browne(No 4) [2021] FCA 933

Lopilato v Ghougassian(No 3) [2022] FCA 1532

Makki v Makki [2024] NSWSC 1481

Miric v Romanous [2021] NSWSC 805

Perugini v Perugini [2023] NSWSC 1274

Quaresmini v Huang [2022] QCA 133

Rahman v Rahman [2024] NSWSC 1616

Rahman v Rahman (No. 2) [2025] NSWSC 516

Rahman v Rahman [2025] NSWCA 126

Shah v Sanjiv [2014] NSWSC 1535

Szepesary v Weston (Trustee) [2017] FCA 344

Valceski v Valceski [2007] NSWSC 440

Williams v Spautz (1992) 174 CLR 509

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Mr Fahmid Rahman (Plaintiff)
Ms Mita Rahman (First Defendant)
Ms Wafa Rahman (Second Defendant)
Mr Andrew Fleming and Mr Stefano Calabretta (Trustees)

Representation:

Solicitors:
MIC Lawyers (Second Defendant)
Plaintiff (Self-Represented)
First Defendant (Self-Represented)
Walker and White and Emerson Lewis Lawyers (Trustees)

File Number(s):

2024/374705

Publication restriction:

N/A

EX TEMPORE JUDGMENT (REVISED)

1. The is my third judgment in these proceedings between Mr Fahmid Rahman and Ms Mita Rahman. It determines a motion heard yesterday, 11 June 2024.

2. The full relevant background to these proceedings is set out in my two prior judgments. The first judgment is Rahman v Rahman [2024] NSWSC 1616, and the second judgment is Rahman V Rahman (No. 2) [2025] NSWSC 516. These reasons assume familiarity with both those judgments. Events, matters and persons are referred to in all judgments in the same way.

3. Since my second judgment the matter has gone to the Court of Appeal upon the application of Mr Rahman, resulting in the decision of Adamson JA: Rahman v Rahman [2025] NSWCA 126.

4. By motion filed on 30 May 2025, the trustees for sale of the two subject properties, referred to in this judgment respectively as property 1 and property 1A, seek the following orders in respect of those properties against Mr Rahman:

“1. ORDER that, until 10am on 11 July 2025, Fahmid Rahman be restrained by himself, his servants, employees, agents, or contractors from:

a. trespassing or entering [property 1] or [property 1A] (properties);

b. entering within a 200-metre radius of the Properties; and

c. interfering with the removal of personal items or rubbish or other chattels by the registered proprietors of the Properties, being Andrew John Fleming and Stefano Calabretta, by themselves, or their servants, employees, agents or contractors.

2. Costs.”

5. The relief sought on the motion is opposed by Mr Rahman, who appeared without legal representation as did Ms Rahman. Although leave was given again to Ms Rahman to be assisted by her next friend, Mr Gilmore. The motion was heard on 11 June 2025 commencing at 2.00pm. Mr McIntyre of counsel appeared for the trustees, jointly instructed by Walker and White and Emerson Lewis Lawyers.

6. After hearing submissions from both sides, the Court reserved judgment overnight. Because of the need to expeditiously resolve the disputes between these parties, the Court has attempted to give this oral judgment as quickly as possible. Unfortunately, the Court did not have the transcript of argument available at the time of giving these extempore reasons, but it has since become available and has assisted in their revision.

7. The issues for determination arise out of the orders made by the Court on 9 April 2025, concerning the clearance of property 1A to prepare it for sale. The Court’s orders of 9 April 2025 are set out below:

“1. GRANTS liberty to Mr Fahmid Rahman to attend the premises property 1A, for the purposes of inspecting, identifying, collecting and removing such property and chattels that remain there that he identifies as his own.

2. ORDERS Mr Rahman to remove all property and chattels from property 1A by no later than 29 April 2025.

3. GRANTS liberty to Mr Rahman to provide a list of personal property and chattels which he claims were in his possession at the time of the Federal Circuit and Family Court of Australia Orders of 23 March 2023 which were not at property 1A at the time of his inspection pursuant to ORDER 1.

4. ORDERS that on and from 30 April 2025, the Trustees are at liberty to dispose of all remaining chattels and personal property left at property 1A with any fees and disbursements incurred in doing so to be deducted from the sale proceeds.

5. NOTES that the Trustees are going to seek an advice from an Agent as to the best method of selling the property 1A with a view to maximising the value of the property and will report to the Court and the parties on the next mention date as to their proposal for selling that property.

6. ADJOURNS the proceedings before Slattery J on 14 May 2025 at 2pm.

7. GRANTS liberty to relist on 2 days’ notice if issues arise in relation to the caveats.”

8. The performance of those orders has not gone as planned. But one aspect of the sale of the properties has developed in a positive direction. The contested sale in respect of property 1 has settled and the payment has been made on behalf of the purchaser, Ms Wafa Rahman, to the trustees who are holding the net proceeds of sale, which the Court is told are $263,842.31. As a result of the settlement of property 1 there is still owing on the remaining mortgage on property 1A, as at 11 June an amount of $250,439.36.

9. Clearance of property 1A has not gone as planned and has not yet led to the sale of that property. The major positions taken by the parties in the current dispute on the trustees’ motion are these. The trustees say that the machinery orders for the disposal of property set out in the Court's orders of 9 April have not been able to be performed because the plaintiff, Mr Rahman, has interfered with the clearance of and disposal of goods from the property.

10. Mr Rahman, on the other hand, says that the orders made on 9 April strictly allowed for a clearance period up to 29 April after which on 30 April the trustees could dispose of the property. He says that the trustees have not complied with the Court's order before 29 April and that therefore there is now no express authorisation to the trustees for the disposal of the goods pursuant to the Court's orders and the trustees are now acting without authority. That is the first basket of issues.

11. The Court will shortly set out the course of events relevant to this contest. But in summary the Court has reached the view on this first basket of issues that on the one hand Mr Rahman is correct that the arrangements made by the trustees were not within the period authorised by the Court. But on the other hand, Mr Rahman did not cooperate with the trustees after 30 April to appoint another date in May, whereby the goods could be disposed of or collected. The rights and wrongs of this are a matter for further analysis below. But the Court has reached the view that it will give Mr Rahman a further period to gain access to property 1A and for the property to be cleared, if he does not pick up his goods within a further defined timeframe.

12. Before the Court makes orders about this dispute, it is necessary for the Court to deal with another suite of arguments advanced by Mr Rahman, namely whether this Court is appropriately seized with jurisdiction to deal with this matter or whether these proceedings should be stayed or sent back to the Federal Circuit and Family Court of Australia (the FCFCOA). This is the second basket of issues.

13. In summary, the Court has reached the view on the second basket of issues that it is appropriately seized with jurisdiction, and it will continue the sale process. But when the sale process is concluded it is desirable that any residual issues, such as there may be, can be remitted back to the FCFCOA so that the sale proceeds are dealt with by the FCFCOA pursuant to its orders. In this way there will be no risk of ultimate duplication of proceedings in two courts.

Events since the Orders of 9 April 2025

14. The recent history of the matter is set out in an affidavit of Mr Fleming of 29 May 2025, together with the exhibit to that affidavit. This is an interlocutory application, and the Court has admitted all that material. There was objection, to part of the material relied upon, especially the evidence in paragraph 27, 28 and 29 of Mr Fleming's affidavit, and an annexed document setting out a short factual report from a Mr John Deboulay as to an interaction that he (Mr Deboulay) had with Mr Rahman on 25 May 2025.

15. The Court has decided to admit that material, at least under Civil Procedure Act 2005, s 70 on the grounds that the material is not seriously in dispute. The Court asked Mr Rahman in the course of his submissions what he said had happened on the occasion about which Mr Deboulay was speaking. The account given from the Bar table by Mr Rahman coincides reasonably closely with what Mr Deboulay says. As a result, the Court takes the view that there is not a serious factual dispute about what happened on the occasion of which Mr Deboulay speaks.

16. The relevant history may be briefly summarised. On 8 April, just before the Court made its orders, Mr Rahman locked the driveway gate to property 1A with a bike lock. He explained why he did so in an email to the trustees dated 8 April. He said locking the gate was to prevent repeated incidents of trespass and to prevent further trespass or potential damage to property 1A. He indicated in the email that:

"I remain available to assist with access and coordination as needed and trust this matter will be treated with the urgency it requires".

17. Mr Rahman seemed to be conscious, as this email showed, that some urgency in dealing with these issues was required and he expressed his concern about incidents of trespass or damage to property 1A.

18. Shortly after that, after the orders were made on 9 April, the trustees became registered proprietors of the properties pursuant to the Court's orders.

19. Then on 13 April Mr Rahman, in conformity with the 9 April orders, emailed the trustees indicating he wanted to arrange an inspection of the items that he wished to retain from property 1A and to schedule that inspection on a weekend.

20. This email raised a number of issues that have persisted in Mr Rahman's submissions. He asserted in that email that the Court has not ordered the immediate sale of either property and that the Court did not mandate any urgent timeline for their sale and that his consent for the sale of property 1 was given on the express understanding that property 1A, where he retains his property interests and personal belongings, would be dealt with first. He reserved his rights to seek injunctive relief from the Court, because he did not agree with the sale of property 1 proceeding to completion ahead of property 1A.

21. In relation to the removal of personal items from property 1A, Mr Rahman said that he had consistently made it clear that the belongings remaining at property 1A include the following items:

"Belonging to myself and our children which have remained there since 12 March 2020. These item are not abandoned and must not be treated it as such under any circumstances. Proper handling of these belongings is a legal pre-condition to any sale process and should be treated accordingly. Any disposal or mishandling would be a serious breach of both fiduciary duty and Court process".

22. Mr Rahman then pointed out in the email an argument that he has now deployed in these proceedings: that the orders of 29 April have lapsed through no fault of his and that his timely request for access on 30 April were not adhered to.

23. Unfortunately, Mr Fleming was on leave for approximately two weekends after 9 April, which coincided with the Easter long weekend and the Anzac Day long weekend in the second half of April, and as a result Mr Rahman’s email of 13 April was not responded to. It is unfortunate that, although the Court has appointed two trustees in this case in part to achieve greater efficiency, that this correspondence was not replied to within two weeks, or at least more rapidly than before 29 April. One would have thought that objectively with two trustees that this issue would have been attended to by one, whilst the other was absent.

24. That being said, Mr Fleming did respond expeditiously upon his return from leave on 29 April 2025. He emailed Mr Rahman that day advising him that the trustees nominated Saturday 3 May 2025 as the time for inspection of Mr Rahman’s belongings on property 1A.

25. Mr Rahman responded by email the same day, indicating that he would attend the inspection on 3 May, and indeed he did so, notwithstanding the point he had taken about this being outside the operative time period for Court's orders. In that sense, Mr Rahman was being cooperative by so attending outside the original period prescribed in the 9 April orders. But his email of 3 May did take the point that the orders requiring removal by 29 April were no longer capable of being complied with due to the trustees' inaction and the failure to respond to his timely request on 13 April. In the email, he sought a stay of order 4 of the 9 April orders pending resolution of access failures and other substantive matters.

26. On the following day, a solicitor from the office of the trustee, Mr Jamie Cklamovski, attempted to enter property 1A to allow prospective agents for the sale of the property to inspect it. But the bike chain which Mr Rahman had placed on property 1A required him to return with bolt cutters to gain access for the prospective listing agents. In any event, on 3 May Mr Rahman did attend property 1A for inspection of its contents with Mr Cklamovski.

27. On 7 May 2025, Mr Fleming emailed Mr Rahman, inviting him to arrange the removal of any items that he wished to retain from property 1A by 13 May. This email confirmed that Mr Rahman had attended on 3 May. It records that Mr Rahman had elected to retain all the personal item which were still inside property 1A. It continued:

“Please now let the trustees know the date and time you intend to attend [the] residence to collect the items which [you] have elected to retain."       

28. It continued further:

“Please ensure that you provide the trustees with sufficient notice of the time you (and we presume third party contractors) are to attend the property to collect the personal items remaining at the residence so that the arrangements can be made to allow you access at the proposed time".

29. At this point in the Court's view both Mr Rahman and the trustees had behaved reasonably, notwithstanding the expiry of the time provided in the 9 April orders with the trustees attempting to set another date for removal. The problem with the trustees' adjusted position was that it was not authorised by any Court order. Mr Rahman then decided that he would only respond to a Court order, not to any informal arrangements suggested by the trustees.

30. Mr Rahman had indicated in his letter of 2 May that he was intending to take such items as were "reasonably capable of being taken on the day". He explained that the remainder, "will be dealt with in a manner consistent with the Court's orders and subject to the pending matters before the Court". One would have thought at this point that a cooperative, Mr Rahman might have discussed with the trustees the possibility of amending the Court orders by consent to allow him more time. This is a very common way of dealing with a situation of timetable slippage in orders. But that was not the approach taken from that point on.

31. On 10 May, Mr Rahman emailed the trustees informing Mr Fleming that he considered the belongings remaining at property 1A were his property and that of his children. He repeated in that email that there was no urgent or prioritised timeline for the sale of the two properties. He also stressed in the 10 May email that the trustees were Court appointed fiduciaries, and he requested that communications be managed by a single point of contact in the future to avoid miscommunications.

32. He repeated in this email his contention that his consent to the sale and ultimate settlement of property 1 was:

“Given on the clear and express understanding that property 1A - where I retain property interests and personal belongings - would be dealt with first".

33. He further contended in this letter that:

“This sequence safeguards my rights and ensures the orderly recovery of personal items before any sale proceeded. It prevents further legal disputes over belongings and preserves the integrity of the Court process."

34. If Mr Rahman wished to ensure the orderly recovery of personal items one might have expected from that point on, that is before a prospective sale, that he would cooperate with the trustees to negotiate further access to property 1A and a time for access for further inspection and removal.

35. Instead, he continued to assert that the items were not abandoned. He offered no alternative inspection or collection strategy other than saying that he:

"do[es] not accept that the trustees can now purport to reserve a right to dispose of any items at property 1A because no such right arises from the Court's orders of 9 April".

36. So, a standoff had developed by 10 May, in which Mr Rahman was standing on the letter of the orders of 9 April and insisting on strict compliance with those orders but not seeking to cooperate with a varied schedule.

37. In the Court's view, the lack of negotiation on his side about this issue, notwithstanding the delay by the trustees, was by then becoming unreasonable. The reasonable approach in this situation would have been to negotiate an amended timetable.

38. On 13 May Mr Fleming emailed Mr Rahman, informing him that his failure to arrange to collect any items from property 1A was preventing the trustees from preparing for the orderly sale of that property. This 13 May letter is important in pointing out that the delay was becoming costly. Mr Fleming noted that the mortgages in relation to both properties had increased by that time from $741,681.92 with the accumulation of interest and costs to $774,507.62 from late last year up to the date of that letter.

39. Mr Fleming in substance offered Mr Rahman the following options:

1. To allow Mr Rahman access to collect the belongings at property 1A,

2. To dispose of the items in accordance with order 4 of    the orders of 9 April, or

3. To arrange for packing and storage of the items at the property at Mr Rahman's expense.

40. Given that Mr Rahman was failing to cooperate in negotiations, the trustees expressed the view they really only had options 2 and 3 available. Then they warned him that in the absence of a response from him that the trustees would seek to retain a contractor for the purposes of pursuing option 2.

41. The trustees attended at property 1A with a house clearance specialist, the Mr Deboulay previously mentioned, to arrange a date and time for his company, Sydney House Clearance Specialists (“SHCS”) to clear the remaining items from property 1A.

40. On 19 May Mrs Rahman indicated she had no objection to the disposal of the remaining items at property 1A.

41. On 20 May Mr Fleming sent an email to Mr Rahman informing him that the trustees had engaged SHCS to remove items and invited Mr Rahman to urgently advise any arrangements he wished to make to retain any of those items.

42. This email was clear in its terms. It foreshadowed the removal and offered Mr Rahman the option of the contractor being able to pack items as well as dispose of items so that not everything would be subject to disposal. This was a reasonable offer in the circumstances.

43. This led to a lengthy reply email from Mr Rahman of 20 May 2025. Mr Rahman had by now engaged in correspondence for a period of three weeks since the expiry of the clearance period provided in the 9 April orders. Those orders had allowed a three-week period for collection, which the Court regards as reasonable. But a further three weeks had now passed with Mr Rahman not indicating any alternative collection arrangements to the trustees.

44. Mr Rahman's letter of 20 May contained a lengthy list of complaints, but it did not propose any alternative arrangements to collect the items he wished to retain from property 1A. The letter of 20 May asserted the value of the items at the property to Mr Rahman, saying that they “include valuable and irreplaceable items belonging to myself and the children" He further contended that these items are "not abandoned, and should not be disposed of and that such disposal would be unconscionable”. Despite this assertion of the value of this property to Mr Rahman, he did not make any proposal for the collection of the items.

45. Nor did he point out at that time that he was engaged in urgent proceedings in the Federal Circuit and Family Court of Australia listed for hearing on 22 May 2025. He requested in this 20 May letter that all further action concerning the disposal or removal of personal items be suspended until the Court had an opportunity to determine the issues that he was raising on or after 11 June 2025. The letter is significant again in that no alternative proposal was advanced by him for his collection of the goods.

46. On 21 May Mr Rahman wrote again to the trustees raising similar matters, contending in summary that he intends to purchase property 1A and that the premature removal and disposal of personal property by the trustees would undermine Mr Rahman’s proposed purchase of that property and cause irreparable prejudice to him and his children.

47. Mr Rahman argued that there were no final Supreme Court orders as to the method of sale of either property and the trustees could no longer rely upon order 4 of the 9 April orders. He asserted that the disposal of items in order 4 is expressly contingent on compliance with order 2, which had not been complied with, and that the property was not abandoned. But once again, his letter contains no proposal for collection of the goods.

48. On 25 May, Mr Deboulay came to the property, as was foreshadowed in Mr Fleming's correspondence. It appears to be common ground, that Mr Rahman was there at the time Mr Deboulay arrived and got out of his car. Mr Rahman said that it was his property, and that Mr Deboulay had no right to be there. There is a contest about whether Mr Rahman was aggressive or not. I do not need to determine that. But what the Court can determine from everything that Mr Rahman has said in this courtroom and the way he has said it, is that Mr Raham would have been firm about asserting to Mr Deboulay that this was his property, and that Mr Deboulay had no right to be there.

49. Mr Deboulay asked Mr Rahman what his name was, and he gave his name. Mr Deboulay's perception of the situation, which the Court regards as not unreasonable, was that it was unsafe to try and clear out the property while Mr Rahman was there, so he locked up and left.

50. No more detailed account is necessary. The Court can infer from this, as it can from what Mr Rahman has said in Court, that Mr Rahman regards the items of property as his and will take whatever action he sees necessary to prevent their sale and to prevent the removal of that property before the sale of property 1A. That seems to be the reasonable inference available to the Court from these circumstances.

51. That leads then to the submissions in the proceedings. The Court's concern arising from these facts and Mr Rahman's conduct is that should the trustees seek again to attend the property, even pursuant to a Court order, that there may be a breach of the peace, although Mr Rahman has said that if an order is made that he will obey the Court’s order. The Court has the option of amending the orders of 9 April.

52. In substance, Mr Rahman is standing upon the technical force of the 9 April orders and saying that he will not agree to do anything outside those orders. To an extent he is correct. If there is to be a clearance of property 1A for sale, it should be in accordance with the Court’s order. The Court can, of course, make orders to amend the orders of 9 April.

53. On the other hand, everything which Mr Rahman has done since about 10 May, has been uncooperative in seeking to reach a clearance arrangement for property 1A. Since then, approximately double the time that was originally allowed to Mr Rahman to clear the property by the 9 April orders, has expired.

54. This is to take a technical and unreasonable position in respect of items of property which he says he values. If he truly valued those items/property, rather than being obstructive, one would have thought he would have cooperated within that period to allow the material to be removed.

55. The contest before the Court took a number of forms. After addressing the issues now discussed the Court put to Mr Rahman on several occasions would he like to propose an amended timetable. The Court offered him dates in the next two weeks to do the removal. The Court offered him time during the week or on a weekend, if he had work commitments. Mr Rahman declined to give the Court any date.

56. The Court takes the view that, subject to the argument that I will analyse below in relation to referral back to the Family Court, that an amended timetable should be expressly ordered by the Court. But to ensure there is no error in communication or misunderstanding between the parties it is best that the Court propose that Mr Rahman nominate a date upon which he can collect the goods. A period of approximately two weeks, given the time that has gone by, should be sufficient for Mr Rahman to nominate a date convenient to him during the week or on the weekend.

57. Mr Rahman then said that he had nowhere to store the goods. The Court is not apprised of their volume. There is no evidence advanced by Mr Rahman on the motion that he is financially impecunious and does not have the capacity to fund a storage facility. Indeed, his asserted incapacity to arrange storage is inconsistent with his other assertions that he wants to purchase property 1A for the family and is in a financial position to do so. Mr Rahman has threatened in correspondence and on previous occasions, to seek a stay in the Court of Appeal notwithstanding his failed application in that regard, determined on 5 June.

58. The Court will allow him sufficient time also to seek such a stay if he proposes to do so. He has made the submission that this Court should allow sufficient time for his appeal to be determined. The Court will allow him sufficient time to approach the Court of Appeal for a stay of the orders now being made. The Court regards that as an appropriate measure of fairness in the circumstances. But it is unclear when his appeal might be determined.

59. But several factors lead the Court to conclude that this matter should proceed expeditiously. It has now been two years and three months since the Family Court orders were made. Interest continues to run on the outstanding mortgage amount, although it is considerably lessened as a result of the sale of property 1. The trustees’ costs are already $80,000. This couple cannot afford this contest continuing with the trustees involved. Should further delay in the trustees' performance of their duties be caused, these proceedings will become unreasonably costly for the parties.

60. The Court declines to accept the submission made by Mr Rahman to simply wait until his appeal is resolved. And Mr Rahman’s submission is not persuasive for another reason. Mr Rahman himself is the plaintiff in these proceedings. He is the one who has brought this matter to this Court and this Court has offered him relief. But for reasons that are obscure, he does not want the relief this Court is now offering him.

61. The Court has a duty under Civil Procedure Act s 56 to deal with the issues before it as justly, quickly and cheaply as possible, and it is seeking to do that.

62. The other basket of issues raised by Mr Rahman are set out in his written submissions, which were handed up to Court yesterday. In substance those submissions raise the following issues. Mr Rahman says that the continuation of the Supreme Court proceedings parallel to the ongoing proceedings in the FCFCOA is an abuse of process and involves multiplicity of actions, the duplication of evidence and the risk of inconsistent judgments. He cites Williams v Spautz (1992) 174 CLR 509 as authority for the proposition that proceedings are an abuse of process if they are pursued for a purpose other than the legitimate resolution of a dispute or to harass a party or misuse Court processes.

63. The initial problem with this submission is that these additional proceedings were commenced by Mr Rahman himself, not by Ms Rahman. In the Family Court the moving party was Ms Rahman. It is Mr Rahman who came to this Court. It is a curious submission that he should complain about his own initiation of these proceedings. I therefore can dismiss this submission on that basis at the outset.

64. The problem appears to be for Mr Rahman that he has become concerned about the Court exercising a jurisdiction which he asked it to exercise and he, for his own reasons, appears to have decided that he no longer wants this Court to deal with the matter. But that smacks to a degree of forum shopping.

65. His second argument is that there is a jurisdictional conflict. He cites the well-known authorities of Shah v Sanjiv [2014] NSWSC 1535, a decision of Justice White, the decision of Justice Brereton in Valceski v Valceski [2007] NSWSC 440 and Miric v Romanous [2021] NSWSC 805 as authority for various propositions that property disputes that arise from marital breakdown can concern equitable remedies that fall within the exclusive jurisdiction of the Family Court. Mr Rahman points out that Brereton J transferred the Valceski proceeding to the Family Court, which was seen as better placed to resolve property disputes.

66. All those decisions cited have one common characteristic: the property proceedings in the Family Court had not been resolved. This case is very different. The parties have agreed upon orders on 24 March 2023 to resolve all their disputes in the FCFCOA, and there is no difficulty in understanding the structure that emerged from those orders, including the appointment of the wife as trustee for sale. Those orders were the following:

“(1) The wife is appointed sole trustee to act on the sale of:

(a) [property 1]; and

(b) [property 1A],

(hereinafter the “properties”).

(2) As sole trustee the wife is:

(a) Authorised to sign documents on behalf of Fahmid Rahman (hereinafter “the husband”).

(b) Give any consents necessary on the husband’s behalf.

(c) Given power to appoint real estate agents, auctioneers and conveyances or solicitors to act on the sales of the properties.

(d) Authorised to give instructions and directions to any mortgage holders on the husband’s behalf.

(e) Able to exercise all trustee powers available under the Trustee Act 1925 (NSW).

(3) (a) On the sale of each property in order 1 hereof, the sale proceeds are to be disbursed as follows:

(i) In payment of real estate agents costs and any auction costs.

(ii) In payment of the real estate agents commission.

(iii) In payment of conveyancing costs and expenses.

(iv) To pay a sum sufficient to discharge any mortgage secured over the property.

(b) Upon the sale of the last of the properties in order 1 hereof:

(i) In payout of a sum to discharge the St George Bank Portfolio Loan BSB 112-879 account #493098017.

(ii) To payout the balance owed on the St George Bank Vertigo Platinum Visa Credit Card account ending in #2064.

(iii) In payment of any capital gains tax arising upon the sale of either property.

(iv) In payment of the balance of the combined sale proceeds of both properties as to 64% to the wife and 36% to the husband.

(4) Prior to the husband being paid his 36% from his share is to be paid:

(a) A sum sufficient to pay out his debt and accrued interest owed to achieve a discharge of the caveat lodged by Kent Attorneys.

(b) In payment to the wife of the balance due of any outstanding cost order made on 8 April 2022 in these proceedings relevant to the husband’s appeal and in payment of costs pursuant to order 10 hereof.

(c) In payment to Legal Aid NSW the sum of $6,966.24 so as to comply with order 4 made on 17 October 2022.

(5) Prior to the wife being paid her 64% from her share, she is to pay to Legal Aid NSW the sum of $6,966.24 so as to comply with order 4 made on 17 October 2022.

(6) Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (“the Act”), that the husband and the trustees of the Public Sector Superannuation Accumulation Plan, it's servants and agents, do all acts and things, sign all documents and give all consents so that whenever a divisible payment becomes available to the husband from his interest in the Public Sector Superannuation Accumulation Plan, that the wife and any administrator, executor, heir, successor or assign of the mother is entitled to an amount calculated in accordance with Part 6 of the Family Law (Superannuation) (Regulations 2001) using a base amount being $87,649.32, and that there is a corresponding reduction in the entitlement of the said husband in the said Fund had these orders not been made, being a reduction of $87,649.32.

(7) For purpose of this order:

(a) The base amount to be allocated to the wife is the amount of $87,649.32.

(b) The operative time for this order is the fourth business day after the order is served on the trustee.

(c) The parties sign any document required by the Trustee of the Public Sector Superannuation Accumulation Plan to be signed as a declaration permitting the Trustee to split the benefit.

(8) It is ordered that subject to the preceding the husband and wife are to have the sole right, title and interest in:

(a) Any chattels, goods, furnishings and other property not previously dealt with as part of these orders which are, at the date hereof in their possession respectively;

(b) Any monies, shares, debentures and superannuation entitlements not previously dealt with as part of these orders which stand in their sole name respectively at the date hereof.

(9) Leave to apply on not less than 7 days’ notice relevant to implementation of these orders.

(10) The husband shall pay to the wife from his share of the property settlement orders, costs in the total sum of $14,525.

(11) All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.”

69. Mr Rahman thirdly argues that these proceedings should be cross-vested to the FCFCOA under the Jurisdiction of Courts (Cross-vesting) Act 1987, as this Court does not have authority to deal with the proceedings. He cites various authorities as the foundation for this argument, including Ahmad v Mohamed [2022] NSWSC 1445, Perugini v Perugini [2023] NSWSC at 1274 and Makki v Makki [2024] NSWSC 1481.

70. There is little doubt this Court has the power to transfer these proceedings under the Jurisdiction of Courts (Cross-vesting) Act and the time will soon come when that should be done. The Court is of the view though that Mr Rahman having invoked the jurisdiction of this Court and this Court having sought to solve the immediate problem which faces both these parties, that what should now occur is that the sale of the properties be completed and costs associated with the appointment of the trustees for sale and all consequential issues in these proceedings be resolved. And then, if there are any other residual issues, it is the Court's intention to send the matter back to the FCFCOA so that court can distribute the proceeds of sale in accordance with its orders and deal with any purely family law issues remain.

71. That appears to the Court not to involve any possibility of overlap in competing judicial decisions, any inefficient use of resources or any parallel proceedings. The Court is fortunate now in that the recent application in May, made in the FCFCOA before a judge of that Court, Kemp J, has allowed his Honour to become apprised of these proceedings. When the time comes after the sale is concluded for the matter to be remitted to the FCFCOA, this Court can see that there is a judge familiar with the matter in the FCFCOA, who can receive these proceedings to ensure seamless determination of them. The Court's discretion to transfer proceedings under the Cross-Vesting Act includes the discretion as to the time at which that will occur.

72. Next Mr Rahman argues that the appointment of the trustees was a jurisdictional error on the part of this Court and that it is contrary to Shah v Sanjiv, where the Court recognises that s 66G of the Conveyancing Act can't override family law jurisdiction. The difficulty with that argument is that here the FCFCOA has already determined that the parties are co-owners, and this Court has not exercised s 66G jurisdiction. This Court simply exercised, as the first judgment explained, jurisdiction under the Trustee Act to change the trustees for sale.

73. Mr Rahman next argues that there has been a procedural irregularity in that the 9 April orders have not been complied with and that he has been denied procedural fairness. He cites Quaresmini v Huang [2022] QCA 133 and Burnett v Browne(No 4) [2021] FCA 933 to submit that the trustees cannot mechanically rely on orders, if they fail to comply themselves with procedural obligations. As earlier indicated, to some extent, the point Mr Rahman makes about this is correct. There was a procedural irregularity, but to cure procedural irregularities parties are expected to behave reasonably and cooperate. And in the Court's view Mr Rahman is the one responsible for that not occurring.

74. Finally, as to the disposal of property, Mr Rahman alleges the trustees would be about therefore to dispose of property unlawfully and he cites Lopilato v Ghougassian(No 3) [2022] FCA 1532 and Szepesary v Weston (Trustee) [2017] FCA 344, which he cites as authority for the proposition that trustees must strictly adhere to access rights and fairness. That law is not in dispute. And the Court has decided therefore it will give a further reasonable time for Mr Rahman to collect the property. But the Court will do it on the basis that it is prescriptive to create certainty for all parties so there is no argument about the dates over which access will occur. Mr Rahman will be given reasonable additional time to collect his goods.

Orders

75. For these reasons, the Court:

1. ORDERS the plaintiff (“Mr Rahman”) to remove by no later than Friday 4 July 2025 all goods and chattels from property 1A he claims.

2. ORDERS that, if Mr Rahman has not removed his property from property 1A by 4 July 2025 in conformity with Order 1, then Andrew John Fleming and Stefano Calabretta, the trustees for sale (“the trustees”), are authorised by themselves and by their servants and agents to dispose on 5 and 6 July 2025 of all remaining goods and chattels left at property 1A to enable the clearance and sale of that property.

1. ORDERS that, should the trustees dispose of all goods and chattels in accordance with Order 2, then the costs and fees of the disposal may be deducted from the sale proceeds of property 1A and any money received on the sale of such goods and chattels shall be credited to the sale proceeds.

2. ORDERS the trustees to list property 1A for sale in accordance with the timetable discussed with any agent they engage as soon as practicable after Monday 7 July 2025.

3. ORDERS that Mr Rahman must give 2 full business days clear notice to the trustees of his intention to remove any goods and chattels from property 1A, by written notice setting out clearly the date and time at which he proposes to enter the property and leave the property after completing the removal, noting that he may nominate any weekday or any Saturday for the removal.

4. NOTES that, unless Mr Rahman notifies the trustees by Tuesday 1 July 2025 of his intention to remove goods and chattels from property 1A, on 4 July the trustees may operate on the basis that they will be disposing of the goods at property 1A on 5 and 6 July 2025.

5. ORDERS that Mr Rahman by himself and Mr Rahman by his servants and agents is restrained from trespassing upon or entering property 1A.

6. ORDERS that Mr Rahaman by himself and Mr Rahman by his servants and agents is restrained from interfering with, obstructing, or hindering the removal of any personal property, goods, rubbish or chattels from property 1A by the trustees themselves or by the trustees’ servants, employees, agents or contractors on 5 or 6 July 2025, or on any other day on which such removal is required to occur.

7. ORDERS that these orders be entered forthwith.

8. ORDERS that the costs of this application may be paid out of the sale proceeds of property 1A and NOTES that the question of which share of the proceeds of sale the costs will come from will be dealt with before the proceedings return to the Federal Circuit and Family Court of Australia.

9. RESERVES costs.

10. LISTS the matter on 11 July 2025 at 9:30 AM to consider any argument about costs (or directions thereafter) and ORDERS any party who wishes to be heard on costs to file submissions and any proposed further orders for the disposal of these proceedings by 9 July 2025.

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Decision last updated: 27 June 2025