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Rajavade & Rajavade (No 2)

Rajavade & Rajavade (No 2)

Case [2023] FedCFamC1F 39 7 February 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rajavade & Rajavade (No 2) [2023] FedCFamC1F 39

File numbers PAC 2172 of 2022 and PAC 1041 of 2019

Judgment of WILSON J

Date of judgment 7 February 2023

Catchwords FAMILY LAW – PRACTICE & PROCEDURE – slip – order intended in the reasons of judgment was omitted by slip – order amended pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Legislation
Family Law Act 1975 (Cth) s 13K(2)(a)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited
Autodesk Inc v Dyason(No 2) (1993) 176 CLR 300

Bailey v Marinoff (1971) 125 CLR 529

Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224

Carter v Milson [1893] AC 638

Cole v Langford [1898] 2 QB 36

Fritz v Hobson (1880) 14 Ch D 542

Goldring v National Mutual Life Association of Australasia (1916) 22 CLR 336, McDonald v McDonald (1965) 113 CLR 529

Gould v Vaggelas (1985) 157 CLR 215

Hatton v Harris [1892] AC 547

Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (1973) 129 CLR 521

Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642

Laurie v Lees (1881) 7 App Cas 19

L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590

McDonald v McDonald (1965) 113 CLR 529

Owners of the SS Kalibia v Wilson (1910) 11 CLR 689

Rajavade & Rajavade [2023] FedCFamC1F 32

Smith v New South Wales Bar Association (1992) 176 CLR 256

Storey & Keers Pty Ltd. v Johnstone (1987) 9 NSWLR 446

Taylor v Johnson (1983) 151 CLR 422

Wright v Rebane (2021) 64 Fam LR 287

Division Division 1 First Instance

Number of paragraphs 5

Date of last submission 17 November 2022

Date of hearing on the papers

Place Melbourne

Solicitor for the applicant Huk Legal Services Pty Ltd

Solicitor for the respondent Harish Prasad & Associates
ORDERS

PAC 2172 of 2022
PAC 1041 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR RAJAVADE

Applicant

AND:
MS RAJAVADE

Respondent

order made by:

WILSON J

DATE OF ORDER:

7 February 2023

THE COURT ORDERS THAT:
1.In substitution for the orders recorded in Rajavade & Rajavade [2023] FedCFamC1F 32, I order as follows –
1.The husband’s application dated 23 March 2022 to set aside the arbitral award under s 13K(2)(a) is dismissed.
2The husband must forthwith do all things necessary and must execute all necessary documents, including but not limited to CBA Discharge/Refinance Authority Form and authorisation forms as required by Property Exchange Australia (PEXA), to comply with orders 2.1 and 2.2 of the Arbitral Award dated 23 June 2021.
3In alternative to paragraph 2 above, a Judicial Registrar pursuant to s 106A of the Family Law Act 1975 must execute the documents, including but not limited to CBA…

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 Rajavade & Rajavade (No 2)

Details

AGLC: Rajavade & Rajavade (No 2) [2023] FedCFamC1F 39
Case: [2023] FedCFamC1F 39
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) presided over a case involving Mr Rajavade and Ms Rajavade, where the primary concern was the enforcement of an arbitral award. The case, Rajavade & Rajavade (No 2), saw the court address the omission of certain orders in a previous judgment by Justice Wilson. The dispute involved Mr Rajavade's application to set aside the arbitral award and Ms Rajavade's subsequent application for enforcement of the award.

The legal issues before the court were whether an error in the previous judgment, which omitted to make certain orders, could be corrected under the slip rule, and whether such correction would be appropriate given the circumstances. The court had to determine if the omission was indeed an accidental slip or omission and if correcting it would cause any injustice or inequity. Additionally, the court needed to decide on the enforcement of the arbitral award and whether the husband should be required to comply with the award or if a Judicial Registrar should enforce it.

Justice Wilson reasoned that the court has the inherent power to correct errors in its orders arising from accidental slips or omissions. The court referenced various precedents and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to support the application of the slip rule. The court found that the omission of orders in the previous judgment was an accidental slip, as it was not brought to the court's attention due to the absence of the parties. The court concluded that correcting the error would not cause any injustice, and thus, the slip rule should be applied. Consequently, the court ordered that Mr Rajavade must comply with the arbitral award or alternatively, a Judicial Registrar would enforce it. The court also set out a timeline for the submission of costs applications and affidavits.

In light of the reasoning, the court amended the previous orders to include the enforcement of the arbitral award, ensuring that Ms Rajavade's application was adequately addressed. The court emphasised that the slip rule is to be exercised sparingly to avoid undermining the finality of litigation but should be applied where the error is truly accidental and no injustice would result from the correction.

Orders