Rajavade & Rajavade (No 4) - [2023] FedCFamC1F 349

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rajavade & Rajavade (No 4) [2023] FedCFamC1F 349

File numbers PAC 2172 of 2022 and PAC 1041 of 2019

Judgment of WILSON J

Date of judgment 10 May 2023

Catchwords FAMILY LAW – ARBITRATION – BANKRUPTCY – husband’s sequestration order made after the filing of his unsuccessful application to set aside award but before orders were made dismissing the husband’s application to set aside the award – consequences of husband’s bankruptcy – wife seeking costs against husband’s solicitor – whether solicitor liable for costs – held, no.

Legislation
Bankruptcy Act 1966 (Cth) ss 58(1), 60 and 116

Family Law Act 1975 (Cth) ss 13E and 13H

Cases cited
British South Africa Co v Companhia de Mocambique [1893] AC 602

Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545

Bullock v Goodluck and Transport Commission (1983) 48 ALR 217

Faulkner v Bluett (1981) 52 FLR 115

Moss v Eaglestone (2011) 83 NSWLR 476

Paviello & Paviello [2022] FedCFamC1F 592

Rajavade & Rajavade (No 2) [2023] FedCFamC1F 39

Rajavade & Rajavade [2023] FedCFamC1F 32

Division Division 1 First Instance

Number of paragraphs 59

Date of last submissions 21 April 2023

Date of hearing 24 March and 21 April 2023

Place Melbourne

Solicitors for the applicant Huk Legal Services Pty Ltd

Solicitors for the respondent Harish Prasad & Associates

Solicitors for the intervener Wallmans Lawyers
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

MR SPENCER AS TRUSTEE OF THE BANKRUPT ESTATE OF MR RAJAVADE

Intervener

order made by

WILSON J

DATE OF ORDER

10 May 2023

THE COURT ORDERS THAT –
1.The wife's application for Mr Warraich to pay her indemnity costs is dismissed.
2.The trustee's application for the wife to pay the trustee the sum of $121,046.75 is refused.
3.I adjourn the further hearing of this proceeding to 10:00am on 26 May 2023 for mention in the National Arbitration List.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION

The wife seeks her costs of the unsuccessful application brought by the husband to set aside the arbitral award.
She seeks indemnity costs…

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 4)

Details

AGLC: Rajavade & Rajavade (No 4) [2023] FedCFamC1F 349
Case: [2023] FedCFamC1F 349
Decision Date

CaseChat Overview and Summary

The case of Rajavade & Rajavade (No 4) involves the wife's application for costs against the husband's solicitor, following the husband's unsuccessful attempt to set aside an arbitral award. The husband's bankruptcy, which occurred after the application to set aside the award was filed but before the court's decision, presents complications in determining liability for costs and the enforceability of the arbitral award. The Federal Circuit and Family Court of Australia (Division 1) was tasked with resolving these issues, particularly whether the husband's solicitor was liable for costs and whether the wife should be ordered to pay the husband's trustee the sum of $121,046.75 as per the arbitral award.

The court found that the husband's solicitor was not liable for costs because the husband's bankruptcy, which was not disclosed to the court, had halted all proceedings against him. Additionally, since the husband was now bankrupt, the court could not make a costs order against him without first hearing from his trustee-in-bankruptcy. The trustee had not made any submissions regarding the appropriateness of an indemnity costs order. The court also refused the trustee's application for the wife to pay the trustee the sum of $121,046.75, as the transfer of the husband's interest in the Suburb G property to the wife had become impossible due to the husband's bankruptcy, and it would not be equitable to order the wife to make the payment without her receiving anything in return.

The court's reasoning hinged on the husband's bankruptcy and its implications under the Bankruptcy Act 1966 (Cth). The sequestration order made the husband's property vested in the trustee, affecting the enforceability of the arbitral award. The court concluded that it was not just and equitable to enforce the award in a manner that would disadvantage other unsecured creditors. The court dismissed the wife's application for costs against the husband’s solicitor and refused the trustee's application for the wife to pay the trustee the sum of $121,046.75. The court adjourned the further hearing of the proceeding to allow the parties to consider their positions and to determine the way forward in light of the husband's bankruptcy.

Orders