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 2019FEDERAL 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…
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CaseChat Overview and Summary
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.
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