Rajavade & Rajavade (No 5)
[2023] FedCFamC1F 439
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rajavade & Rajavade (No 5) [2023] FedCFamC1F 439
File number(s): PAC 2172 of 2022
PAC 1041 of 2019Judgment of: CAMPTON J Date of judgment: 29 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – ARBITRATION – Enforcement of arbitral award – Orders made pursuant to s 106A of the Family Law Act 1975 (Cth) if the husband does not comply with the terms of the award within seven days. Legislation: Family Law Act 1975 (Cth) ss 13E, 106A Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 29 May 2023 Place: Sydney Solicitor for the Applicant: Mr Warraich, Huk Legal Services Pty Ltd Solicitor for the First Respondent: Mr Sirohi, Harish Prasad & Associates Solicitor for the Second Respondent: Mr Sankey, Wallmans Lawyers ORDERS
PAC 2172 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RAJAVADE
Applicant
AND: MS RAJAVADE
First Respondent
MR SPENCER
Second Respondent
order made by:
CAMPTON J
DATE OF ORDER:
29 MAY 2023
THE COURT ORDERS THAT:
1.The time for Mr Rajavade (“the husband”) to execute all mortgage discharge documents, refinance authorities and any other documents as required by Property Exchange Australia (“PEXA”) for the purposes of implementing the arbitral award made on 23 June 2021 and registered in this Court on 12 July 2021 be extended for a further seven days from the date of these orders.
2.In the event the husband fails or neglects to comply with Order 1 within seven days of these orders, then pursuant to s 106A of the Family Law Act 1975 (Cth) a registrar of this Court be appointed to forthwith execute for and on behalf of the husband such documents or instruments as prepared by the wife for the purposes of implementing the arbitral award made on 23 June 2021 and registered in this Court on 12 July 2021, including but not limited to mortgage discharge documents, refinance authorities and any other documents as required by PEXA.
3.All extant Applications-Enforcement, Applications in a Proceeding and Applications in an Arbitration, insofar as they are not determined by these orders, are dismissed.
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 the pseudonym Rajavade & Rajavade (No 5) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Pursuant to orders made by a judge in what was then the Federal Circuit Court of Australia on 23 November 2020, the parties to the financial proceedings were referred to an arbitration pursuant to s 13E of the Family Law Act 1975 (Cth) (“the Act”). The arbitrator appointed by the parties published an arbitral award on 23 June 2021 (“the award”), which was registered on 12 July 2021.
The wife subsequently sought orders for enforcement of the award, and the husband sought orders setting aside the award.
Pursuant to orders made by Wilson J on 3 February 2023, the husband’s application to set aside the award was dismissed. Those orders were amended on 7 February 2023 pursuant to the slip rule, incorporating orders as to the enforcement of the award.
On 17 February 2023, the wife filed an application for costs against the husband’s solicitors, arising from the proceeding.
An order was made as to the husband’s bankruptcy in the Federal Court of Australia on 29 November 2022. On 24 March 2023, orders were made in this Court joining the trustee in bankruptcy (“the trustee”) as a party to the proceeding. The trustee has since appropriately engaged in the proceeding.
On 10 May 2023, Wilson J made orders dismissing the wife’s application for costs and the trustee’s application for costs.
These reasons determine the outstanding Application-Enforcement filed by the wife on 8 March 2023, seeking orders pursuant to s 106A of the Act to enforce the terms of the registered arbitral award.
After hearing from each of the parties today, it is apparent that the husband is yet to execute mortgage discharge documents, refinance authorities and other documents relevant to the Property Exchange Australia (“PEXA”) process, so as to implement the registered arbitral award. The husband has recently reinstructed his solicitors who are providing him advice as to complying with the award as registered in this Court.
It was submitted on behalf of the husband, and I accept, that in the event he received the benefit of an indulgence of a further seven days to do so, his compliance with his obligations created by the registered award can be achieved.
In circumstances, it is appropriate that an order be made pursuant to s 106A of the Act, in the terms as set out at the forefront of these reasons, and that otherwise any outstanding applications be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 29 May 2023
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