Saha & Lahiri - [2022] FedCFamC1A 152

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Saha & Lahiri [2022] FedCFamC1A 152

Appeal from: Lahiri & Saha [2022] FedCFamC1F 271

Appeal number(s): NAA 115 of 2022

File number(s): BRC 8518 of 2020

Judgment of: ALDRIDGE J

Date of judgment: 21 September 2022

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an adjournment of the appeal – Where it is not in the interests of justice to delay the hearing – Application dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) ss 120, 139ZS

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45

Number of paragraphs: 36

Date of hearing: 21 September 2022

Place: Sydney (via video link)

Counsel for the Applicant: Mr Fernon SC (Direct brief)

The First Respondent: Self-represented litigant

Counsel for the Second Respondent: Mr Keane

Solicitor for the Second Respondent: Stacks Law Firm

The Third Respondent: Self-represented litigant
ORDERS

NAA 115 of 2022
BRC 8518 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS SAHA

Applicant

AND:
MR LAHIRI

First Respondent

MR FELTOS

Second Respondent

D PTY LTD AS TRUSTEE FOR THE D PTY LTD SUPERANNUATION FUND

Third Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

21 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 19 September 2022 is 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saha & Lahiri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:

This is an application by the appellant for an adjournment of an appeal which is listed for hearing next Tuesday, 27 September 2022 on the basis that she will be unable to prepare the appeal by that time, but will be able to do so if she is granted an adjournment of the hearing of the appeal until October or November 2022.
On 27 April 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) refused to grant an extension of time to the appellant within which to commence an application pursuant to s 139ZS of Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”).
The notice that the appellant sought to set aside was a notice served upon D Pty Ltd, which was the company that was the trustee of the superannuation fund for both the appellant and the first respondent, and forms part of the subject matter of their property proceedings in this Court.
The notice…

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 Saha & Lahiri

Details

AGLC: Saha & Lahiri [2022] FedCFamC1A 152
Case: [2022] FedCFamC1A 152
Decision Date

CaseChat Overview and Summary

The case of Saha & Lahiri involves an appeal by Ms Saha against an order of the Federal Circuit and Family Court of Australia, which dismissed her application for an extension of time to commence an application under section 139ZS of the Bankruptcy Act 1966 (Cth). The appeal was brought against Mr Lahiri, the trustee of the superannuation fund for both parties, and D Pty Ltd, the company acting as trustee of the superannuation fund. The appeal was heard by Justice Aldridge on 21 September 2022. The primary legal issue before the court was whether it was in the interests of justice to adjourn the hearing of the appeal, which was scheduled for 27 September 2022. The court considered whether Ms Saha had taken proper steps to prepare her appeal and whether granting an adjournment would be in the interests of justice. The court found that Ms Saha had not provided sufficient evidence to support her claims of being unable to prepare the appeal by the scheduled date and that she had failed to comply with earlier orders regarding the filing of a Summary of Argument and List of Authorities. Justice Aldridge dismissed the application for an adjournment, noting that the appellant had arguable grounds of appeal but had not taken proper steps to prepare it. The court also considered the interests of the respondents and the potential financial impact on the appellant's creditors if the appeal were to be adjourned. The court concluded that it was not in the interests of justice to delay the hearing and dismissed the application for an adjournment. The court did not provide final orders in the appeal as the adjournment application was dismissed, and the appeal was set down for hearing on the scheduled date of 27 September 2022.

Orders