Saha & Lahiri (No 2)
[2022] FedCFamC1A 181
•11 November 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Saha & Lahiri (No 2) [2022] FedCFamC1A 181
Appeal from: Lahiri & Saha [2022] FedCFamC1F 271 Appeal number(s): NAA 115 of 2022 File number(s): BRC 8518 of 2020 Judgment of: ALDRIDGE, KARI & BRASCH JJ Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal against orders refusing to grant the appellant an extension of time to file an application pursuant to the Bankruptcy Act 1966 (Cth) – Where the appellant failed to file a Summary of Argument within the time prescribed by the procedural orders – Where the appellant was notified by the appeals registry that the appeal would considered for summary dismissal – Whether the appellant was denied procedural fairness – Where the proposed appeal is not arguable and the application for leave to appeal does not have merit – Appeal dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – No order as to costs. Legislation: Bankruptcy Act 1966 (Cth) ss 120, 139ZQ, 139ZS
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Cook & Benson (2003) 214 CLR 370
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Saha & Lahiri [2022] FedCFamC1A 152
Number of paragraphs: 56 Date of hearing: 27 September 2022 Place: Brisbane, delivered in Sydney The Appellant: Self-represented litigant 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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SAHA
Appellant
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, KARI & BRASCH JJ
DATE OF ORDER:
11 November 2022
THE COURT ORDERED ON 27 SEPTEMBER 2022 THAT:
1.The appellant’s oral application to adjourn the appeal hearing is dismissed.
THE COURT FURTHER ORDERS THAT:
1.The appeal 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 (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, KARI & BRASCH JJ:
Introduction
This is an appeal against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 27 April 2022, refusing to grant Ms Saha (“the appellant”) an extension of time to file an application pursuant to s 139ZS of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). At the same time, his Honour made consent orders between other parties to the proceedings, resolving the issues between them arising out of the service of the same notice.
There are two matters that must be dealt with before turning to the appeal itself. First, the appellant made an oral application for an adjournment of the appeal which was refused. We shall set out our reasons for doing so shortly.
Secondly, the appellant was advised by the appeal judicial registrar on 9 September 2022 that on the hearing of the appeal, the Court would consider whether it should be summarily dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) because of the appellant’s failure to file a Summary of Argument as directed.
Background
It is helpful first to set out some of the relevant history of the matter.
The appellant was the owner of a property at Suburb C. On 15 October 2014, she transferred a 1/100th interest in that property to Mr Lahiri, her husband and the first respondent to this appeal (“the first respondent”).
On 8 December 2014, the appellant and the first respondent transferred their interests in the Suburb C property to D Pty Ltd as trustee for the D Pty Ltd Superannuation Fund, the third respondent (“D Pty Ltd”). The beneficiaries of the fund are said to be the appellant and the first respondent. The transfer was expressed to be for nil consideration.
The appellant became a bankrupt on 30 September 2016, pursuant to a sequestration order made on that day. Mr Feltos, the second respondent, became her trustee in bankruptcy (“the Trustee”).
The first respondent commenced these proceedings on 3 July 2020.
On 4 June 2020, the Official Receiver, at the request of the Trustee, issued a notice under s 139ZQ of the Bankruptcy Act to D Pty Ltd. The notice referred to the above transactions and asserted that the transfer by the appellant of her property on 8 December 2014 was void against the Trustee pursuant to s 120 of the Bankruptcy Act. It demanded the payment of $853,875 to the Trustee, being the value of the appellant’s interest.
The first respondent filed an Amended Initiating Application on 24 August 2020 which sought, amongst other orders, that the notice be set aside pursuant to s 139ZS of the Bankruptcy Act.
That matter came before the primary judge on 21 and 25 February 2022. By that time, the first respondent, D Pty Ltd and the Trustee had resolved their differences and jointly asked the Court to make orders:
·Permitting the first respondent to discontinue the Amended Initiating Application insofar as it sought relief against the Trustee;
·Requiring D Pty Ltd to pay $853,875 to the Trustee; and
·That the above sum was to be paid from the proceeds of the sale of the Suburb C property.
Ultimately, the primary judge made these orders.
The appellant did not agree with them. Although she had filed no relevant application, the primary judge directed that the appellant’s Response to an Application in a Case sent on 18 March 2022 be treated as an application by her pursuant to s 139ZS(1) of the Bankruptcy Act to set aside the notice.
His Honour found that the appellant needed an extension of time to bring the application within the time prescribed by s 139ZS and considered that the provisions of s 33(1)(c) of the Bankruptcy Act enabled him to do so (at [65]–[75]).
At the hearing on 25 February 2022, the primary judge made an extensive set of directions for the appellant to provide written submissions, a formal application and evidence in support of that application. Those directions specifically referred to Cook & Benson (2003) 214 CLR 370 (“Cook”) and sought submissions as to the effect of the principles set out there on the proceedings. That decision held that, in the circumstances of that case, the trustees of the superannuation fund that received the property provided valuable consideration for it by agreeing to accept the obligation to provide superannuation payments in due course.
On 18 March 2022, the appellant filed an affidavit made on 24 February 2022 but no other evidence. The appellant did not take up the opportunity to address the issues raised in Cook, for example, by adducing the relevant trust deed. She filed written submissions on 19 April 2022 in which she sought an extension of time to comply with the orders of 25 February 2022.
His Honour delivered judgment on 27 April 2022. The application for an extension of time was refused for reasons set out at [80] because:
·There was no explanation as to why the appellant had failed to apply to set aside the notice within the time prescribed;
·Statutory time limits should not be ignored without good reason; and
·The merits of the appellant’s case did not warrant an extension.
As to the merits, the primary judge said:
88.Here, there is no evidence upon which I could find to the requisite standard that in return for the contribution represented by the value of the [Suburb C] property, [the appellant] received valuable rights from the third respondent. Cook v Benson stands for the proposition that a trustee of a superannuation fund (at least one at arm’s length from the contributor) can provide valuable consideration for a contribution or transfer which is represented by the rights and benefits that will accrue to a member in accordance with the trust deed of the superannuation fund commensurate with the contributions made. In the present case, the deed establishing the trust of which [D Pty Ltd] is trustee is not in evidence. Nor is there any evidence of the rules of the fund. I cannot infer that there would be benefits or entitlements flowing to [the appellant] from the trust deed because on her own case, the fund is a non-complying superannuation fund, by which I take her to mean that it does not comply with the rules and regulations relating to such funds. That is so, notwithstanding that there is in evidence financial statements for the fund that purport to record monetary entitlements for each of the applicant and [D Pty Ltd].
…
90.I find that [D Pty Ltd] gave no consideration for the transfer to it of [the appellant’s] interest in the [Suburb C] property when that transfer was made in December, 2014. I find that the transfer is void pursuant to s 120 of the Bankruptcy Act because:
(a)the transfer took place prior to the [the appellant’s] date of bankruptcy;
(b)the transfer took place on a date within the period of five years before the commencement of the [the appellant’s] bankruptcy; and
(c)the value of the consideration given by [D Pty Ltd] for the transfer was less than the market value of the interest in the [Suburb C] property that it received by way of the transfer.
91.Further, I find that none of the exemptions set out in s 120(2) of the Bankruptcy Act apply. Nor do the provisions of s 120(3) apply. [The appellant] and [D Pty Ltd] were related entities for the purposes of Bankruptcy Act at the time of the relevant transfer (see s 5(1) definition of related entity). Given that the relevant transaction took place less than four years before the commencement of the [the appellant’s] bankruptcy, whether or not [the appellant] was solvent at the time of the transfer is irrelevant.
(Emphasis in original)
The Appeal
The appellant filed a Notice of Appeal on 24 May 2022. Many of the grounds are so broad in terms that they are incapable of identifying error (Grounds 1–4 and 6–9), raise irrelevant matters or were not raised at the hearing.
The adjournment application
On 19 July 2022, the appeal judicial registrar directed the appellant to file an Amended Notice of Appeal, Summary of Argument and List of Authorities by 2 September 2022. She did not do so.
On 19 September 2022, the appellant filed an Application in an Appeal seeking that the hearing date be vacated because she was unable to obtain legal representation and did not have time to prepare for the matter herself. Senior counsel appeared for her on that application, which was refused (Saha & Lahiri [2022] FedCFamC1A 152).
Senior counsel indicated at the time that he had not been briefed to appear at the appeal hearing in the event that the adjournment was refused.
On 23 September 2022, by means of a lengthy statement of claim apparently drafted by her, the appellant commenced proceedings against the Trustee in the Supreme Court of New South Wales.
On 26 September 2022, the appellant filed a request to attend the hearing electronically, which was granted. On the same day, she also filed a document which was headed “Appellant’s Outline of Argument”. The appellant said that it had largely been prepared by senior counsel.
The appellant sought an adjournment again because:
·The Court would be assisted by hearing from counsel;
·She had not had time to prepare for the appeal and had been busy in other courts; and
·She had COVID-19 and was feeling confused.
The appellant has an unfortunate history of not being ready to run proceedings. She initially sought an adjournment of the primary hearing on two separate occasions (see [16] and [17]) as well as an extension of time to file written submissions.
Her reasons for seeking those adjournments were much the same as the applications made to adjourn the appeal on 21 September 2022 and at the hearing of the appeal. We have no confidence at all that any adjournment would achieve anything beneficial, given that history.
We do not accept that there were no competent lawyers available to prepare the documents required for the appeal or to appear on it. The appellant filed a Notice of Appeal on 24 May 2022 and had considerable time in which to seek legal representation. Her evidence of her attempts was vague and unpersuasive. She was able to instruct senior counsel to appear for her at short notice on the adjournment application, but not to prepare a Summary of Argument or to appear at the appeal. That was an odd choice.
The appellant said that she had asked senior counsel to appear at the appeal, but he was otherwise engaged. At the hearing of the adjournment application on 21 September 2022, senior counsel did not however say if an adjournment was granted if he would appear on the appeal. He said he was briefed only on the adjournment application.
The appellant chose to prepare a detailed statement of claim, which could easily have been done after the hearing of the appeal, rather than draft submissions for the appeal.
There was no evidence, apart from the appellant saying so, that she had COVID-19. More importantly, although she said she was confused, it was not apparent. She argued her points forcefully, eloquently and tenaciously.
Finally, it is in the remaining parties’ interests, and in the public interest, that litigation not be unnecessarily prolonged.
For these reasons, we were not satisfied that it was in the interests of justice to adjourn the appeal and the application for an adjournment was dismissed.
Should the appeal be summarily dismissed?
The basis for a dismissal of the appeal under r 13.45 of the Rules has been established by the failure of the appellant to comply with the appeal judicial registrar’s directions to file an Amended Notice of Appeal and Summary of Argument within the requisite time.
We are conscious that a regularly commenced appeal should not lightly be dismissed due to a procedural default (Jackamarra v Krakouer (1998) 195 CLR 516). However, delay and failure to comply with court directions are relevant matters to take into account (at [29]).
Justices Gummow and Hayne said:
33.Her appeal is as of right and was instituted within time but that right must be exercised subject to the limitations imposed by the rules. If exercising her right in accordance with those rules, she should not be denied the opportunity to present her appeal in the ordinary way except in a clear case. So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. For the moment, however, we leave consideration of adverse effects of delay on the respondent to one side and look only to the degree of satisfaction that the court must have that the appeal will fail.
As to the last point, their Honours said:
36.In the present case, the appellant accepted in the Full Court that she had to show that the appeal was arguable. Not only did the appellant's outline of argument to that Court address the merits of the appeal, any lingering doubt that there may have been about the importance of the question was resolved very early in the argument in that Court. At the outset of the argument counsel were told by the Court that the “appeal is likely to be struck out unless it is saved by its merits” and that counsel for the appellant
“should take it that, having regard to the length of the delay, the reasons for the delay and the apparent absence of any prejudice other than the uncertainty of the situation, the key issue here is whether there is merit in the appeal sufficient to overcome those difficulties, because if the only question was the length of the delay, reasons for the delay and a matter of prejudice and the appeal had merit, it is likely that an extension of time would be granted.”
And the appellant was right to proceed on the basis that a necessary part of the argument in support of the application to extend time and the opposition to the application to strike out was to show that the appeal was arguable. If she did not show that the appeal was arguable there would be no point in extending time and she would suffer no injustice if the rules were applied; the application to strike out should succeed.
(Footnote omitted)
The circumstances of this matter are slightly different. The application for an extension of time is interlocutory in nature and, as recognised in the Notice of Appeal, leave to appeal is required.
The appeal itself is at the final stage of hearing and we have the benefit of a complete Appeal Book and the transcript of the trial hearing.
The appellant sought to rely on the “Appellant’s Outline of Argument” document. For it to stand as her Summary of Argument, she needs an extension of time.
First, the Outline of Argument seeks to challenge the making of the consent orders agreed between the Trustee, the first respondent, and D Pty Ltd. It asserts that the appellant was denied procedural fairness as she only became aware of the proposed consent orders the day before the hearing. This was because she was denied the opportunity to get legal advice and to call evidence such as the deed that governed the D Pty Ltd Superannuation Fund and other evidence as to the obligations of that fund to the appellant (Appellant’s Outline of Argument filed on 26 September 2022, paragraphs 3–7).
Generously construed, these submissions pick up Grounds 1 to 5.
During the course of the hearing on 21 February 2022, the appellant asked for an adjournment to the following day so that she could look at the proposed consent orders and obtain some legal advice. At 11.49 am, his Honour stood the matter down until 2.02 pm for that purpose. (Transcript 21 February 2022, p.15 lines 15–18)
At 2.02 pm, a solicitor acting for the appellant appeared to seek an adjournment of the proceedings. After his Honour informed the lawyer that the adjournment application had been heard and refused, the lawyer did not make a further adjournment application and sought leave to withdraw, which was granted.
Whilst the Outline of Argument asserts that the lawyer’s application for a short adjournment was refused, that is not what occurred. The Outline of Argument does not deign to say why the primary judge’s decision to refuse the adjournment, if that is what it was, was erroneous.
However, these submissions entirely overlook the opportunity to file further evidence and written submissions given to the appellant by the directions of 25 February 2022. That delay in the proceedings also enabled the appellant to obtain legal advice.
Whilst we do not accept that the primary judge was obliged to give the appellant a further opportunity to adduce evidence and submissions, the fact that his Honour did so is fatal to the appellant’s claim to a want of procedural fairness. The appellant was given the possibility of calling the relevant evidence but failed to do so (see Kioa v West (1985) 159 CLR 550 at 582). It follows that his Honour cannot have erred by relying on the absence of the trust deed or other evidence as to the obligations of D Pty Ltd to the appellant because the appellant could have called such evidence, but did not.
The balance of the Outline of Argument is not referrable to the grounds of appeal. It is merely a complaint as to the conduct of the Trustee and the first respondent.
In her oral submissions to us, the appellant emphasised that the first respondent was not entitled to act on behalf of D Pty Ltd and could not cause it to agree to the consent orders.
A number of difficulties arise. Whilst it may be accepted that the appellant raised this point intermittently with the primary judge and in Ground 18 of the Notice of Appeal, the appellant made no formal application as to the lack of standing of the first respondent as the director of D Pty Ltd or call any evidence to demonstrate that he had been removed as a director. That remained the position after his Honour’s directions of 25 February 2022.
The appellant accepted that the first respondent is still registered as D Pty Ltd’s director.
In these circumstances, it is impossible to identify error on the part of the primary judge.
We are conscious that the appellant is acting for herself. We have closely examined his Honour’s reasons, the relevant documents in the Appeal Book and the transcript. No error is apparent to us (Bahonko v Sterjov (2008) 166 FCR 415).
Conclusion and costs
We are not persuaded that the proposed appeal is arguable or that the application for leave to appeal has any merit.
For these reasons the appeal will be dismissed pursuant to r 13.45 of the Rules.
None of the parties filed a schedule of costs in accordance with the directions of the appeal judicial registrar. Counsel for the Trustee did not pursue an order for costs. The first respondent did so at the hearing, but was unable to identify any costs incurred by lawyers.
There will be no order as to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Kari & Brasch. Associate:
Dated: 11 November 2022
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