Saha & Lahiri (No 2)

Case [2022] FedCFamC1A 181

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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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

  1. This is an appeal against orders…

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AGLC
Saha & Lahiri (No 2) [2022] FedCFamC1A 181
Case
[2022] FedCFamC1A 181
Decision Date

CaseChat Overview and Summary

Ms Saha, the appellant, brought an appeal against an order that refused to grant her an extension of time to file an application pursuant to the Bankruptcy Act 1966 (Cth). The appeal was heard by Aldridge, Kari and Brasch JJ in the Federal Circuit and Family Court of Australia. The respondents to the appeal were Mr Lahiri, Mr Feltos, and D Pty Ltd as trustee for the D Pty Ltd Superannuation Fund. The primary issue before the court was whether the appellant had been denied procedural fairness when her appeal was considered for summary dismissal due to her failure to file a Summary of Argument within the time prescribed by the procedural orders. The court was also required to determine whether the proposed appeal was arguable and whether the application for leave to appeal had merit.

The court found that the appellant was not denied procedural fairness because she was notified by the appeals registry that her appeal would be considered for summary dismissal due to her failure to file a Summary of Argument. The court also found that the proposed appeal was not arguable and that the application for leave to appeal did not have merit. The court noted that the appellant had not provided any valid reason for her failure to file a Summary of Argument and that her appeal was unlikely to succeed. Therefore, the court dismissed the appeal pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and made no order as to costs.

In conclusion, the court found that the appellant was not denied procedural fairness and that her appeal was not arguable. The court dismissed the appeal and made no order as to costs. The decision of the court is final and binding on the parties.

Orders

Orders of the court

NAA 115 of 2022

BRC 8518 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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