FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saklani & Valder [2023] FedCFamC1A 163
Appeal from: Valder & Saklani(No 3) [2023] FedCFamC1F 98 Appeal number(s): NAA 67 of 2023 File number(s): CAC 2098 of 2016 Judgment of: ALDRIDGE, JARRETT & STRUM JJ Date of judgment: 22 September 2023 Catchwords: FAMILY LAW – APPEAL – BANKRUPTCY – Where the primary judge set aside property settlement orders made by consent between the appellant and the cross-appellant – Where an order was made in the Supreme Court of New South Wales for equitable compensation to be paid by the cross-appellant to the first respondent – Where the cross-appellant became bankrupt on his own petition – Where the first respondent was a creditor to the bankrupt estate of the cross-appellant – Where the first respondent was successful in her claims under s 79A and s 106B of the Family Law Act 1975 (Cth) before the primary judge – Where the primary judge ordered that the first respondent should be paid her equitable compensation from the sale of the land – Where the remaining assets of the appellant and cross-appellant were to be divided as agreed between them – Where the appellant contends that the primary judge erred in ordering the first respondent be paid her equitable compensation before the property is divided between the appellant and cross-appellant – Whether the orders made were just and equitable – Adequacy of reasons – Error of law – Challenges to weight – Where an order of the primary judge is amended by the Full Court to avoid double payment – Where there is no opposition by the parties to that order being amended – Otherwise, no error established – Appeal dismissed – Appellant and cross-appellant to pay the costs of the first respondent in a fixed sum.
FAMILY LAW – CROSS-APPEAL – BANKRUPTCY – Where the cross-appellant contends the primary judge erred by treating the land as divisible property – Whether the first respondent would have been able to recover her debt under the original consent orders – Application of s 75(2)(ha) of the Family Law Act 1975 (Cth) – Costs order – Procedural fairness – Error of law – Whether the cross-appellant’s discharge from bankruptcy released him from any claims of the first respondent – Where the first respondent remained a claimant with a right to prove in the estate as a creditor – No error established – Cross-appeal dismissed – Cross-appellant and appellant to pay the costs of the first respondent in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – RECUSAL – Where the cross-appellant sought for the disqualification of each member of the Full Court – Where the cross-appellant filed this application after the appeal was heard – Apprehended bias – Separate reasons provided by each judge – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the test is not satisfied – Application…
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- [2023] FedCFamC1A 163
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CaseChat Overview and Summary
The court had to determine whether the orders made were just and equitable, whether there was an error of law, and whether the challenges to weight were valid. The Full Court amended the order of the primary judge to avoid double payment and there was no opposition by the parties to that order being amended. Otherwise, no error was established. The appeal was dismissed, and the appellant and cross-appellant were to pay the first respondent's costs of the appeal and cross-appeal fixed in the sum of $13,923.51 within 28 days. The cross-appellant was to pay the first respondent's costs of the Application in an Appeal fixed in the sum of $1,200 within 28 days.
The cross-appellant contended that the primary judge erred by treating the land as divisible property and whether the first respondent would have been able to recover her debt under the original consent orders. The application of section 75(2)(ha) of the Family Law Act 1975 (Cth) was also considered. The court held that no error was established and the cross-appeal was dismissed. The cross-appellant and appellant were to pay the first respondent's costs of the appeal and cross-appeal fixed in the sum of $13,923.51 within 28 days.
The cross-appellant also sought for the disqualification of each member of the Full Court on the basis of apprehended bias. The application was filed after the appeal was heard and the court held that the test for recusal was not satisfied. The application was dismissed, and the cross-appellant was to pay the first respondent's costs of the Application in an Appeal fixed in the sum of $1,200 within 28 days.
Orders
Orders of the court
NAA 67 of 2023
CAC 2098 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS SAKLANI
Appellant/Second Cross-Respondent
AND:
MS VALDER
First Respondent/First Cross-Respondent
MR B SAKLANI
Second Respondent/Cross-appellant
MR C SAKLANI (and another named in the Schedule)
Third Respondent/Third Cross-Respondent
ORDER MADE BY:
ALDRIDGE, JARRETT & STRUM JJ
DATE OF ORDER:
22 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 24 July 2023 is dismissed.
2. The appeal is allowed in part.
3. The cross-appeal is allowed in part.
4. Order 4(e) made on 24 February 2023 is varied as follows:
4. …
(e) in payment of so much of the sum of $1,602,705.89 that remains outstanding following compliance with Order 4(a) herein, to the third and fourth respondents.
5. Orders 5 and 6 made on 24 February 2023 are varied as follows:
5. Following agreement in writing between the applicant trustee and first respondent or assessment, due determination of the applicant’s proof of debt as it relates to costs in the equity proceedings yet to be assessed, the costs of the equity proceedings the amount so determined will be paid to the applicant subject to the terms of the orders of Katzmann J dated 8 November 2016 from the sum in Order 4(d) above and any balance will be paid to the first respondent.
6. In the event that the applicant has not commenced the application for assessment of costs within 28 days of the monies being placed in the controlled monies account as required by Order 4(d) then the monies are to be paid to the first respondent.
The first respondent has liberty to apply to the primary judge in relation to any issue of delay arising in respect of Order 5.
6. The appeal is otherwise dismissed.
7. The cross-appeal is otherwise dismissed.
8. The appellant and the cross-appellant, jointly and severally, are to pay the first respondent’s costs of the appeal and cross-appeal fixed in the sum of $13,923.51 within 28 days.
9. The cross-appellant is the pay the first respondent’s costs of the Application in an Appeal fixed in the sum of $1,200 within 28 days.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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