Uttar & Rajendra

Case [2024] FedCFamC1A 46

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Uttar & Rajendra [2024] FedCFamC1A 46

Appeal from: Orders made 5 February 2020
Appeal number: NAA 19 of 2024
File number: SYC 6488 of 2014
Judgment of: AUSTIN J
Date of judgment: 28 March 2024
Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to refuse an extension of time within which she may appeal from orders made in February 2020 (“the orders”) – Where the orders appointed the respondent as the sole trustee for sale of the parties’ property – Where the applicant wants her proposed appeal from the orders allowed and the orders set aside – Where the orders have been executed – Where neither party has enjoyed any legal or beneficial interest in the property since the third party purchaser became the exclusive registered proprietor of it in April 2023 – Where any appeal now from spent orders would be an exercise in futility and waste – Where there is no justiciable controversy to be quelled by the grant of any appellate remedy – Where the applicant failed to explain how the orders were vitiated by jurisdictional error – Application in an Appeal dismissed – Where the applicant acceded to pay the costs of the respondent in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 79, 80, 114, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Real Property Act 1900 (NSW) s 86
Cases cited:

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1

Marriage of Phillips (1985) FLC 91-634

Marriage of Ravasini (1983) FLC 91-312

Marriage of Warwick (1983) FLC 91-342

Moliere & Van Wyk (1980) FLC 90-911

Pera v Pera (2008) FLC 93-372; [2008] FamCAFC 87

Pitman & Hynes (No.3) [2021] FamCAFC 82

Stanley v DPP (NSW) (2023) 407 ALR 222; [2023] HCA 3

Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 38
Date of hearing: 28 March 2024
Place: Newcastle (via video link)
The Applicant: Litigant in person
Counsel for the Respondent: Ms Rusiti
Solicitor for the Respondent: Arch Law (Australia) Pty Ltd

ORDERS

NAA 19 of 2024
SYC 6488 of 2014

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

MS UTTAR

Applicant
AND:

MR RAJENDRA

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 8 March 2024 is dismissed.

2.Save as to costs, the Response to an Application in an Appeal filed on 26 March 2024 is dismissed.

3.The applicant shall pay the respondent’s costs of and incidental to the review hearing, fixed in the sum of $3,500.

Note:   The form of the…

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AGLC
Uttar & Rajendra [2024] FedCFamC1A 46
Case
[2024] FedCFamC1A 46
Decision Date

CaseChat Overview and Summary

The application before the court sought a review of the decision made by the appeal registrar on 19 February 2024, which had refused an extension of time within which the applicant could appeal from orders made in February 2020. The applicant, Ms Uttar, and the respondent, Mr Rajendra, are former spouses whose cause was settled by consent orders in February 2020, which included the sale of their former family home. The respondent was appointed as the sole trustee for the sale of the property, and the applicant refused to vacate the property when ordered, leading to enforcement litigation. The applicant now sought to appeal the original orders, which had been executed when the property was sold to a third party in July 2022. The court was required to determine whether the appeal registrar’s decision to refuse an extension of time was correct and whether there was any justification for allowing the appeal from the executed orders.

In dismissing the application, the court found that any appeal from the executed orders would be futile. The sale of the property had been completed, and neither party had any legal or beneficial interest in the property since the third party became the exclusive registered proprietor in April 2023. The court also noted that the applicant had failed to explain how the orders were vitiated by jurisdictional error. The court held that there was no justiciable controversy to be quelled by the grant of any appellate remedy and that the appeal registrar’s decision to refuse an extension of time was correct. The court further found that the application in an appeal was dismissed and that the applicant should pay the respondent’s costs of $3,500.

The court made orders dismissing the application in an appeal and ordering the applicant to pay the respondent’s costs of $3,500. The court found that the appeal registrar’s decision to refuse an extension of time was correct and that there was no justiciable controversy to be quelled by the grant of any appellate remedy. The court held that any appeal from the executed orders would be futile, and the applicant had failed to explain how the orders were vitiated by jurisdictional error. The dismissal of the application in an appeal and the order for the applicant to pay the respondent’s costs was deemed appropriate given the circumstances of the case.

Orders

Orders of the court

NAA 19 of 2024

SYC 6488 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS UTTAR

Applicant

AND:

MR RAJENDRA

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 8 March 2024 is dismissed.

2. Save as to costs, the Response to an Application in an Appeal filed on 26 March 2024 is dismissed.

3. The applicant shall pay the respondent’s costs of and incidental to the review hearing, fixed in the sum of $3,500.

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

These reasons explain the dismissal of an application to review the decision made by the appeal registrar on 19 February 2024, refusing an extension of time within which the applicant may appeal from orders made in February 2020 and ordering the applicant to pay the respondent’s costs of $3,500 in respect of the failed application.Background The applicant and the respondent are former spouses. They separated in 2014 and the applicant commenced proceedings under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) some months later seeking financial relief. The cause was listed for trial in April 2019, but compromised by consent orders made on the second day of trial. The agreed property settlement orders required the sale of the former family home (“the property”) and the division of the net proceeds of sale between them. The applicant, who was the sole registered proprietor of the property, was to have exclusive occupation until its sale. The residual orders are not relevant for present purposes. For reasons which are unnecessary to discuss, the sale of the property did not proceed and enforcement litigation ensued. On 5 February 2020, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders appointing the respondent as the sole trustee for sale of the property (Order 1), enabling the respondent unfettered access to the property to discharge his function as the trustee for sale (Order 2), and requiring the applicant to pay the respondent’s costs of $5,000 in relation to the dispute from her share of the net proceeds realised on the sale of the property (Order 3). No appeal was brought from those orders. On or about 31 March 2020, in his capacity as trustee for sale, the respondent contracted to sell the property to a third party purchaser for $3 million. The terms of the contract specified it would not be completed for two years. In advance of the projected contract completion date in March 2022, the applicant refused to vacate the property and it was necessary for the respondent to obtain and execute a warrant for possession of the property. Having lawfully ejected the applicant from the property, the respondent finally completed the sale of the property to the purchaser on 10 July 2022. Complications arose in the process of registering the purchaser as the legal proprietor of the property because, first, the respondent had not registered on the title to the property the orders made in February 2020 appointing him as the trustee for sale of the property, and secondly, the applicant registered a caveat on the title to the property and refused to remove it. Further orders were made on 30 November 2022 enabling the Court’s registrar to execute a notice withdrawing the caveat on title to the property, which subsequently occurred. Eventually, in about late April 2023, the purchaser became the sole registered proprietor of the property. On 18 January 2024, the applicant filed an Application in an Appeal seeking an extension of time within which to appeal from the consequential orders made nearly four years beforehand on 5 February 2020.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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