Valder and Saklani and Anor

FAMILY COURT OF AUSTRALIA

VALDER & SAKLANI AND ANOR [2020] FamCA 502

FAMILY LAW – BANKRUPTCY – Where the applicant seeks to set aside consent orders between the respondent and second respondent – Where the applicant was a creditor to the bankrupt estate of the second respondent – Where the second respondent was since discharged from bankruptcy – Where the applicant does not have standing to seek an application under section 79A of the Family Law Act 1975 (Cth) – Application dismissed.

Bankruptcy Act 1966 (Cth) s 153
Family Law Act 1975 (Cth) s 79A

Boensch v Pascoe (2019) 375 ALR 15
Official Trustee in Bankruptcy & Gavalas and Anor (2017) 318 FLR 22
Todd v Official Receiver (1986) 14 FCR 177

APPLICANT: Ms Valder

1st RESPONDENT: Ms Saklani

2nd RESPONDENT: Mr B Saklani

FILE NUMBER: CAC 2098 of 2016

DATE DELIVERED: 19 June 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 June 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE 1ST RESPONDENT: Mr Laughton SC (written submissions only)

SOLICITOR FOR THE 1ST RESPONDENT: Holmes Donnelly & Solicitors

COUNSEL FOR THE 2ND RESPONDENT: Mr McGovern SC with Mr Batley (direct brief)

SOLICITOR FOR THE 2ND RESPONDENT: In person

Orders

IT IS ORDERED

1. That the Initiating Application filed 19 December 2016 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valder & Saklani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 2098 of 2016

Ms Valder

Applicant

And

Ms Saklani

First Respondent

And

Mr B Saklani

Second Respondent

REASONS FOR JUDGMENT

1. Ms Valder (“the applicant”) has filed an application in the Family  Court of Australia seeking to set aside property orders made by consent between Ms Saklani (“the first respondent”) and Mr B Saklani (“the second respondent”) which were made on 13 November 2013. The first and second respondents were married to each other.

2. The applicant relies on the provisions of section 79A of the Family Law Act 1975 (Cth) (“the Act”). The applicant asserts that she has standing to make the application as:

   …a person affected by an order made by a court under section 79 in property settlement proceedings.

3. The applicant asserts that she is a creditor of the husband and thus a “person  affected.”

4. That assertion is denied by the first and second respondents.

HISTORY

1. Some background is needed to give context to the discussion which follows.

2. In August 2009, the applicant brought proceedings against the second respondent…