Valder & Saklani
[2022] FedCFamC1F 390
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Valder & Saklani [2022] FedCFamC1F 390
File number(s): CAC 2098 of 2016 Judgment of: ALTOBELLI J Date of judgment: 24 May 2022 Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Joinder – Where Applicant’s substantial application includes property owned by the Third and Fourth Respondents – Where the Applicant seeks to join the Third and Fourth Respondents – Where the First Respondent opposes the application – Where the Third and Fourth Respondents did not attend Court despite being on notice-Where communication by email suggests adjournment sought- Adjournment declined-Finding that the Third and Fourth Respondents are necessary parties – Leave granted to the Applicant to join Third and Fourth Respondent – Where leave is granted to the Third and Fourth Respondents to make an application to vacate or vary this order on the next occasion. Legislation: Family Law Act 1975 (Cth) ss 79, 79A, 80 and 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.01 and 3.03
Division: Division 1 First Instance Number of paragraphs: 6 Date of last submission/s: 24 May 2022 Date of hearing: 24 May 2022 Place: Sydney Counsel for the Applicant: Horobin Solicitor for the First Respondent: Ms Donnelly Solicitor for the Second Respondent: Appeared in person ORDERS
CAC 2098 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VALDER
Applicant
AND: MS SAKLANI
First Respondent
MR B SAKLANI
Second Respondent
MR C SAKLANI
Third RespondentMS D SAKLANI
Fourth Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
24 MAY 2022
THE COURT ORDERS THAT:
1.The matter is adjourned for mention on 4 July 2022 at 9am.
2.Pursuant to rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, leave is granted to the Applicant to join Mr C Saklani as the Third Respondent and Ms D Saklani as the Fourth Respondents to these proceedings.
3.Leave is granted to the Third and Fourth Respondents to file and serve by 4pm on 10 June 2022 an Application in a Proceeding seeking to vary or discharge Order 2 of these orders, together with affidavits in support.
4.In the event the Third and Fourth Respondent do not make such application provided for by Order 3, by no later than 4pm on 24 June 2022 the Third and Fourth Respondents are to file and serve a Response to the Applicant’s Amended Initiating Application filed 26 April 2022 together with affidavits in support.
5.Within ten days of the date of these orders, the Third and Fourth Respondents are to file and serve a Notice of Address for Service.
6.Within seven days of the date of these orders, the First Respondent notify the Third and Fourth Respondents of these orders.
7.Costs are otherwise reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valder & Saklani has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J:
BACKGROUND
Regard must be had to the exchange that has taken place between Mr Horobin, Ms Donnelly, Mr B Saklani and myself.
This matter has a very long and complex history. The matter has been remitted for hearing and comes before me for case management in my capacity as case management Judge for Sydney.
The Applicant, Ms Valder, (“the Applicant”) is effectively a creditor or purports to be a creditor of Mr B Saklani (“the Second Respondent”). The relevant application before the Court is her Amended Initiating Application filed 26 April 2022. The Applicant seeks final and interim orders. The final orders seek, in effect, three forms of relief. Firstly, the Applicant seeks under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside property settlement orders made by consent between Ms Saklani (“the First Respondent”) and the Second Respondent. Secondly, the Applicant seeks that the transfer of a property from the First Respondent to, what the Court has heard is her children, be set aside pursuant to s 106B of the Act. Thirdly, the Applicant seeks under ss 79 and 80 of the Act a payment of a sum which would satisfy a judgment debt owed to her pursuant to orders made by the Supreme Court of New South Wales.
JOINDER APPLICATION
To give effect to the second form of relief, the Applicant seeks interim orders that the First Respondent’s children, Mr C Saklani and Mrs D Saklani (“the Third and Fourth Respondents”), be joined as respondents to the proceedings. The factual matrix is that the Third and Fourth Respondents received a property from their mother, the First Respondent, and the Applicant seeks that this transaction be set aside. The question for the Court is whether firstly, they are necessary parties pursuant to r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), and secondly, whether leave should be granted to the Applicant to join them as parties pursuant to r 3.03 of the Rules.
I am satisfied from the material before the Court and the knowledge that I have gained as a result of case managing this matter that the Third and Fourth Respondents are clearly necessary parties. They have been notified of the proceedings. I have material before me in the First Respondent’s tender bundle. This includes an email from Mr C Saklani dated 13 May 2022, the effect of which is that even though he was notified on 4 May 2022, he required an adjournment so as to get legal advice. The email explains that he had been diagnosed with COVID but then able to leave isolation and that he is working night shifts. The First and Second Respondents urge caution on the Court before I deal with the matter. If I make an order granting leave on the basis of the impression formed from the Applicant’s evidence that they are necessary parties, I would not have the benefit of evidence from the Third and Fourth Respondents.
CONCLUSION
It would be an unusual course of action to adopt, but this is a highly unusual case. As I foreshadowed, this matter has a very long and complex litigation history, and the Applicant, through her counsel, has raised the question of delay in the context of the case that the Applicant maintains has features of obfuscation. It is possible, however, to do two things at once in this case, and this is what I shall do. Firstly, leave is granted to the Applicant to join the Third and Fourth Respondents, but to also grant leave to the Third and Fourth Respondents to apply before me on the next occasion for the order to be revoked. The matter is adjourned to 4 July 2022 at 9 am for another one-hour fixture.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 24 May 2022
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