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[2025] NSWCA 219
respondent. Leave to appeal sought by the second further amended summons was refused, and the applicant was ordered to pay the respondents’ costs of that summons; the notices of motion filed on 4 June 2025...
The Court of Appeal refused permission to appeal. It concluded that the Supreme Court had dealt with the properties under its own trust and land-law powers, consistently with the earlier family-law property orders. The applicant had not shown that he held a caveatable interest in the properties, that a share of sale proceeds could reliably be calculated before settlement, or that the chattels, fairness or costs decisions involved an appealable error. The related motions were also dismissed with costs.
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2,342 words · generated 06/10/2026
Rahman v Rahman [2025] NSWCA 219 is a leave-to-appeal decision arising from a long-running dispute about the sale of two Roselands properties, referred to in the judgment as property 1 and property 1A. The principal reasons were delivered by Payne JA, with McHugh JA and Free JA agreeing: [1], [143]-[144].
12 cited instruments linked from this judgment.
The applicant, Mr Fahmid Rahman, and the first respondent, Ms Mita Rahman, were formerly married and were registered proprietors of the properties. On 24 March 2023, the Federal Circuit and Family Court of Australia made final property settlement orders, including an order for the properties to be sold and the net proceeds distributed. The first respondent was initially appointed trustee for sale: [9].
Mr Rahman later commenced proceedings in the NSW Supreme Court. The primary judge, Slattery J, found that the parties were at an impasse about sale steps and, after Ms Rahman relinquished the trusteeship, appointed independent trustees, Stefano Calabretta and Andrew Fleming: [10]-[17]. The Supreme Court also made orders to enable the sale, remove caveats, give possession to the trustees, and address personal property left at property 1A: [18]-[25], [31]-[37].
Mr Rahman and his adult daughter, Wafa Rahman, completed the purchase of property 1 on 4 June 2025. They later contracted to buy property 1A for $1.7 million following an auction on 23 August 2025. Settlement was due on 6 October 2025: [4]-[5]. The applicant sought to use an asserted future share of sale proceeds towards the price of property 1A, an arrangement he called a “gap order”: [50]-[51], [88]-[90].
The Court of Appeal application covered a wide range of complaints: that the Supreme Court lacked jurisdiction or should have transferred the matter; that the applicant's caveat should not have been removed; that the trustees should not have been appointed; that personal chattels were mishandled; that a gap order and stay should have been made; that procedural fairness was denied; and that costs orders should be set aside: [70]-[73]. The Court refused leave and dismissed the two outstanding motions with costs: [142].
The controlling gateway was the leave threshold. Payne JA stated that leave requires “an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable”: [99]. The judgment also notes that discretionary decisions attract the additional restraint associated with House v The King (1936) 55 CLR 499: [99]. The Court therefore did not treat disagreement with earlier decisions as enough. It considered whether the proposed grounds disclosed an arguable legal error of the required kind.
On jurisdiction, the Court applied the test in Chaudhary v Chaudhary [2017] NSWCA 222. A matter arises under the Family Law Act if the relevant right or duty owes its existence to that Act or depends on it for enforcement: [101]. The orders under challenge concerned the Supreme Court's inherent jurisdiction, the Trustee Act 1925 (NSW), and the Real Property Act 1900 (NSW). They did not depend on a right or duty created by the Family Law Act: [102]. The Supreme Court's orders also did not vary the March 2023 family-law orders. The Court understood those orders as providing for the properties to be sold on the market to obtain the best reasonably available price: [103].
The cross-vesting argument also failed. The Supreme Court proceeding had been commenced by the applicant, and he did not establish that it duplicated the Federal Circuit and Family Court proceedings or created a risk of inconsistent remedies: [105]-[106]. The Court treated the decision whether to cross-vest as discretionary and found no arguable error in declining to do so: [106].
On the caveat, the Court began with the statutory character of a caveat. Section 74F of the Real Property Act concerns a claimed unregistered legal or equitable interest in land: [113]. Payne JA referred to J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 for the function of a caveat, which is to prevent registration of dealings while the caveator pursues any available remedy, not to create an interest in the land: [113]. The family-law orders gave Mr Rahman a right to a percentage of net sale proceeds. The Court characterised that as a right to receive money, not an interest in either property capable of supporting the caveat: [115]. It also observed that property 1 was now registered in the names of Mr Rahman and his daughter, and they had contracted to buy property 1A: [116].
The proposed gap order failed because the applicant's ultimate share could not be reliably calculated before settlement and resolution of costs and liabilities. Potential capital gains tax, other liabilities, and the trustees' costs could affect the amount ultimately available: [120]. The Court agreed that it was necessary to know the sale proceeds before determining the final notional entitlement: [120]-[122]. Although trustees had allowed a credit of about $190,000 in connection with property 1, that did not establish a present entitlement to a further amount for property 1A: [64], [119]-[120]. The Court also found no basis to delay settlement: [123].
The complaints about chattels did not reveal an arguable error. The orders had provided opportunities to remove items and later made storage available. Payne JA noted that the trustees offered the applicant the storage key, which he declined, and that no evidence of the asserted breach of fiduciary duty was identified: [126]. The procedural fairness claim similarly failed because the applicant had “abundant opportunities” to make oral and written submissions: [129]. Finally, the costs orders were consistent with the ordinary rule that costs follow the event, and the applicant had not challenged the substantive outcomes of the motions: [132]-[138].
The judgment does not announce a new rule of Australian law. It applies established principles to a particular procedural and property-sale dispute.
Before this decision, the legal framework identified in the judgment included the threshold for leave to appeal, the restraint governing appellate review of discretionary decisions, the test for whether a matter arises under the Family Law Act, the statutory basis for lodging caveats, and the ordinary costs rule. The Court cited McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 and PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 in stating the leave threshold, and House v The King for restraint in reviewing discretionary decisions: [99]. It relied on Chaudhary for the Family Law Act characterisation test: [101]. It referred to section 74F of the Real Property Act and J & H Just for caveat principles: [113]. For costs, it applied section 98 of the Civil Procedure Act 2005 (NSW), rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), and Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219: [132].
After the decision, those principles remain as applied, not displaced. The case illustrates that a family-law property settlement does not, by itself, make every later dispute about implementation a matter arising under the Family Law Act. The Court looked at the source of the particular rights and duties and found that the challenged orders rested on NSW trust and land-law powers: [102]-[103]. It also illustrates the distinction between an entitlement to a share of sale proceeds and an interest in the land itself for caveat purposes: [115].
The judgment's treatment of a proposed set-off is similarly fact-specific. It does not establish a general rule against credits or “gap orders”. Rather, it held that this applicant had not demonstrated an entitlement to a further distribution and that the relevant net amount could not be reliably calculated while the sale and costs issues remained unresolved: [119]-[122]. The ultimate allocation of proceeds and trustees' costs remained for later determination: [79], [120]-[121].
At [99], Payne JA stated that leave requires “an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable.” In plain English, the applicant needed more than a plausible disagreement with the primary judge. He had to show a sufficiently significant legal issue or a clear injustice of the specified kind.
At [102], the Court held that “No order made by his Honour relied on a right or duty owing its existence to the Family Law Act.” In plain English, the relevant orders came from other legal powers, even though the properties had previously been dealt with in a family-law settlement.
At [103], the Court said that Slattery J did not vary the Federal Circuit and Family Court's orders and that his orders were consistent with them. The practical distinction was between changing the family-law settlement and taking steps to implement its sale arrangements.
At [115], the Court said that the applicant had “a mere right to receive his percentage” of net sale proceeds. In plain English, the Court distinguished a future financial claim to sale money from ownership or another equitable interest in the land itself. That distinction was central to the caveat issue.
At [120], the Court accepted that the applicant's final entitlement could not be reliably determined before the property 1A sale settled. Potential tax, costs and other liabilities could affect the net amount. The plain-English point is that a possible share of proceeds was not sufficiently certain to be treated as an available part of the purchase price at that stage.
At [129], Payne JA said that the applicant had “abundant opportunities” to make oral and written submissions. The Court therefore rejected the claim that he had been denied a fair opportunity to be heard.
At [132], the Court restated the ordinary costs position: costs are discretionary and generally follow the event. In plain English, a party who unsuccessfully brings a motion will ordinarily be ordered to pay the costs associated with it, unless a reason is shown to depart from that approach.
The decision is most relevant where an appeal requires leave and the proposed grounds challenge procedural or discretionary orders. It demonstrates the need to identify a legal error, a question of principle or public importance, or a reasonably clear injustice, rather than simply repeat disagreement with the result: [99], [104], [122].
It is also relevant where a dispute follows family-law property orders but later proceedings concern the administration of a trust for sale, removal of a land-title caveat, possession, or steps to complete a sale. The character of the rights and powers actually in issue matters. The Court found no Family Law Act source for the relevant rights and duties where the orders were made under the Supreme Court's inherent jurisdiction and NSW statutes: [101]-[103].
For caveats, the decision may be pertinent where a person claims a future share of sale proceeds but cannot identify an unregistered legal or equitable interest in the land. The Court treated the applicant's right to money under the family-law orders as distinct from an interest in the land: [113]-[116]. It does not decide every possible caveat claim based on a financial arrangement; its reasoning concerns the rights shown in this record.
The decision also provides a fact-specific example of a proposed set-off failing where the amount potentially available is uncertain because sale proceeds, contingent liabilities and costs have not been determined. The applicant's earlier $190,000 credit for property 1 did not establish a further credit for property 1A: [64], [119]-[122].
Finally, the chattels and costs reasoning may be relevant where orders provide collection opportunities or storage, and an applicant later alleges procedural unfairness or trustee misconduct. In this case, the evidence of offers to collect the goods and the absence of identified evidence of breach weighed against leave: [126], [129].
The supplied judgment contains no decisions issued after Rahman v Rahman [2025] NSWCA 219 and therefore does not establish how later courts have treated it. The judgment itself refers to several earlier proceedings in the same dispute, including Rahman v Rahman [2025] NSWCA 126, Rahman v Rahman (No 2) [2025] NSWCA 194, and various Supreme Court decisions: [26]-[29], [53]-[61]. Those decisions form part of the procedural background; they are not later treatment of this Court of Appeal judgment.
The reasoning in this decision relies on established authorities rather than claiming to alter them. It applies Chaudhary on when a matter arises under the Family Law Act, House v The King to discretionary decisions, J & H Just on the function of caveats, and Doppstadt on the costs-follow-the-event principle: [99], [101], [113], [132]. Any account of subsequent appellate or trial-court treatment would require sources not included in the judgment provided here.
The judgment expressly leaves the ultimate distribution of sale proceeds unresolved. The Court noted that final entitlements and the allocation of trustees' costs were to be addressed after the sale of property 1A and payment of proceeds: [79], [120]-[121]. It therefore did not determine whether Mr Rahman would ultimately receive any further net proceeds or which party would bear the trustees' costs.
The decision also does not determine the final effect of all possible liabilities on the parties' shares. It identifies potential capital gains tax, costs orders and creditor claims as matters that could affect the net amount: [67], [120]. Those issues remained contingent on later accounting and proceedings.
Nor does the judgment set out a general test for when a future entitlement to sale proceeds may be sufficiently certain to support a credit against a purchase price. It decided that the applicant's claim was not established and could not be reliably quantified on the evidence and timing before the Court: [119]-[122].
The Court rejected the claimed trustee misconduct because no evidence of a breach was identified: [126]. It did not make a broader finding about trustees' duties in other circumstances, or about the merits of any properly evidenced claim that might arise on a different record.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Rahman v Rahman [2025] NSWCA 219
Hearing dates: 10 September 2025
Date of orders: 2 October 2025
Decision date: 02 October 2025
Before: Payne JA at [1];
McHugh JA at [143];
Free JA at [144]
Decision: (1) Leave to appeal sought by the second further amended summons is refused.
(2) Applicant to pay the respondents’ costs of the second further amended summons.
(3) Notice of motion e-filed on 4 June 2025 is dismissed with costs.
(4) Notice of motion e-filed on 15 August 2025 is dismissed with costs.
Catchwords: APPEALS — Leave to appeal — whether any issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable has been shown — application refused
COSTS — Party/Party — application of the general rule that costs follow the event — no error in ordering that the applicant pay the respondents’ costs of the notices of motion he unsuccessfully brought
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98
Conveyancing Act 1919 (NSW) s 66G
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(1)
Real Property Act 1900 (NSW) s 74K
Supreme Court Act 1970 (NSW) ss 43, 46, 101
Trustee Act 1925 (NSW) s 70
Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 51.47
Cases Cited: Chaudhary v Chaudhary [2017] NSWCA 222
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
House v The King (1936) 55 CLR 499
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
McEvoy v Wagglens Pty Ltd [2021] NSWCA 104
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Rahman v Rahman [2024] NSWSC 1616
Rahman v Rahman [2025] NSWSC 752
Rahman v Rahman (No 2) [2025] NSWSC 516
Rahman v Rahman (No 3) [2025] NSWSC 678
Rahman v Rahman (No 4) [2025] NSWSC 801
Rahman v Rahman [2025] NSWCA 126
Rahman v Rahman (No 2) [2025] NSWCA 194
Young v Lalic [2006] NSWSC 18
Category: Principal judgment
Parties: Mr Fahmid Rahman (Applicant)
Ms Mita Rahman (First Respondent)
Stefano Calabretta (Second Respondent)
Andrew Fleming (Third Respondent)
Representation: Counsel:
In person (Applicant)
J Brown (First Respondent)
T O’Brien / L McIntyre (Second and Third Respondents)
Solicitors:
In person (Applicant)
Marsdens Law Group (First Respondent)
Fleming Law (Second and Third Respondents)
File Number(s): 2025/202852
Publication restriction: None
[This headnote is not to be read as part of the judgment]
The applicant, Mr Fahmid Rahman, commenced proceedings in the Equity Division of the Supreme Court against his former partner, Ms Mita Rahman (the first respondent). The proceedings concerned, in large part, the sale of two properties in Roselands (“property 1” and “property 1A”). The proceedings in the Court below have largely been case managed by Slattery J. Among other things, his Honour ordered that independent trustees for sale be appointed for property 1 and property 1A. Those trustees, Stefano Calabretta and Andrew Fleming, are the second and third respondents.
The applicant and his adult daughter, Ms Wafa Rahman, have now completed the purchase of property 1 and are the registered proprietors of that property. As to property 1A, the applicant and his daughter have contracted to buy the property. The settlement of that property is due to take place on 6 October 2025.
In this appeal, the applicant made a number of complaints about Slattery J’s orders to date. Some of these complaints have been separately dealt with by Adamson JA, Kunc J, Price AJA and Lindsay J in other hearings. The applicant did not challenge any of the substantive orders made by those judicial officers, but sought to dispute the costs orders made by their Honours. The applicant requires leave to appeal on each of the grounds sought to be advanced.
The complaints made by the applicant can be summarised as follows:
(i) whether the orders made by Slattery J, including those in relation to the appointment of the trustees and removal of the caveats, were outside the jurisdiction of the Court, and whether Slattery J erred in failing to cross-vest the proceedings to the Federal Circuit and Family Court of Australia;
(ii) whether Slattery J erred in removing the applicant’s caveat;
(iii) whether Slattery J erred in failing to make orders permitting the applicant to apply his “notional entitlement” towards the purchase of property 1A, what the applicant has called a refusal to make a “gap order”, and whether the settlement of property 1A should be stayed;
(iv) whether Slattery J erred in making orders permitting the trustees to remove the applicant’s chattels from property 1A;
(v) whether the applicant was denied a fair opportunity to be heard; and
(vi) whether Adamson JA, Kunc J, Price AJA and Lindsay J erred in making costs orders against the applicant.
The Court (Payne JA, McHugh JA and Free JA agreeing) held, refusing the application for leave to appeal:
As to issue (i):
(1) Slattery J did not exercise jurisdiction arising under the Family Law Act 1975 (Cth). His Honour made orders within the Supreme Court’s inherent jurisdiction, pursuant to the Trustee Act 1925 (NSW) to appoint new trustees, and pursuant to the Real Property Act 1900 (NSW) relating to the removal of a caveat: [100]-[104].
Chaudhary v Chaudhary [2017] NSWCA 222 applied; Young v Lalic [2006] NSWSC 18 discussed.
(2) No error has been shown in Slattery J’s decision not to make orders under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) cross-vesting this matter to the Federal Circuit and Family Court of Australia. That was a discretionary decision. There was no evidence that the proceedings before Slattery J were “parallel duplicative proceedings” or that “inconsistent remedies” were sought in the Supreme Court proceedings compared to the Federal Circuit and Family Court of Australia proceedings: [105]-[111].
As to issue (ii):
(3) The applicant has not demonstrated that the applicant had a legal or equitable interest in either property when Slattery J ordered that the caveat be removed. The applicant had a mere right to receive his percentage, as identified by orders of the Federal Circuit and Family Court of Australia, of the net proceeds of sale of the properties: [112]-[118].
J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 discussed.
As to issue (iii):
(4) The applicant could not demonstrate any entitlement, beyond mere assertion, to a distribution which he could apply towards the purchase of property 1A. Slattery J was correct to find that there was insurmountable difficulty with the applicant’s proposal to determine his final entitlements to the proceeds of sale of property 1 and property 1A before the sale of property 1A had been settled: [119]-[122].
(5) No basis has been shown for the making of an order to stay the settlement of property 1A: [123]-[124].
As to issue (iv):
(6) No error has been shown in relation to the generous orders made by Slattery J allowing the applicant access to property 1A to remove his property. Kunc J made even more generous orders which provided that the trustees were empowered to arrange for a third-party storage facility for the storage the applicant’s chattels: [125]-[128].
As to issue (v):
(7) The applicant was afforded abundant opportunities to make oral and written submissions to numerous members of this Court. It was the applicant who invoked the jurisdiction of the Court. There was no denial of procedural fairness: [129]-[131].
As to issue (vi):
(8) The power to award costs is in the discretion of the court and is subject to the general rule that costs should follow the event. The applicant did not challenge the substantive orders made in any of these cases. No basis was shown to disrupt the costs orders correctly made by the respective judges: [132]-[133].
Civil Procedure Act 2005 (NSW) s 98; Uniform Civil Procedure Rules 2005 (NSW) r 42.1; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 applied.
(9) No arguable error has been shown in each of the substantive decisions of Adamson JA, Kunc J, Price AJA and Lindsay J: [134]-[138].
PAYNE JA: On 10 October 2024, Mr Fahmid Rahman, the applicant, commenced proceedings in the Equity Division of the NSW Supreme Court against his former partner, Ms Mita Rahman (the first respondent). The proceedings concerned, in large part, the sale of two properties in Roselands (which I will refer to as “property 1” and “property 1A”).
On 28 November 2024, in circumstances I will explain in greater detail, the primary judge, Slattery J, ordered that independent trustees for sale be appointed for property 1 and property 1A: Rahman v Rahman [2024] NSWSC 1616. Those new trustees, Stefano Calabretta and Andrew Fleming, are the second and third respondents in this appeal.
The proceedings in the Court below have largely been case managed by Slattery J. The matter is next listed before Slattery J on 24 October 2025: Rahman v Rahman (No 4) [2025] NSWSC 801 at [36]. A number of additional notices of motion making complaints about Slattery J’s orders to date have been filed by the applicant and separately dealt with by Adamson JA, Kunc J, Price AJA and Lindsay J in other hearings. To some extent, the present application for leave to appeal encompasses the orders made by all of those judicial officers.
On 4 June 2025, the applicant and his adult daughter, Ms Wafa Rahman, completed the purchase of property 1. The applicant and his daughter are now the registered proprietors of property 1.
On 23 August 2025, property 1A was offered for sale by auction. The applicant and his daughter were the successful bidders and contracted to buy the property for $1.7 million. The settlement of that property is due to take place on 6 October 2025. It is clear that the applicant was aware, at the time the contract for sale was entered into, that he had no agreement with the trustees for sale to use any alleged “equity” in either property to “pay” any part of the $1.7 million purchase price for property 1A.
At the outset of the hearing in this Court on 10 September 2025, the applicant was granted leave to file in Court:
A second further amended summons seeking leave to appeal in the form annexed and marked “A” to the affidavit of Fahmid Rahman affirmed on 2 September 2025; and
A draft notice of appeal in the form annexed and marked “B” to the affidavit of Fahmid Rahman affirmed on 2 September 2025.
The applicant requires leave to appeal on each of the grounds sought to be advanced in the second further amended summons and in the draft notice of appeal. For the reasons which follow, leave to appeal should be refused with costs. Related notices of motion also before the Court, which were e-filed by the applicant on 4 June 2025 and 15 August 2025, should also be dismissed with costs.
In what follows I set out the relevant facts and the procedural history to the second further amended summons and related motions before the Court.
The applicant and the first respondent were married and were the registered proprietors of property 1 and property 1A. They subsequently divorced. On 24 March 2023, the Federal Circuit and Family Court of Australia made orders giving effect to a final property settlement between the applicant and the first respondent. Those orders included an order appointing the first respondent as the sole trustee for the sale of property 1 and property 1A.
On 10 October 2024, the applicant commenced proceedings in the Equity Division of the NSW Supreme Court against the first respondent. At that time, property 1 and property 1A remained unsold. The matter came before Slattery J who concluded that “the parties are paralysed by legal conflict about taking further steps towards sale of either property”: Rahman v Rahman [2024] NSWSC 1616 at [2]. Slattery J found that as trustee for sale, the first respondent had not taken active steps to sell property 1. The first respondent appeared to be reluctant to disturb her family’s occupation of property 1.
The couple’s daughter, who lived with the applicant, made an offer to purchase property 1A after a failed auction. The daughter had apparently claimed that the offer was accepted and resulted in a contract for sale of property 1A. The first respondent, however, disputed the existence of a concluded contract for sale. Slattery J concluded that at that time the situation was a stand-off which should not be allowed to continue, and that the Supreme Court had jurisdiction over the execution of trusts such as this trust for sale.
After being granted an adjournment to consider the position, the first respondent relinquished her trusteeship under the March 2023 orders. The applicant sought to be appointed trustee for sale in her place. The first respondent submitted that an independent trustee should be appointed in her place.
Slattery J found that neither litigant in person had any real conception of how difficult it would be for a person without legal qualifications to conduct litigation for the specific performance of the contract for the sale of property 1A or about whether that contract had been terminated. In these circumstances, Slattery J observed that it was clearly in the interests of the beneficiaries for independent trustees to be appointed. For reasons I will later explain, Slattery J held that the applicant was a plainly inappropriate trustee for the sale of the properties.
The other principal dispute agitated by the parties was the first respondent’s contention that a caveat lodged by the applicant over the title to the properties should be removed. Slattery J ordered that the caveat be extended for a period, and eventually on 18 February 2025, ordered that it be removed.
The applicant also made an application that Slattery J disqualify himself from further involvement in the proceedings, for allegedly treating the applicant unfairly by allowing the first respondent’s boyfriend to appear as a support person for her. That application was declined. Slattery J made orders about all of these matters on 28 November 2024.
Following Slattery J’s principal orders made on 28 November 2024, a series of additional orders were made by his Honour to facilitate the sale of the properties.
On 16 December 2024, Slattery J appointed Stefano Calabretta and Andrew Fleming as joint trustees for the sale of the property 1 and property 1A: see Rahman v Rahman (No 2) [2025] NSWSC 516 at [3].
On 18 February 2025, Slattery J made an order for possession in favour of the trustees with respect to property 1A. Slattery J also ordered that execution of the writ of possession be stayed until 28 March 2025. This was to allow the first respondent an opportunity to vacate property 1A according to a reasonable schedule of her choosing: see Rahman v Rahman (No 2) [2025] NSWSC 516 at [5].
On 18 February 2025, Slattery J ordered that the applicant withdraw caveats he had lodged over property 1 and property 1A, to enable the trustees to sell the properties. In the event the applicant did not withdraw the caveat, the Registrar was authorised to do so. The caveats were withdrawn: Rahman v Rahman (No 2) [2025] NSWSC 516 at [5].
The first respondent vacated property 1A on or before 28 March 2025. The applicant sought orders allowing him to attend the premises and to inspect, collect and remove chattels which he identified as his own. Orders of that kind were made by Slattery J on 9 April 2025:
- GRANTS liberty to Mr [Fahmid] Rahman to attend the premises [at Property 1A], for the purposes of inspecting, identifying, collecting and removing such property and chattels that remain there that he identifies as his own.
- ORDERS Mr Rahman to remove all property and chattels from [Property 1A] by no later than 29 April 2025.
- GRANTS liberty to Mr Rahman to provide a list of personal property and chattels which he claims were in his possession at the time of the Federal Circuit and Family Court of Australia Orders of 23 March 2023 which were not at [Property 1A] at the time of his inspection pursuant to ORDER 1.
- ORDERS that on and from 30 April 2025, the Trustees are at liberty to dispose of all remaining chattels and personal property left at [Property 1A] with any fees and disbursements incurred in doing so to be deducted from the sale proceeds.
- NOTES that the Trustees are going to seek an advice from an Agent as to the best method of selling [Property 1A] with a view to maximising the value of the property and will report to the Court and the parties on the next mention date as to their proposal for selling that property.
Slattery J’s ex tempore judgment given on 14 May 2025 (published to CaseLaw on 21 May 2025) dealt with additional issues which had impeded the work of the trustees for sale. In brief, the trustees by that date had been granted vacant possession of property 1A and were preparing it for sale. Property 1 was tenanted and was subject to a contract for sale. Completion of the sale of property 1 was due to take place on Friday, 16 May 2025. But when the matter came before the Court on 14 May 2025, it was unclear that the transaction would settle on 16 May.
On the applicant’s part, he sought orders to stay the sale, removal of the trustees, compelling the sale of property 1 to the daughter, staying these proceedings pending his further applications in the Federal Circuit and Family Court of Australia, and allowing him and his daughter to purchase both properties. The applicant also complained that the Supreme Court did not have jurisdiction to manage the sale of the properties: Rahman v Rahman (No 2) [2025] NSWSC 516 at [13]. Slattery J refused to make those orders.
On the trustees’ part, they filed a notice of motion which sought the removal of caveats which had been filed on the titles to property 1 and property 1A. Rodney John Kent and Peter Orlizki (practising as Kent Attorneys), who formerly acted for the applicant, had also lodged a caveat over both properties. Kent Attorneys lodged the caveats to charge those properties with an obligation to pay $30,000 to ensure enforcement of Kent Attorneys’ costs. Perpetual Corporate Trust Ltd, who had loaned funds to the first respondent, had also lodged a caveat over the title to property 1: ibid at [8]. Slattery J ordered that the caveats be withdrawn pursuant to s 74K of the Real Property Act 1900 (NSW), “so the settlement of these two properties can proceed smoothly” (at [16]). The Court was told that, after the payment out of any first mortgages, there would be ample equity in these properties to meet the Kent Attorneys’ caveat. Slattery J noted that, on the next occasion the matter was before the Court, his Honour proposed to make additional orders providing for the paying of $30,000 to Kent Attorneys, when received by the trustees on settlement of one of these properties. The trustees were thus directed to withhold a sum of money from the sale proceeds of property 1 (and, if necessary, property 1A).
As to the jurisdictional complaint made by the applicant, Slattery J said:
[15] The Court is not prepared to stay these proceedings, which are well within its jurisdiction and are not an exercise of jurisdiction under the Family Law Act 1975. These proceedings relate to this Court’s inherent jurisdiction to supervise trustees and its jurisdiction under the Real Property Act, 1900. This Court cannot and does not intend to vary any orders of the FCFCA in relation to this couple. This Court only intends within its jurisdiction to assist in the implementation of the existing orders of the FCFCA Family Court, the March 2023 orders, which do not require sale of the properties to any family member. The clear intent of the orders is to sell the two properties on market to obtain the best price reasonably available for the couple.
(1) ORDERS pursuant to section 74K of the Real Property Act 1900 that Rodney John Kent and Timothy Peter Orlizki withdraw caveat [not included in these reasons] (Kent Attorneys Caveat) from the title of property 1 and property 1A.
(2) ORDERS pursuant to section 74K of the Real Property Act 1900 that Perpetual Corporate Trust Limited (ACN 000 341 533) withdraw caveat [not included in these reasons] (Plenti Caveat) from the title of property 1.
(3) ORDERS, with respect to the Kent Attorneys Caveat, that the Trustees are to withhold the sum of $30,000 from the sale proceeds of property 1 (and if necessary property 1A) at settlement and maintain those funds in their trust account until further order of the Court.
(4) ORDERS, with respect to the Plenti Caveat, that the Trustees are to withhold the sum of $80,000 from the sale proceeds of property 1 at settlement and maintain those funds in their trust account pending further order of the Court.
(5) DIRECTS that if the sale of property 1, settles on Friday 16 May 2025:
(a) Ms Rahman shall file and serve written submissions by 21 May 2025 as to how the funds should be disbursed; and
(b) the defendant, Mr Rahman shall file and serve written submissions in reply by 28 May 2025.
(6) NOTES that if the contract for sale of property 1 does not settle on 16 May 2025 the Trustees for Sale are at liberty to issue a Notice to Complete to the purchaser, Wafa Rahman.
(7) NOTES that it is not necessary for Kent Attorneys or Plenti to file any further motions for the payment of funds out of the trust account of the trustees for sale.
(8) ADJOURNS the proceedings for further directions before Slattery J at 9:30am on 11 June 2025, when the Court will review the progress of the sale of each of property 1 and property 1A with a view to finalising these proceedings and the sale of the two properties in the near future.
On 27 May 2025, Mr Rahman filed a summons seeking leave to appeal, asking that orders made by Slattery J on 28 November 2024, 16 December 2024, 18 February 2025, 9 April 2025 and 14 May 2025 be “stay[ed]/set aside, to the extent they adversely affect the appellant and his children and a stay of the entire proceedings until the determination of this appeal or further order of the Court”: Rahman v Rahman [2025] NSWCA 126 at [15]. That motion came before Adamson JA, as a single Judge of Appeal, on referral from the Registrar’s list.
Adamson JA noted that as a single judge of the Court of Appeal, her Honour could not set aside substantive orders made by a primary judge since this requires the Court to be constituted, usually, by three judges: ss 43 and 46 of the Supreme Court Act 1970 (NSW). Her Honour’s powers on the motion were, in the circumstances, limited to granting a stay of orders made by Slattery J.
Her Honour noted that “there is an insuperable obstacle to the grant of a stay of that order. The trustees are not only proper parties to such an application; they are also necessary parties and they had not been joined to the proceedings in this Court. Thus, the application is not properly constituted and cannot be dealt with unless and until it is”: at [23].
On 2 June 2025, Adamson JA dismissed the applicant’s notice of motion and made the following orders:
(1) Dismiss the applicant’s notice of motion filed 27 May 2025.
(2) Order the applicant to pay the respondent’s costs of the notice of motion.
(3) Grant leave to the applicant to file by 10 June 2025 an amended summons joining the trustees as parties.
(4) Stand the matter over to the Registrar’s call-over for further directions on 11 June 2025.
- ORDER that, until 10am on 11 July 2025, Fahmid Rahman be restrained by himself, his servants, employees, agents, or contractors from:
a. trespassing or entering [property 1] or [property 1A] (properties);
b. entering within a 200-metre radius of the Properties; and
c. interfering with the removal of personal items or rubbish or other chattels by the registered proprietors of the Properties, being Andrew John Fleming and Stefano Calabretta, by themselves, or their servants, employees, agents or contractors.
- Costs.
These issues arose out of the orders made by the Court on 9 April 2025 concerning the clearance of property 1A to prepare it for sale. The Court’s orders of 9 April had not been able to be performed because the applicant had interfered with the clearance of and disposal of goods from the property.
The applicant submitted before Slattery J that the orders made on 9 April allowed for a clearance period up to 29 April after which, on 30 April, the trustees could dispose of the property. He said that the trustees had not complied with the Court’s order before 29 April and therefore there was now no express authorisation for the trustees to dispose of the goods pursuant to the Court’s orders.
The sale of property 1, however, had settled and payment had been made on behalf of the purchasers, the applicant and Ms Wafa Rahman, to the trustees who were holding the net proceeds of sale which the Court was told were $263,842.31.
The applicant submitted that the continuation of the Supreme Court proceedings was an abuse of process and involved multiplicity of actions, the duplication of evidence and the risk of inconsistent judgments.
In Rahman v Rahman (No 3) [2025] NSWSC 678, Slattery J found that the applicant would continue to take whatever action he saw as necessary to prevent the removal of property he regarded as his before the sale of property 1A. Slattery J was concerned that, should the trustees seek again to attend the property, even pursuant to a Court order, there may be a breach of the peace. Slattery J found that everything which the applicant had done since 10 May had been uncooperative in seeking to reach a clearance arrangement for property 1A. Since then, approximately double the time that was originally allowed to the applicant to clear the property by the 9 April orders, had expired. His Honour found that if the applicant truly valued those items of property, he would have cooperated with the trustees to allow the material to be removed. The applicant was simply being obstructive.
Slattery J held that an amended timetable should be fixed by the Court. To ensure there was no error in communication or misunderstanding between the parties, it was best that the applicant was able to nominate a date upon which he could collect the goods. The Court allowed the applicant sufficient time to approach the Court of Appeal for a stay of the orders. The orders made were:
(1) ORDERS the plaintiff (“Mr Rahman”) to remove by no later than Friday 4 July 2025 all goods and chattels from property 1A he claims.
(2) ORDERS that, if Mr Rahman has not removed his property from property 1A by 4 July 2025 in conformity with Order 1, then Andrew John Fleming and Stefano Calabretta, the trustees for sale (“the trustees”), are authorised by themselves and by their servants and agents to dispose on 5 and 6 July 2025 of all remaining goods and chattels left at property 1A to enable the clearance and sale of that property.
(3) ORDERS that, should the trustees dispose of all goods and chattels in accordance with Order 2, then the costs and fees of the disposal may be deducted from the sale proceeds of property 1A and any money received on the sale of such goods and chattels shall be credited to the sale proceeds.
(4) ORDERS the trustees to list property 1A for sale in accordance with the timetable discussed with any agent they engage as soon as practicable after Monday 7 July 2025.
(5) ORDERS that Mr Rahman must give 2 full business days clear notice to the trustees of his intention to remove any goods and chattels from property 1A, by written notice setting out clearly the date and time at which he proposes to enter the property and leave the property after completing the removal, noting that he may nominate any weekday or any Saturday for the removal.
(6) NOTES that, unless Mr Rahman notifies the trustees by Tuesday 1 July 2025 of his intention to remove goods and chattels from property 1A, on 4 July the trustees may operate on the basis that they will be disposing of the goods at property 1A on 5 and 6 July 2025.
(7) ORDERS that Mr Rahman by himself and Mr Rahman by his servants and agents is restrained from trespassing upon or entering property 1A.
(8) ORDERS that Mr Rahaman by himself and Mr Rahman by his servants and agents is restrained from interfering with, obstructing, or hindering the removal of any personal property, goods, rubbish or chattels from property 1A by the trustees themselves or by the trustees’ servants, employees, agents or contractors on 5 or 6 July 2025, or on any other day on which such removal is required to occur.
(9) ORDERS that these orders be entered forthwith.
(10) ORDERS that the costs of this application may be paid out of the sale proceeds of property 1A and NOTES that the question of which share of the proceeds of sale the costs will come from will be dealt with before the proceedings return to the Federal Circuit and Family Court of Australia.
(11) RESERVES costs.
(12) LISTS the matter on 11 July 2025 at 9:30 AM to consider any argument about costs (or directions thereafter) and ORDERS any party who wishes to be heard on costs to file submissions and any proposed further orders for the disposal of these proceedings by 9 July 2025.
The applicant did not take advantage of the opportunity given by Slattery J to remove his chattels and other items from property 1A: Rahman v Rahman [2025] NSWSC 752 at [7]. Pursuant to the 12 June 2025 orders made by his Honour, the trustees had made arrangements for various chattels and other items to be removed from the property on 12 July 2025 in anticipation of the property being marketed for sale.
On 4 June 2025, the applicant filed an amended summons seeking leave to appeal and a notice of motion to review Adamson JA’s decision purportedly under r 51.47 of the Uniform Civil Procedure Rules 2005 (NSW), rather than s 46(4) of the Supreme Court Act. This is one of the two additional motions before the Court referred to at [7] above. To the extent that the relief sought in that motion is intelligible, it relates to legal questions which are now moot. To the extent that the true complaint addressed by the motion is about costs, I will address that issue below.
On 10 July 2025, the applicant made an application to Slattery J in chambers for a stay of his Honour’s orders in relation to the sale of the property. Slattery J rejected that application.
On 11 July 2025, the day after, the applicant approached Kunc J, the duty judge at that time, and sought the following orders:
1 That the enforcement of Orders 1-8 made on 12 June 2025 be temporarily stayed, pending determination of the Plaintiff's motion for stay currently before the Court of Appeal (Case No: 2025/00202852);
2 In the alternative, that the enforcement of Orders 1-8 be temporarily restrained pending either the finalisation of the said appeal or the resolution of the parallel proceedings in the Federal Circuit and Family Court of Australia (Case No: SYC5687/2024);
3 That the trustees appointed under the Orders of 12 June 2025 be restrained from interfering with the belongings of Ms Wafa Rahman, which are not the subject of any claim by the Plaintiff, nor subject to the said Court orders;
4 Such further or other orders as this Honourable Court considers just.
In Rahman v Rahman [2025] NSWSC 752, Kunc J refused the relief sought, for three reasons. First, there had been no relevant change in circumstances since the applicant’s application for a stay which was determined just one day before. Kunc J considered that in itself was a sufficient reason to decline the present application. The proper course for the applicant was to seek leave to appeal from Slattery J’s decision and not to apply for the same relief to another puisne judge.
Further, Kunc J noted the familiarity which Slattery J had with the matter and his Honour’s hesitance to interfere either with the orders that his Honour had made, or his Honour’s order the day before declining the applicant’s application, without very good reason to do so.
Secondly, the applicant’s counsel had been given the opportunity to raise the question of the stay before the Registrar of the Court of Appeal two days before. That opportunity was disavowed. It would be inimical to the proper functioning of the Court if a party were able on one day to tell the Court that something was not urgent, and then the next day or the day after without any apparent new reason, approach another part of the Court to say that the same thing was now urgent.
Thirdly, the applicant provided no basis from which it could be concluded that he had any prospects of successfully appealing against Slattery J’s orders or, for that matter, successfully seeking a review of Adamson JA’s decision. The applicant had not filed any grounds of appeal in the Court of Appeal and he was unable to articulate before Kunc J any arguable error beyond what Kunc J inferred was general disagreement with the orders that have been made. His Honour noted that it was fundamental in any stay application pending appeal that the Court be given a clear understanding of what the grounds of appeal that are proposed to be relied upon are.
However, Kunc J varied Slattery J’s orders of 12 June 2025 to the extent, among other things, they provided that the trustees were empowered to arrange for a third-party storage facility for the storage of any chattels which either party directed to be placed in storage. Kunc J concluded:
[28] What I have sought to do by the orders which I will shortly pronounce is to balance the prospect (about the likelihood of which I have no view) that Mr Rahman may be able to persuade the Court of Appeal to grant him a stay or that he may have ultimate success in that Court, against the fact that until some other order is made, Slattery J’s orders should be allowed to continue to have effect because those orders have got the process moving for the sale of the property. Further delay is to be avoided.
[29] The property can be made vacant in accordance with the orders which I propose to make. Slattery J’s orders in relation to the sale of the property and the proceeds of sale should stand. There is still enough time, if Mr Rahman wishes to do so, to get his procedural house in order in the Court of Appeal and make such application as he may be advised before the Court of Appeal in relation to the further working out of the sale process which is the subject of Slattery J's orders.
The trustees reported to Slattery J in writing on 18 July 2025 concerning the execution of Kunc J’s orders and in relation to other matters to facilitate the progress of the sale of property 1A. Slattery J found that since 11 July, the trustees had cleared property 1A of the disputed goods and chattels and had since placed them in a storage facility and offered the key to that storage facility to the applicant to collect whichever of those goods he wanted. The applicant, however, refused to accept the key to the storage unit: Rahman v Rahman (No 4) [2025] NSWSC 801 at [6].
A dispute broke out between the parties about the first respondent’s attendance at property 1A on 13 July 2025. The details no longer matter. Slattery J noted that the orders he proposed to make would give the parties’ daughter an opportunity, should she choose, to collect any goods or chattels from the storage facility to which they had been relocated.
Additionally, the applicant made an oral application that, if the applicant were to purchase property 1A, he should be allowed to credit the proceeds of sale that he might expect from the sale of property 1A against his payment obligations as a purchaser. Slattery J rejected this application.
Slattery J found that the applicant’s final entitlements to the proceeds of sale of property 1 and property 1A could not then be reliably determined. Apart from the joint contingent liabilities that he and the first respondent may face, such as capital gains tax, his share of the net proceeds of the sale of the properties was at risk of being substantially diminished. The first respondent contended that the applicant was responsible in whole or in part for the considerable costs incurred by the trustees for sale. The applicant, on the other hand, submitted that the first respondent was responsible for those costs. Slattery J could not, at that stage of the proceedings, determine that dispute. Accordingly, noting the uncertainty of ascertaining what amount, if any, may be owing to the applicant at the conclusion of the sale, his Honour dismissed the applicant’s oral motion that he be permitted to be “credited” with an amount owing to him to use as part of the purchase price for property 1A.
The following orders were made:
(1) NOTES that the Trustees for Sale (“the Trustees”) tender their report in relation to the administration of their task as Trustees and dated 18 July 2025, which will be marked Exhibit A.
(2) ORDERS the Trustees to pay from the proceeds of sale of Property 1 (as previously defined)
(a) each of the liabilities referred to in paragraph 21 of Exhibit A, and
(b) the current balance of the St George Bank Vertigo Platinum Visa Credit Card ending in the numbers 2064, being a liability of $14,248.69, noting that the plaintiff, Mr Rahman has verified to the Court today that this is the total amount owing as at the present time.
(3) NOTES that Mr Rahman reads his Affidavits of 17 July 2025 and FURTHER NOTES his submissions dated 17 July 2025.
(4) NOTES Mr Rahman moves orally for an order restraining the Trustees from continuing to progress the sale of Property 1A (as previously defined) by public auction or private treaty.
(5) DISMISSES the plaintiff’s motion to restrain the Trustees from continuing the sale of Property 1A.
(6) NOTES that the plaintiff moves orally for an order that in the event he purchases Property 1A that he be credited with part of the purchase price [of] Property 1A in what he describes as “a gap order”.
(7) DISMISSES the plaintiff’s motion that he be credited with part of the purchase price [of] Property 1A NOTING the uncertainty of ascertaining what amount if any may be owing to the plaintiff.
(8) NOTES that one of the Trustees, Mr Fleming, is present in Court and he came forward at the invitation of the Court to provide a key to the storage unit containing goods removed from Property 1A as ordered by Kunc J on 11 July 2025 (“the storage unit key”) but the plaintiff declined to accept the storage unit key and handed it back to Mr Fleming.
(9) ORDERS the Trustee, Mr Fleming, to deposit the storage unit key at the Supreme Court Registry.
(10) GRANTS liberty to the plaintiff and/or Ms Wafa Rahman upon furnishing identification satisfactory to the Registry to collect the storage unit key by Friday, 1 August 2025 and thereafter use it to access the storage unit and to remove by no later than Friday, 15 August 2025, any goods which either of them claim, provided that they return the storage unit key to the Registry by Friday, 15 August 2025.
(11) DIRECTS Mr Fleming to email the Associate to Slattery J confirming that the storage unit keys have been deposited with the Supreme Court Registry.
(12) ORDERS that the Trustees are at liberty to bring to an end the storage of goods pursuant to Kunc J’s orders of 11 July 2025 at any time after Friday, 15 August 2025 and thereafter the Trustees may dispose of any goods remaining in the storage facility, as they see fit and DIRECTS that if, in the Trustees reasonable opinion, the goods may realise some value at auction or other sale, then the Trustees may offer them for sale and hold the sale proceeds for the benefit of the plaintiff and the defendant.
(13) ORDERS the Trustees to serve a copy of these orders on Ms Wafa Rahman and invite her to arrange with the Trustees to collect the goods in storage.
(14) RESERVES costs.
(15) GRANTS liberty to apply to Kunc J.
(16) ADJOURNS the proceedings to 9.30am on 24 October 2025 before Slattery J.
On 15 August 2025, the applicant e-filed a further notice of motion. This is the second notice of motion referred to at [5] above. The relief sought is overlapping with the relief sought in the second further amended summons seeking leave to appeal. I will address the substance of the motion, leaving aside any formal defects, after addressing the relevant questions of leave to appeal.
In Rahman v Rahman (No 2) [2025] NSWCA 194, Price AJA dealt with a notice of motion filed by the applicant, dated 18 August 2025, which sought expedition of the 15 August 2025 notice of motion. In the 18 August motion, the applicant sought:
- That the [applicant’s] Notice of Motion filed on 15 August 2025 be listed for urgent hearing prior to 23 August 2025.
- Alternatively, that interim protective orders be made forthwith, namely:
a. The trustees be restrained from taking any steps to market, auction, or otherwise dispose of … [Property 1A in Roselands], pending determination of the appeal or further order.
b. Such further or other orders as the Court deems appropriate in the interests of justice.”
The complaints raised by the applicant in the 15 August 2025 notice of motion are overlapping with the claims in the second further amended summons and the notice of motion filed on 4 June 2025: see Rahman v Rahman (No 2) [2025] NSWCA 194 at [4].
At the outset, Price AJA explained that, sitting as a single judge of this Court, his Honour could not set aside any of the substantive orders made by Slattery J and neither could his Honour grant the relief sought in Order 2 of the expedition motion which the applicant characterised as “interim protective orders”, since that would impermissibly require his Honour to discharge or vary the orders made by Adamson JA in Rahman v Rahman [2025] NSWCA 126.
Price AJA noted that, before Adamson JA, the applicant opposed the sale of property 1A occurring and he sought to stop its sale by seeking the stay. In the applicant’s affidavit dated 18 August 2025, he stated he became aware on 18 July 2025 that property 1A was listed for auction on 23 August 2025. He further stated that the real estate agent was open to selling the property prior to the auction if someone is willing to pay $1.7 million for it. The basis for expedition was said to be that if the auction on 23 August 2025 was allowed to proceed and property 1A was sold, the applicant would be deprived of the opportunity to purchase the property and suffer an irreversible prejudice. The applicant further submitted that if expedition was not granted, the sale of the property would render the motions (of 4 June and 15 August 2025) and his appeal (in truth the second further amend summons seeking leave to appeal) nugatory.
In oral submissions, the parties confirmed that property 1A had not been sold and that the auction was scheduled to be held on 23 August 2025.
Price AJA noted that the applicant had enjoyed multiple opportunities to seek expedition and failed to do so. Over 2 months had elapsed since Adamson JA’s judgment in Rahman v Rahman [2025] NSWCA 126 was published on 5 June 2025 and more than one month had elapsed since the applicant became aware that Property 1A was listed for auction on 23 August 2025. Despite being aware of the impending sale of the property, the applicant delayed making his application for expedition until 18 August 2025.
His Honour concluded that, despite the importance of the sale of property 1A to the applicant, when considered in combination with his significant delay having waited until the “eleventh hour” to bring this application and the interests of the first respondent, Price AJA was not satisfied the applicant had demonstrated that the circumstances required the Court to grant expedition.
In the present proceeding, the applicant did not seek to challenge the substantive orders made by Price AJA but disputed his Honour’s orders about costs.
- ORDER that the plaintiff/applicant be denied leave to make an application to the Court in terms of MFI P1.
- ORDER that the plaintiff/applicant pay the costs of the first defendant/respondent and the second and third respondents (trustees), of and incidental to the application before the Court today, on the indemnity basis.
- ORDER that these orders be entered forthwith.
As I have mentioned above, on 4 June 2025, the applicant and his daughter settled on the purchase of property 1. As part of the settlement, by agreement, the trustees gave the applicant a credit of around $190k on the purchase to reflect his future entitlement to the proceeds of sale.
On 18 July 2025, following an auction, the applicant and his daughter exchanged contracts to buy property 1A for $1.7 million. The sale of property 1A is due to settle on 6 October 2025. As is clear from my factual findings recited above, the applicant has known at all times, including well prior to the exchange of contracts, that the trustees for sale disputed that the applicant was or was likely to be entitled to any amount representing the proceeds of the sale of the properties which he could use to set off against the purchase price for property 1A. Certainly, the trustees had made clear that they did not agree that the applicant was entitled to set off any alleged entitlement as part payment of the purchase price.
On or about 29 August 2025, the trustees were served with:
a Garnishee Order in favour of Rodney Kent and Tim Orlizki (trading as Kent Attorneys) for the amount of $24,421.50; and
a Garnishee Order in favour of Rodney Kent and Tim Orlizki (trading as Kent Attorneys) for the amount of $2,513.00.
As at 29 August 2025, the trustees were not certain that the applicant would be entitled to receive any further proceeds from the sale of the properties due to:
the $190k credit already applied to Mr Rahman’s purchase of property 1;
funds paid to Kent Attorneys on behalf of Mr Rahman;
potential CGT liabilities; and
the existence of known or potential creditors who may garnish the proceeds of sale.
1. Leave to appeal from the part of the decision below in relation to part orders of the Supreme Court of New South Wales, Equity Division, made on 28 November 2024, 16 December 2024, 18 February 2025, 9 April 2025, and 14 May 2025 be set aside, to the extent they adversely affect the appellant and his children.
2. That the matter be remitted for rehearing before a different judge who can consider the issues fairly and impartially.
3. That the appeal be allowed.
4. That any orders allowing the respondent’s boyfriend, Haydn Gilmore, to represent her be revoked, limiting his role to that of a support person only.
5. That an urgent stay be granted to prevent any further disposal or removal of personal property belonging to me or my children, and that any disposal already made be investigated and reported to the Court.
6. That an order be made for the removal of the current trustees, Mr Andrew Fleming and Mr Stefano Calabretta, on the grounds of breach of duty, procedural non-compliance, and their failure to act in alignment with family law objectives.
7. Alternatively: That I, Fahmid Rahman, be appointed as trustee for a period of two (2) months to complete the sale of 1 and 1A Stephenson Street, Roselands, subject to any conditions the Court considers appropriate, in order to save costs and expedite the sale.
- That the respondent and the trustees pay the appellant’s costs of the appeal and the proceedings below.
9. That the Court make an order permitting the appellant and his daughter, Wafa Rahman, to lawfully purchase both matrimonial properties at the current court ordered valuation.
- In the alternative, that these proceedings be concluded on the basis that the same matters are currently before the Federal Circuit and Family Court of Australia (Division 1), which has exclusive jurisdiction over the matrimonial property dispute—including the sale and distribution of the subject properties—and which is actively seized of those issues.
11. That the respondent pay the appellant’s costs on an indemnity basis.
…
(Footnotes omitted)
On 4 June 2025, the applicant filed an amended summons seeking leave to appeal joining the second and third respondents to the proceedings. The same orders were sought.
On 2 September 2025, the applicant filed a Notice of Motion and an accompanying affidavit seeking leave to rely on a document styled as a “Second Further Amended Summons”. As I have said at [6] above, on 10 September 2025, at the hearing of the application for leave to appeal, leave was granted to file the second further amended summons in court. In that document, the following orders were sought:
Extension of Time (if required):
- Insofar as necessary, that time for filing the appeal be extended.
Leave to Appeal:
- That leave to appeal be granted.
Disposition of Appeal:
- If leave is granted, that the appeal be allowed.
Caveat Relief:
- That the operation of Caveat AU416734 (“Caveat”) be extended until completion of settlement and registration of the Applicant as proprietor, or until further order of the Court, so as to protect the Applicant’s equitable interests pending resolution of costs and accounting issues; or, in the alternative,
- That the Applicant have liberty to lodge a further caveat in the same terms.
Setting Aside / Variation of Orders:
- That the following orders be set aside, or varied, on the grounds of jurisdictional error, procedural unfairness, or manifest injustice:
a. Orders of 16 December 2024, appointing the Second and Third Respondents as trustees for sale and refusing to extend the Caveat;
b. Orders of 18 February 2025, granting possession to the trustees and removing the Applicant’s caveats;
c. Orders of 9 April 2025, directing disposal of the Applicant’s chattels absent collection by a fixed date; and
d. Orders made at subsequent motions hearings on 2 June, 11 July, 18 July, 21 August, and 22 August 2025, including:
i. the restriction preventing the Applicant from applying his notional entitlement towards the purchase of 1A Stephenson Street; and
ii. the variation authorising the trustees to dispose of any remaining chattels after 15 August 2025.
Substituted Relief (in light of completed sales):
- In lieu of the above:
a. That any orders for sale be declared spent and of no continuing effect;
b. That the Supreme Court proceedings be stayed, or alternatively transferred to the Federal Circuit and Family Court of Australia pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987;
c. That the trustees’ role be confined to accounting only, with a direction that their remuneration and expenses not be borne from the matrimonial asset pool but instead personally by the First Respondent;
d. That orders be made for preservation and accounting of chattels, including that any proceeds from disposed items be held to the credit of the parties, and that any unauthorised disposal be subject to restorative directions.
Costs:
- That the costs of this application for leave be costs in the appeal.
- That the Applicant have liberty to seek orders that the trustees’ costs be borne personally by the First Respondent.
10. That the First Respondent be ordered to bear the costs of the Supreme Court proceedings, these motions, and this appeal, arising from her persistent non-compliance with FCFCOA orders, which triggered the appointment of commercial trustees, generated unnecessary expense, and materially contributed to the current proceedings before both the Supreme Court and the Court of Appeal.
Additional Orders Inserted by Second Further Amendment (Mark-up)
- (omitted in earlier version) Leave to appeal from the decision below in relation to which the learned Justice Slattery on 16 December 2025:
(i) declined to extend Caveat AU416734 (“Caveat”); and
(ii) ordered that the Second and Third Respondents be appointed as trustees for sale of the properties the subject of the Caveat being the properties at 1 Stephenson Street Roselands (Lot 1, Deposited Plan 872522) and 1A Stephenson Street Roselands (Lot 3, Deposited Plan 878487).
- (previously costs in appeal only) That costs of this application be costs in the appeal.
The applicant’s complaints in the second further amended summons may be summarised as falling into six groups:
Complaints about the exercise of jurisdiction by the primary judge, including a failure to cross-vest the proceedings to the Federal Circuit and Family Court of Australia;
Complaints about the appointment of the independent trustees for sale;
Complaints about the decision to remove the applicant’s caveat AU416734 with respect to property 1;
Complaints about orders permitting the trustees to remove the applicant’s chattels from property 1A;
Complaints about orders preventing the applicant from “applying his notional entitlement” towards the purchase of property 1A – what the applicant has called a refusal to make a “gap order”; and
Complaints about how the costs of the trustees for sale should be paid.
To this may be added complaints made clear in oral address about the costs orders made by Slattery J, Kunc J, Lindsay J, Adamson JA and Price AJA.
The draft notice of appeal ranges over similar but not identical grounds:
Proposed ground 1 complains about a failure to extend caveat AU416734.
Proposed ground 2 complains about Slattery J failing to have regard or sufficient regard to extant proceedings in the Federal Circuit and Family Court of Australia. It may be that this draft ground raises a jurisdictional complaint.
Proposed ground 3 complains about the refusal to appoint the applicant as the trustee for the sale and the appointment of the second and third respondents as the trustees for sale.
Proposed ground 4 complains about the alleged failure of Slattery J to have regard or sufficient regard to the costs in appointing the second and third respondents as the trustees for sale rather than the applicant.
Proposed ground 5 complains that Slattery J erred in appointing trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW).
Proposed ground 6 complains about inefficiency, unfairness and an abuse of process conducting “parallel proceedings” in the Supreme Court and the Federal Circuit and Family Court of Australia.
Proposed ground 7 complains about the lack of jurisdiction in this Court to “alter property interests and appoint trustees” in “matrimonial matters”.
Proposed ground 8 complains about an alleged denial of procedural fairness.
Proposed ground 9 complains that the appointment of independent trustees for sale “conflicted with the Family Court’s jurisdiction and authority”.
At the hearing, the applicant tendered without objection two email communications between himself and the trustees, consisting of:
a copy of an email from Andrew Hack to Fahmid Rahman dated 10 January 2025; and
a copy of an email from Fahmid Rahman to Andrew J Fleming dated 17 August 2025.
Those email communications were marked Exhibit 1.
Mr Brown, appearing for the first respondent, tendered without objection an affidavit of Jade Ellis affirmed on 27 August 2025, and an exhibit to that affidavit. Those documents were in the supplementary white folder before this Court.
Mr O’Brien, appearing for the second and third respondents, tendered without objection an affidavit of Andrew John Fleming affirmed on 5 September 2025; a second affidavit of Andrew John Fleming affirmed on 9 September 2025. Those documents were in the supplementary white folder before this Court. Mr O’Brien also tendered without objection an exhibit to the affidavit of Andrew John Fleming affirmed 5 September 2025 marked AJF-1.
It is to be noted that the following matters, in particular, emerged from that evidence:
On 11 August 2025, Kemp J in the Federal Circuit and Family Court of Australia dismissed an application by the applicant for an order that he be permitted to purchase property 1A (seemingly on the basis of an allegedly “binding valuation”) and for the auction on 23 August 2025 to be stayed. It is clear that, in making those orders, Kemp J was fully apprised of the fact that Slattery J had appointed independent trustees for sale who were conducting the auction. Order 9 made by Kemp J on 11 August 2025 expressly referred to the trustees. Order 10 made by Kemp J on 11 August 2025 also expressly referred to the continuing proceedings in the NSW Supreme Court.
As earlier noted, settlement of property 1A is due to occur on 6 October 2025.
The matter is listed before Slattery J on 24 October 2025 at which time it is envisaged his Honour will address the question of who should pay the trustees’ costs. Any complaint by the applicant about the trustees’ costs is thus premature. No order has been made. His Honour has indicated that he will remit the question of any final distribution by the trustees to the applicant and the first respondent to the Federal Circuit and Family Court of Australia.
A number of written submissions were provided by the parties during the course of these proceedings between May and September 2025. The applicant raised a number of issues in his written submissions or summaries of argument, dated 30 May 2025, 10 June 2025, 18 June 2025, 10 August 2025, and 8 September 2025. I have taken all of these submissions into account.
The applicant submitted that leave to appeal should be allowed because:
The appeal concerns multiple serious errors of law and fact, procedural unfairness, and misapplication of judicial discretion, which collectively caused significant prejudice to the Applicant and his children, including unlawful deprivation of personal property, unjustified costs, and enduring emotional distress.
…
The Applicant submits that the threshold for leave is clearly satisfied. The appeal raises significant issues of principle and jurisdictional importance, warranting this Honourable Court’s intervention.
As to the complaints about the order that the caveat be withdrawn and the refusal to stay the settlement of property 1A, the applicant confirmed in oral submissions that whilst he still sought to set aside the orders about the withdrawal of the applicant’s caveat, he principally sought an order that the settlement of property 1A be stayed.
It will be recalled that on 18 February 2025, Slattery J ordered that the applicant withdraw his caveat over property 1 and property 1A such that the trustees could sell the properties: see Rahman v Rahman (No 2) [2025] NSWSC 516 at [5]. The reasoning upon which the applicant sought to set aside the caveat orders was not readily apparent. The applicant merely asserted that Slattery J’s approach to the issues was incorrect. For example, he said this during oral submissions:
Kunc J understand this matter. He is halfway in my favour and he said we can give - they store all your belongings into the storage instead. I said there is no reason, no utility to remove and in regard - I intend to purchase the property is, and the first property was sold with belonging, with tenant, so what is the problem? That's what I told Slattery J too, but Slattery J change the justice - Kunc J change the Slattery J decision and say it should be put in the storage. I say in that case I would not pay any cost. The reason is to the decision before Supreme Court for respondent inaction not to sell the property, to please Family Court order. If she sold on time I shouldn't have come to this decision, not even caveat.
Then Kunc J say okay we'll reserve who will bear the cost later. Fine. Then the trustee remove everything into the storage. One week later the matter before Slattery J again. Slattery J was not happy and he varied Kunc J decision again and say how much you pay for storage for one month? He say I want the one month finish, is a certain date, 15 September, okay. If 15 September if I will not take it, dispose that one. That is unjustice continue since Slattery J went beyond the caveat issue. I went for caveat issue extension. That is his job. Other, other than everything is belong to current live proceeding before the Family Court.
…
APPLICANT: No, no, I am testing you probably eight month before Slattery J the matter is before Family Court, active case. I requested the matter should go back to Family - not go back, it is there, it should not go beyond the caveat. That is--
…
APPLICANT: Everything is, everything is over. The reason is my object for the motion is now over because property already sold.
PAYNE JA: Yes.
APPLICANT: So you cannot reverse it. So I have no looking - nothing looking to set aside any decision because it's over.
The respondents submitted that the caveats no longer have any utility, because property 1 now belongs to the applicant as a registered proprietor tenant in common with his daughter. To the extent that the caveat was also over property 1A, in circumstances where the applicant has entered into a contract for the sale of the property, the applicant has rights as a purchaser under the contract for sale.
As to the applicant’s alternative argument seeking a stay of the settlement, it was said to be for the purpose of determining the applicant’s equity in property 1A. The applicant said in oral submissions he would “like to see the breakdown certainty and then settlement”. The applicant’s submission thus appeared to be contingent on the applicant’s third complaint about the “gap order”.
Mr O’Brien, appearing for the second and third respondents, submitted, correctly, that this alternate argument about the stay of the settlement of the sale was not an order sought below. There being no order being appealed from, nothing further was said.
As to the so called “gap order” itself, which was made by oral application by the applicant before Slattery J on 18 July 2025, the applicant complained that Slattery J’s rejection of that application was, among other things, unjust and caused “irreversible harm”:
APPLICANT: My question is the gap order, the same, before the Slattery J the gap order is my equity to use. I use in one instance 190K. Same principle would apply for other too, for rest of equity too but, if not, the gap order, if not I can use my notion in that case. It is interrelated. He stay the matter so gap order is uncertainty. Uncertainty should be resolved. This is together. It’s interrelated. Slattery J clearly say on 29 November he will hear this matter next year or later. No party will feel prejudice. If that is the case ..(not transcribable).. Slattery J errored and contradicted her(as said) own judgment and put before he settled that matter he put the house for auction. There’s a inconsistence.
So, he should do the gap order first before he put, force auction. I asked not to put force auction, he did. In fact, Slattery J is preventing me to purchase that house by doing that one that. The question(?) is here, I can borrow, maximise money from my bank but to gap that’s the half million dollar roughly, four hundred, five hundred. It’s not personally I can borrow from my friend or relative. It’s impossible for me and if I not do that one then I will lose my house. His children will then be gone, children, his both children gone and ..(not transcribable).. from that house. All their memory will be gone, irreversible harm, plus deposit we pay it will be gone too. It should be fair to me to use my equity. If, if any young children then the breakdown shouldn’t ..(not transcribable).. Before it’s go for auction then it should not come to this argument to your Honour now and it is irreversible harm, it’s balance of convenience to this Court is.
Then the first respondent - no, sorry ..(not transcribable).. the parallel ..(not transcribable).. is dismissed. It’s ..(not transcribable).. both. It dismissed partly, not fully.
The apparent purpose of the “gap order” was to allow the applicant to use his alleged future entitlement to net proceeds of sale towards the purchase price of property 1A. In this regard it is to be noted that the trustees had already allowed the applicant to use his future entitlement to net proceeds of around $190,000 towards the purchase of property 1.
The respondents noted that due to payments already made by or on behalf of the applicant and the uncertain incidence of costs, the trustees could not reliably estimate the amount, if anything, which would ultimately be available to the applicant notionally to “use” for the purchase of property 1A. That uncertainty was the reason that the “gap order” application was rejected by Slattery J.
As to jurisdiction, the applicant’s complaint was that, to avoid injustice, the matter should be dealt with by the Federal Circuit and Family Court of Australia. In the applicant’s written submissions dated 8 September 2025, he suggested that Slattery J’s appointment of independent trustees “created serious jurisdictional tension with federal family law”. That complaint extended to Slattery J’s compelling of the sale of the properties.
It was also submitted that “the cross-vesting principle necessitate[s] the transfer of proceedings to prevent parallel duplicative proceedings and inconsistent remedies”. Alongside this principle were the “procedural and substantive fairness principles” which was said to have been compromised by Slattery J. Slattery J’s orders were said to amount to “clear manipulation” of the Court’s jurisdiction.
The respondents submitted that, properly construed, the matters determined by the primary judge did not arise under the Family Law Act 1975 (Cth). A matter “‘arises under’ a law if the right or duty in question in the matter owes its existence to that law or depends upon that law for its enforcement”. The characterisation of the controversy is an objective assessment. If the law is relied upon “as the source of a claim or defence that is asserted in the course of the controversy” the matter will arise under that law.
Here, the controversy did not arise under the Family Law Act. No claim or defence was raised under that Act. Rather, the primary judge dealt with: (i) the removal of a caveat under the Real Property Act; and (ii) the resignation of the first respondent as trustee and the appointment of new trustees pursuant to s 70 of the Trustee Act 1925 (NSW) or the Supreme Court’s inherent jurisdiction to “to supervise and if necessary to intervene in the administration of trusts”; and (iii) possession of property.
Secondly, even if the matter arose under the Family Law Act, the primary judge had jurisdiction. Section 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) vests jurisdiction in the Supreme Court to determine matters under the . However, if the primary judge was exercising such jurisdiction, no appeal lies to this Court. Instead, any appeal would lie to the Federal Circuit and Family Court of Australia (Division 1). In that event, the Court would dismiss the proceedings with costs.
The applicant requires leave to appeal on each ground. As to the orders in relation to the caveats, the applicant requires leave to appeal under s 101(2)(m) of the Supreme Court Act as it relates to a judgment or order of the Court on an application under s 74K of the Real Property Act. As to the orders in relation to the refusal of a “gap order” as well as the Court’s jurisdiction to make those orders the subject of the complaints, leave is required under s 101(2)(e) of the Supreme Court Act as they are an interlocutory judgment or order. As to the costs orders made by Adamson JA, Kunc J, Price AJA and Lindsay, J, leave is required under s 101(2)(c).
A grant of leave to appeal requires there to be an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, eg, McEvoy v Wagglens Pty Ltd [2021] NSWCA 104 at [35]. As the Court observed in McEvoy, referring to PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions, such as those involving matters of practice or procedure, attract the added restraint of the requirements of House v The King (1936) 55 CLR 499.
I will first address the question of jurisdiction. There is a considerable irony in the case advanced by the applicant. It was the applicant who first approached the Supreme Court seeking orders related to various issues concerning the sale of property 1 and property 1A. The applicant, in the present case, is seeking leave to appeal against a range of orders and the making of replacement orders which, on the jurisdictional hypothesis he now advances, were outside the jurisdiction of the Supreme Court. A further irony, if the applicant is correct that Slattery J determined a matter arising under the Family Law Act, is that the clear terms of s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act and authority in this Court (eg Young v Lalic [2006] NSWSC 18 at [49] per Brereton J) provide that Slattery J had jurisdiction to make the orders he did but the appeal to this Court (rather than the Federal Circuit and Family Court of Australia (Division 1)) would be incompetent, and the application for leave to appeal would need to be dismissed on that basis.
I have concluded, however, that Slattery J did not exercise jurisdiction arising under the Family Law Act. As to whether a matter may properly be said to arise under the Family Law Act, Emmett AJA (with whom Sackville AJA and I agreed) said in Chaudhary v Chaudhary [2017] NSWCA 222 that:
[29] A matter may properly be said to arise under the Family Law Act if a right or duty in question in the matter owes its existence to the Family Law Act or depends upon the Family Law Act for its enforcement, whether or not the determination of the dispute involves the interpretation or validity of the Family Law Act. [R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; [1945] HCA 50; CGU Insurance Ltd v Blakeley [2016] HCA 2 at [28]; 90 ALJR 272.] A matter will arise under the Family Law Act if a party on either side of the record relies upon a right, immunity or defence derived from the Family Law Act or if the right or duty in question owes its existence to the Family Law Act or depends upon the Family Law Act for its enforcement.[Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86 at [16]. (Footnotes supplied)
Slattery J was correct to conclude that the orders he made were not an exercise of jurisdiction under the Family Law Act. His Honour made orders in the Supreme Court’s inherent jurisdiction and under the Trustee Act to appoint new trustees to a trust where the existing trustee had resigned. His Honour also made orders under the Real Property Act relating to the removal of a caveat. No order made by his Honour relied on a right or duty owing its existence to the Family Law Act or depending upon the Family Law Act for its enforcement.
Slattery J did not vary any orders of the Federal Circuit and Family Court of Australia. The March 2023 orders of the Federal Circuit and Family Court of Australia clearly provided for the sale of the two properties on market to obtain the best price reasonably available for the applicant and the first respondent. The orders made by Slattery J provided for steps to be taken which were entirely consistent with the orders made by the Federal Circuit and Family Court of Australia.
No issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable has been shown. Leave to appeal on jurisdictional grounds should be refused.
Leave must also be refused in relation to the related complaint that Slattery J should have made orders under the Jurisdiction of Courts (Cross-Vesting) Act cross-vesting this matter to the Federal Circuit and Family Court of Australia. This was a discretionary decision. The jurisdiction of the Supreme Court was invoked by the applicant. Slattery J was plainly correct to say in the (No 3) judgment that:
[66] The problem appears to be for Mr Rahman that he has become concerned about the Court exercising a jurisdiction which he asked it to exercise and he, for his own reasons, appears to have decided that he no longer wants this Court to deal with the matter. But that smacks to a degree of forum shopping.
Beyond mere assertion, the applicant did not make good his claim that the proceedings before Slattery J were “parallel duplicative proceedings” or that “inconsistent remedies” were sought in the Supreme Court proceedings compared to the Federal Circuit and Family Court of Australia proceedings. I reject the applicant’s submission that any basis was shown to conclude that “procedural and substantive fairness principles” were compromised by Slattery J. No arguable error has been shown in his Honour’s refusal to make orders under the Jurisdiction of Courts (Cross-Vesting) Act cross-vesting this matter to the Federal Circuit and Family Court of Australia. Leave to appeal on grounds relating to the cross-vesting of proceedings should be refused.
Slattery J’s orders were each made within the Court’s jurisdiction (as were the orders of Adamson JA, Kunc J, Price AJA and Lindsay J). The present appeal is also within this Court’s jurisdiction.
To the extent it was pressed as a submission, I reject the applicant’s submission that there was any error shown in the decision to appoint independent trustees for sale rather than the applicant himself. The applicant was singularly unsuitable for the role of trustee for sale of these properties. No error has been shown in the decision of the primary judge, in the face of the resignation as trustee for sale of the first respondent, to appoint independent trustees for sale. In particular, I reject the purported comparison between the costs of the independent trustees with those which the applicant asserted would have been incurred had the applicant been appointed as trustee. This is a false comparison. Slattery J refused to appoint the applicant as trustee for the following reasons (Rahman v Rahman [2024] NSWSC 1616):
[22] But who is to replace the wife? The Court must first consider the husband's application to replace the wife and to sell property 1A within two months. The Court has experience of dealing with the appointment and execution of trusts for sale of residential properties like these two, where conflict exists in the background between the parties who are also the beneficiaries of the trust for sale.
[23] In the Court's view, although the husband's offer to act and that he will be able to execute the trust completely within two months, appears to be sincerely meant, for several reasons the Court is not prepared to accede to that offer.
[24] First, there is an AVO out against the husband requiring the husband to stay away from the wife. This makes normal communication between the trustee for sale and the beneficiary fraught with the risk of escalating hostility and unnecessarily difficult at a practical level. Smooth communication between trustee for sale and beneficiaries is essential to the efficient execution of a trust for sale.
[25] Secondly, the wife has as little trust in the husband's capacity to execute the trust as the husband now has in the wife. One important ingredient of effective trusteeship is that the beneficiary has confidence in the trustee. If the husband is appointed as the trustee, the wife will begin the trust relationship with little confidence in his execution of the trust. This will be with good grounds, as the husband has waged a campaign of caveat lodgement and correspondence with the wife for extension of the caveat. New conflicts are likely to arise. The trust for sale is likely to be paralysed in new ways.
[26] Thirdly, the Court has had an opportunity over the three occasions this matter has been before the Court to make observations about the husband’s personality, attitude to the wife, and his insight in relation to the challenges of the trust for sale. The sale of these two properties is likely to lead to further conflict in relation to the sale of land. The husband is not equipped with legal experience which would allow a professional trustee to make quick and sound judgments to give instructions in relation to managing such conflict whilst at the same time efficiently executing the trust for sale.
[27] Fourthly, the husband has unrealistic views about what he can achieve as trustee. He believes he can sell property 1A within two months. This is improbable, particularly at this time of the year and in the context of the broader disputes. It will take some time to work through the contract dispute after the failed auction of property 1A. And the wife’s unwillingness to vacate property 1 quickly is uncertain. The past delay of the wife and the conflict between this couple causes the Court to be very cautious about accepting any such assurance from the husband.
No error was shown in his Honour’s conclusions.
Finally, the applicant’s submission that the independent trustees were appointed under s 66G of the Conveyancing Act is simply incorrect.
No error has been shown in relation to any of these matters. Slattery J was plainly correct not to appoint the applicant as trustee for sale and to appoint independent trustees for sale. Leave to appeal on these grounds should be refused.
By order of Slattery J made on 18 February 2025, a caveat lodged by the applicant with respect to property 1 and property 1A was ordered to be removed. His Honour was plainly correct to so order. The applicant has not demonstrated that he had a caveatable interest at any relevant time.
The appropriate starting point is the Real Property Act. Section 74F permits a person claiming to be entitled to an unregistered legal or equitable interest in land to lodge a caveat prohibiting the recording of any dealing affecting the claimed interest. The orthodox view is that stated by Barwick CJ in J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552. His Honour said that the purpose of a caveat:
… is to act as an injunction to the Registrar-General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration. The purpose of the caveat is not to give notice to the world or to persons who may consider dealing with the registered proprietor of the caveator's estate or interest though if noted on the certificate of title, it may operate to give such notice. If the caveator does not take proceedings in due time against the person who has lodged a dealing for registration, and the dealing is registered, awareness of the existence of the caveat, and through it, that an estate or interest is claimed by the caveator, will be irrelevant except possibly as an element in establishing fraud in the procurement of the registration. But of itself such awareness will not vitiate the registration.
Any person who lodges a caveat without reasonable cause, or who refuses to withdraw a caveat after being requested to do so, is liable to pay compensation to any person who sustains pecuniary loss attributable to the first person’s actions or failure to act: ss 74P(1)(a), (c) of the Real Property Act.
In the present case, Slattery J did not err in ordering the caveat to be removed. The applicant has not demonstrated that he had a legal or equitable interest in either property at any relevant time. The applicant had a mere right to receive his percentage, as identified by orders of the Federal Circuit and Family Court of Australia, of the net proceeds of sale of the properties. That was made clear in the orders of 24 March 2023, pursuant to which the Federal Circuit and Family Court of Australia gave effect to a final property settlement between the applicant and the first respondent. Those orders provided that the properties were to be sold and net proceeds of sale distributed. Title to the properties was vested in a trustee for sale.
The applicant, together with his daughter, now has a legal interest as a registered proprietor of property 1. The applicant, together with his daughter, has contracted to purchase property 1A. There is no remaining utility in the caveat Slattery J ordered to be removed.
To the extent that the applicant sought leave to appeal to address the issue of costs of the caveat removal application, that leave should be refused. No issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable has been shown.
Leave to appeal on these grounds should be refused.
On 18 July 2025, the primary judge refused the applicant’s self-described “gap order”. As I have earlier noted, the proposed “gap order” was apparently designed to allow the applicant to use his alleged future entitlement to the net proceeds of sale towards the purchase price of property 1A. The trustees had allowed Mr Rahman to use his future entitlement to net proceeds in the sum of around $190k towards the purchase of property 1. The insurmountable problem for the applicant on these grounds is that he could not demonstrate any entitlement, beyond mere assertion, to a distribution which he could apply towards the purchase of property 1A.
Slattery J was correct to find that there was insurmountable difficulty with the applicant’s proposal to determine his final entitlements to the proceeds of sale of property 1 and property 1A before the sale of property 1A had been settled. It is clear that the applicant and the first respondent were in dispute about the applicant’s ultimate entitlements. Apart from the unknown joint contingent liabilities that both parties may face, such as capital gains tax, the applicant’s share of the net proceeds is at risk of being substantially diminished by costs orders being made against him, including by the making of costs orders against him in favour of the trustees for sale. Those costs orders have not been determined and it would be inappropriate to do so until the sales for which the trustees were appointed are completed. The first respondent has foreshadowed her claim that the applicant should be wholly responsible for the trustees’ costs rather than merely bearing his proportion of those costs. This question could not properly be determined before the settlement of both properties. The primary judge was correct to conclude that, in order to work out what remaining notional entitlement the applicant has, if any, it was necessary first to determine with certainty what the proceeds of sale are. One can only properly determine what the proceeds of sale are when the settlement is actually completed.
Slattery J corrected observed that these disputes about the entitlements of the applicant should and will be determined at a future hearing. In Rahman v Rahman (No 4) [2025] NSWSC 801, Slattery J noted:
[24] The Court is not presently deciding this contest. But determining whether Mr Rahman will have any net proceeds to credit against his purchase of Property 1A is clouded by multiple costs contingencies and is so uncertain that no reliable prediction can presently be made about the quantum of those net proceeds. And it is not consistent with the reasonably efficient conduct of these proceedings in accordance with the objectives of Civil Procedure Act 2005 Chapter 6 for the Court to embark upon the exercise of trying to work out that quantum.
…
[34] The parties are still at issue about who is responsible for the appointment of the Trustees and who should bear the costs of the Trustees’ appointment. Ms Mita Rahman advanced written submissions as to costs. Mr Rahman has previously advanced submissions to the effect that the Trustees their appointment should only be made at the cost of Ms Mita Rahman. These costs issues can only be resolved after Property 1A is sold and the proceeds paid into Court. The immediate priority is the sale of this second property, Property 1A, which will then allow the Trustees for sale to be discharged, and further sale costs avoided. For the present costs should be reserved.
No error has been shown in this approach. Slattery J rightly found that the applicant’s future entitlement to net proceeds, given costs and other matters, could not reliably be determined, such that a “gap order” should not be made. His Honour’s decision was a discretionary one and no House v The King error is even arguably shown.
As to the applicant’s belated application for a stay of the settlement of property 1A, no basis has been shown for the making of such an order. The applicant has contracted to purchase property 1A. No basis whatever has been shown for the intervention of the Court to delay completion of that sale.
Leave to appeal on these grounds should be refused.
The applicant made a variety of complaints in his written and oral submissions about the various orders made by the primary judge requiring him to take action to identify and remove his personal property from property 1A and, subsequently, to collect that property from storage and to pay storage costs.
No arguable error was shown by the applicant in relation to these orders. His Honour made generous orders allowing the applicant access to property 1A to remove his property. Kunc J made even more generous orders which provided that the trustees were empowered to arrange for a third-party storage facility for the storage of any chattels which the applicant directed to be placed in storage. The facts demonstrate that after 11 July, the trustees had cleared property 1A of goods and chattels and had placed them in a storage facility and offered the key to that storage facility to the applicant to collect whichever of those goods that he wanted. The applicant, however, refused to accept the key to the storage unit. The orders of Slattery J and Kunc J were extremely generous to the applicant. Although some unidentified breach of fiduciary duty on the part of the trustees was asserted by the applicant, no evidence of any such breach was identified.
No error, let alone any issue of principle, question of public importance or reasonably clear injustice going beyond something that is merely arguable, has been shown.
Leave to appeal on these grounds should be refused.
The applicant apparently pressed a complaint that he was denied a fair opportunity to be heard. To the contrary, the applicant was afforded abundant opportunities to make oral and written submissions to numerous members of this Court. It will be recalled it was the applicant who invoked the jurisdiction of the Court. To the extent that the applicant continued to complain about orders permitting the first respondent to be assisted by a friend at early hearings before Slattery J, no arguable error was shown. Much less did the applicant demonstrate any basis for his claim that there was apprehended bias on the part of Slattery J.
No error, let alone any issue of principle, question of public importance or reasonably clear injustice, has been shown.
Leave to appeal on these grounds should be refused
Each of Adamson JA (at [28](2)), Kunc J (at [24]), Price AJA (at [29](2)) and Lindsay J ordered that the applicant pay the respondents’ costs of the notices of motion he unsuccessfully brought. The power to award costs under s 98 of the Civil Procedure Act 2005 (NSW) is in the discretion of the court and is subject to the general rule that costs should follow the event: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). Generally, the “event” refers to the event of the claim and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15].
The applicant did not challenge the substantive orders made in any of these cases. No basis was shown to disrupt the costs orders correctly made by the respective judges.
Adamson JA correctly identified that her Honour’s powers on the motion were, in the circumstances, limited to granting a stay of orders made by Slattery J. Those orders could not be made given the fatal absence of necessary parties: see John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]-[133].
As to the hearing before Kunc J, whilst his Honour dismissed the applicant’s motion, his Honour made ancillary orders giving the applicant and his daughter one last opportunity to attend upon the property to take from it what they wished. No error was shown in Kunc J making orders having the effect of granting the applicant what his Honour correctly described as “a considerable indulgence” (at [22]). No error has been shown in the decision of Kunc J.
Price AJA made no arguable error. His Honour correctly applied the principles applicable to an application for expedition. Despite the importance of the sale of property 1A to the applicant, when considered in combination with his significant delay, having waited until the “eleventh hour” to bring this application, and the interests of the first respondent, Price AJA was clearly correct in finding that the applicant had not demonstrated that the circumstances required the Court to grant expedition. No reason has been shown to interfere with his Honour’s costs discretion.
As to the hearing before Lindsay J, the applicant did not put any material about that hearing before this Court. No error has been shown by the applicant in anything his Honour did in responding to the applicant’s last minute claim. Certainly, no reason has been shown to grant leave to consider a costs order about which the applicant led no evidence at all.
To the extent that the applicant sought leave to appeal about costs orders made against him, no error has been shown in the making of those orders and leave to appeal should be refused.
As I have said, there is a very considerable overlap between the issues raised by the second further amend summons seeking leave to appeal, the draft notice of appeal and the two extant motions.
I have dealt with each of the issues raised by the 4 June motion as follows:
I have rejected the complaints about the orders made by Adamson JA as without merit (ground 1).
I have rejected the applicant’s complaints about costs orders made against him (ground 2).
I have rejected the applicant’s complaints about allegedly “duplicative” proceedings and related failure to make orders under the Jurisdiction of Courts (Cross-Vesting) Act (ground 3).
Any orders about the support person appointed at one time to assist the first respondent are spent. There is no utility in a grant of leave to consider revoking such orders. Those orders were in any event not shown to be in error (ground 5).
I have rejected the applicant’s complaints about the appointment of independent trustees for sale and the failure to appoint the applicant as trustee for sale as without merit (grounds 7 and 8).
I have rejected the applicant’s complaints about the removal of his property as without merit (ground 6).
Any order “permitting” the applicant and his daughter to purchase both matrimonial properties at a “current court-ordered valuation” is spent. The applicant and his daughter have purchased property 1. The applicant and his daughter have contracted to purchase property 1A. No basis has been shown for a grant of leave to consider making orders interfering with those vested property rights (ground 10).
I have rejected the applicant’s complaints about jurisdiction (grounds 3 and 11).
I have rejected the applicant’s complaints about costs (grounds 9 and 12).
I have dealt with each of the issues raised by the 15 August motion as follows:
I have rejected the complaints about the orders made by Adamson JA as without merit (ground 2).
I have rejected the complaints about a failure to make a so-called “gap order” and the consequent failure to grant a stay of the auction as without merit (grounds 3 and 4).
I have rejected the applicant’s complaints about allegedly “duplicative” proceedings and the related failure to make orders under the Jurisdiction of Courts (Cross-Vesting) Act (ground 5).
I have rejected the applicant’s complaints about costs orders made against him (ground 6).
For the foregoing reasons, I would make the following orders:
Leave to appeal sought by the second further amended summons is refused.
Applicant to pay the respondents’ costs of the second further amended summons.
Notice of motion e-filed on 4 June 2025 is dismissed with costs.
Notice of motion e-filed on 15 August 2025 is dismissed with costs.
McHUGH JA: I agree with Payne JA.
FREE JA: I agree with Payne JA.
**********
Representation corrected
Rahman
Rahman [2025] NSWCA 219
(1936) 55 CLR 499
(1971) 125 CLR 546
(2010) 241 CLR 1
(1945) 70 CLR 141
(2014) 85 NSWLR 688
Leave to appeal sought by the second further amended summons was refused, and the applicant was ordered to pay the respondents’ costs of that summons; the notices of motion filed on 4 June 2025 and 15 August 2025 were dismissed with costs.
Proposed ground 10 complains about the alleged failure of Slattery J to adopt a “binding valuation” caused unnecessary costs, produced economic inefficiency and undermined fairness.
I will address these proposed grounds thematically and together with the same or similar issues raised in the summons seeking leave to appeal.
As to the applicant’s property, it was submitted that the trustees “failed their fiduciary duties” by failing to permit the applicant’s access to property 1A and caused loss of the applicant’s and his daughter’s “personal and sentimental property”.
Finally, as to costs, the applicant asserted that he should not have been ordered to pay the costs of any of the applications he made and should, instead, have been awarded costs.