Rahman v Rahman (No 4)

Before: Slattery J

Decision: Orders made to facilitate access to the goods in storage and otherwise to ensure the Trustees have vacant possession of the unsold property and that they can proceed with its sale. Costs reserved.

Catchwords: CIVIL PROCEDURE – interim preservation – preservation of property – Trustees for sale appointed to sell certain former matrimonial property – plaintiff seeks a stay on Trustees for sale completing their sale of certain real estate – orders made for goods to be removed from certain real estate and placed in storage to facilitate the Trustees for sale selling the real estate – dispute about the ownership of and access to the goods so removed – what orders should be made to preserve the rights of all parties – no issue of principle.

Legislation Cited: Civil Procedure Act 2005, Chapter 6
Family Law Act 1975 (Cth), s 79

Cases Cited: Adamson & Korac (No. 2) [2022] FedCFFAMCC1F 638
Auden & Auden [2018] FamCA 831
Field & Kingston [2021] FedCFamC1F 353
Foley & Foley [2018] FamCA 319
Ledarn & Ledarn [2013] FamCA 858
Matthews & Norris [2020] FamCA 547
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

Category: Consequential orders

Parties: Fahmid Rahman (Plaintiff)
Mita Rahman (First Defendant)
Wafa Rahman (Second Defendant)

Representation: Counsel:
L McIntyre (Trustees)
Solicitors:
Fleming Law and Emerson Lewis Lawyers (Trustees)
Fahmid Rahman (Self-represented)
Mita Rahman (No appearance)

File Number(s): 2024/374705

Publication restriction: No

JUDGMENT

1. These vigorously contested proceedings returned to Court on Friday, 18 July 2025 to resolve further issues after the execution of the orders Kunc J made on 11 July 2025: Rahman v Rahman [2025] NSWSC 752.

2. These reasons assume familiarity with the Court’s previous judgments in these proceedings, which apart from Kunc J’s decision last Friday are my decisions: Rahman v Rahman [2024] NSWSC 1616, Rahman v Rahman (No. 2) [2025] NSWSC 516 and Rahman v Rahman (No. 3) [2025] NSWSC 678. Persons, events and things are referred to in this judgment in the same way as my previous judgments.

3. Once again, the plaintiff, Mr Fahmid Rahman appeared for himself, and the defendant, Ms Mita Rahman appeared with the assistance of her next friend, Mr Gilmore. Mr McIntyre of counsel instructed by Fleming Law appeared for the Trustees.

4. Ms Wafa Rahman did not appear but forwarded a medical certificate to the Court to indicate that she would be absent. The medical certificate indicated that Ms Wafa Rahman was “suffering from a medical condition” and would be “unfit for work” on 17 and 18 July. But her covering correspondence indicated that her intention was “to have claimed costs” on 18 July. She did not mention any other specific claim.

5. On 11 July Kunc J, as Duty Judge, declined to stay orders made on 12 June 2025 which had been made to facilitate the clearance of Property 1A and to ensure that the Trustees were able to offer Property 1A for sale with vacant possession. Kunc J kept the structure of the orders of 12 June in place and balanced the rights of the parties by allowing the Trustees to collect the goods and chattels from Property 1A and place them in storage. This was to allow Mr Rahman and Ms Wafa Rahman to collect the goods in a manner which would not interfere with the Trustees’ sale program for Property 1A.

6. The Trustees reported to the Court in writing on 18 July 2025 (Exhibit A) concerning the execution of Kunc J’s orders and in relation to other matters to facilitate the progress of the sale of Property 1A. The Court accepts from that report and from statements from the Bar table that since 11 July the Trustees have cleared Property 1A of the disputed goods and chattels and have since placed them in a storage facility and offered the key to that storage facility to Mr Rahman to collect whichever of those goods that he and Ms Wafa Rahman claim. But Mr Rahman refused to accept the key to the storage unit.

7. A dispute broke out between the parties about Ms Mita Rahman’s attendance at Property 1A on 13 July 2025. She apparently did so to remove a carry bag and some fruit, but contractors engaged by the Trustees removed all other movables at Property 1A. Mr Rahman alleged that during her attendance at Property 1A, Ms Mita Rahman had removed and disposed of property belonging to Ms Wafa Rahman. Based on information supplied by the contractors, the Trustees do not believe that Ms Mita Rahman removed any of Ms Wafa Rahman’s property at Property 1A. Mr Rahman did not seek any admissions concerning this issue from Ms Mita Rahman on 18 July. Mr Rahman did not identify anything which was said to be missing from Property 1A as result of Ms Mita Rahman’s conduct but complained that the Trustees should have reported the matter to the Police. But as nothing belonging either to Mr Rahman or to Ms Wafa Rahman has been identified as missing there is no need to trouble the Police further about this matter. Nevertheless, the orders today give Ms Wafa Rahman an opportunity, should she choose, to collect any goods or chattels from the storage facility to which they have now been relocated.

The Issues

8. The Court was asked to resolve four main contests:

9. whether the Trustees should discharge certain secured and unsecured liabilities of Mr Rahman and Ms Mita Rahman out of the proceeds of sale,

10. whether the Trustees should be restrained from further progressing the sale of Property 1A,

11. if Mr Rahman were to purchase Property 1A, whether 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, and

12. what further allowances should be made to permit Mr Rahman or Mr Wafa Rahman to claim goods left behind in Property 1A and which are presently held in storage pursuant to the orders of Kunc J of 11 July 2025.

13. (1) The discharge of liabilities. The Trustees applied for leave to discharge the liabilities set out in paragraph 21 of Exhibit A and certain credit card liabilities. The Trustees presently hold $317,539.95 in trust following the sale of Property 1. The liabilities which the Trustees propose to be paid total $259,683.26. They cover a range of expenses discussed in earlier judgments of the Court: council and water rates, conveyancing fees incurred when Ms Mita Rahman was the trustee for sale, repayment of a loan to Ms Mita Rahman taken out by her, legal fees due from Mr Rahman, incidental costs in preparing Property 1A for sale, storage costs to give effect to Kunc J’s decision of 11 July 2025 and the Trustees’ fees to date.

14. Among these various liabilities the largest single item was the Trustees’ fees to date of $122,004.02. The Trustees have pressed forward with the sale of these two properties and should be paid for their services so far from the funds available from the sale of the first property.

15. The parties were agreed that the credit card liabilities should be paid, indeed the orders of the Federal Circuit and Family Court of Australia of 24 March 2023 require these liabilities to be paid. Based on information supplied by Mr Rahman in Court, the parties agreed that the outstanding credit card liability as at 18 July was $14,248.69. But Mr Rahman contested that some of the Exhibit A, paragraph 21 liabilities should not be paid: Rahman v Rahman (No.3) at [68].

16. All these external liabilities are due and payable and most are accruing interest. They should therefore be paid now. Many of them are the subject of securities over Property 1 and Property 1A. The amounts can be paid down without yet determining which of those liabilities Mr Rahman or Ms Rahman should bear. Some of them are clear such as the legal fees incurred by Mr Rahman and Ms Mita Rahman respectively, but the ultimate financial responsibility for other liabilities is disputed and can be determined later.

17. (2) Restraint on the sale. Mr Rahman applied orally for an injunction restraining the Trustees continuing with the sale of Property 1A. Ms Rahman and the Trustees sought for the sale to proceed. The Trustees have reported that unless restrained they will advertise Property 1A for sale from 18 July with a four-week marketing campaign and an auction date anticipated for 23 August 2025 followed by six-week settlement period. Mr Rahman has expressed concerns about the security of Property 1A, but the Court is satisfied that its security has been checked and that it is secure against reasonably anticipated risks.

18. Mr Rahman submitted that the Trustees should not proceed with the sale by public auction which they have recommended. Instead, Mr Rahman submitted that Property 1A, should be sold to him in accordance with a valuation ordered by the FCFCOA on 16 June 2022. Mr Rahman submits that some $20,000 was applied to retaining a valuer to conduct that valuation at that time. Based on FCFCOA authority, Mr Rahman submits that valuations commissioned or adopted under FCFCOA orders are binding unless formally challenged, and that their evidentiary and procedural authority is well-established and they form the foundation of fair property distribution under the Family Law Act 1975 (Cth), s 79: Foley & Foley [2018] FamCA 319; Matthews & Norris [2020] FamCA 547; Adamson & Korac (No. 2) [2022] FedCFFAMCC1F 638. Mr Rahman submits that the valuation was obtained from Independent Property Valuations Pty Limited (“IPV”) through Ms Mita Rahman's legal representatives and "must accordingly guide any sale of property 1A absent any lawful objections."

19. This argument is not persuasive. First, it is inconsistent with the orders of the FCFCOA made on 24 March 2023. By the time those orders were made, the IPV valuation would have already been approximately nine months old. Those orders are remarkable for saying nothing about a sale in accordance with a pre-existing IPV valuation: Rahman v Rahman (No. 3) at [68]. Instead, those orders refer to the sale of both Property 1 and Property 1A, in terms that assume that the sale may be either by auction or by private treaty and that the sales may involve the payment of real estate agent’s commission. The making of orders in that form is inconsistent with a sale in accordance with the IPV valuation, which would involve neither an agent nor an auction. It can only be inferred that the final orders of 24 March 2023 superseded whatever had been previously ordered concerning the IPV valuation.

20. Secondly, Mr Rahman did not direct the Court to any other Court order of the FCFCOA or agreement which would be a basis for the Court now to infer a compulsory sale pursuant to the IPV valuation.

21. Thirdly, a valuation undertaken in January 2022 does not provide any sensible guide to the current value of property 1A some three years later in a rising property market.

22. Mr Rahman further submits that further valuations serve as a reliable benchmark for private acquisition, minimising litigation costs, emotional hardship and procedural instability associated with public auction and ensure a just and equitable and child focused outcome relying upon authorities such as Ledarn & Ledarn [2013] FamCA 858; Field & Kingston [2021] FedCFamC1F 353 and Auden & Auden [2018] FamCA 831.

23. This argument is also answered by the final orders made on 24 March 2023 which did not specify, or even mention, a private sale pursuant to the IPV valuation.

24. Mr Rahman finally argues that nothing in the 24 March 2023 orders prohibits the sale of property 1A to Mr Rahman or Ms Wafa Rahman. Mr Rahman indicates he is determined buy the property. But Mr Rahman can buy the property – at auction. He will not be prevented from bidding. His bidding is likely to support the market for the property.

25. Mr Rahman has not shown any sound basis to restrain the sale. And the balance of convenience lies strongly against any pause in the sale process at this point. The Trustees for sale are costly, as they often are, and should complete their work as soon as possible.

26. (3) Crediting the proceeds of sale. In the event the sale of Property 1A proceeds, Mr Rahman applied orally to credit his share of the sale proceeds against his payment obligations, if he became the successful purchaser of the property.

27. The difficulty with Mr Rahman’s proposal is that his final entitlements to the proceeds of sale of Property 1 and Property 1A cannot now be reliably determined. Apart from the joint contingent liabilities that he and Ms Rahman may face, such as capital gains tax, his share of the net proceeds is at risk of being substantially diminished. Ms Mita Rahman contends that he is responsible for the need to appoint Trustees for sale in the first place and their cost. On the contrary, Mr Rahman says that she is responsible and that they should only have been appointed upon terms that she pays the Trustees’ costs because of her failure to discharge her duties under her original appointment as trustee for sale. She disputes this contention. But even if there is substance to it, she seems likely to field a counter argument that since the appointment of the Trustees for sale, Mr Rahman has engaged in unnecessary and unreasonable applications to the Court, which have markedly increased the Trustees’ overall costs, leading to a costs blowout for which he is responsible.

28. 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.

29. (4) The goods in storage. The goods held in storage represent a continuing aggravation between these parties and they are accruing storage fees. Mr Rahman insists that the goods from Property 1A that are now in storage include goods that he says that Ms Wafa Rahman claims. But Ms Wafa Rahman was not in Court today to articulate that claim. If Ms Wafa Rahman does indeed claim goods that were in Property 1A and are now in storage, she has never formalised that claim either in writing, or on the occasions when she has been in Court.

30. Mr Rahman seems to be more animated by this claim than Ms Wafa Rahman. In response, the Trustees have offered him the key to the storage unit where the goods are kept. The Court requested the Trustees to provide the key to the storage unit to Mr Rahman, but he twice refused to take it in open Court. He did not give a satisfactory reason for refusing to accept the key.

31. If Ms Wafa Rahman really does have a claim over these goods, she should be given a reasonable opportunity to exercise that claim and retrieve her goods but her time to do so should not be unlimited. The Court will make directions to ensure that she can collect the key from the Court Registry where it will be deposited. But she must collect it within the next two weeks and remove her goods from the storage unit within the following two weeks.

Other Matters

28. Mr Rahman advanced several arguments which should be mentioned. Firstly, he repeated his contention that these proceedings should be referred back to the FCFCOA. That issue was dealt with comprehensively in Rahman v Rahman (No. 3) at [64] – [70].

29. Secondly, Mr Rahman seeks that Ms Mita Rahman pay him lost rental income, legal costs, mortgage interest and servicing costs, and costs incurred as a direct consequence of her alleged failure to sell the properties when she was sole trustee for sale.

30. All these matters can await the completion of the sale of Property 1A. Some of these issues are incidental to the sale by the Trustees for sale. Others may have to go back to the Family Court.

31. Ms Mita Rahman has also provided written submissions, contending that the Mr Rahman is responsible for many of the costs incurred by the Trustees and that those costs should be to his account, rather than to hers. This contention will also be dealt with after Property 1A is sold.

32. These competing submissions about who should bear the Trustees’ costs mean the Trustees should formulate their final report to the Court, to contrast:

(a) the costs that they anticipate would have been expended on executing their trusteeship for sale in the ordinary course; against (b) the Trustees’ costs that have actually been incurred, due to the Court applications that have taken place and due to the conduct of the parties.

Conclusions and Orders

33. This resolves the immediate issues before the Court today and will facilitate the Trustees having vacant possession of property 1A and will smooth the way for its sale in the near term.

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.

35. Kunc J has become familiar with this matter. As I am about to go on leave until 20 October, applications in the proceedings before then should be made to the Associate to Kunc J.

36. For these reasons the Court makes the following orders, notations and directions:

37. 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.

38. 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 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 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.