Rahman v Rahman

1. [1]

   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”).

2. [2]

   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.

3. [3]

   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.

4. [4]

   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.

5. [5]

   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.

6. [6]

   At the outset of the hearing in this Court on 10 September 2025, the applicant was granted leave to file in Court:

   1. (1)

      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

   2. (2)

      A draft notice of appeal in the form annexed and marked “B” to the affidavit of Fahmid Rahman affirmed on 2 September 2025.

7. [7]

   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.

Factual findings and procedural history

1. [8]

   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.

2. [9]

   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.

3. [10]

   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.

4. [11]

   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.

5. [12]

   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.

6. [13]

   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.

7. [14]

   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.

8. [15]

   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.

9. [16]

   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.

10. [17]

    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].

11. [18]

    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].

12. [19]

    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].

13. [20]

    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:

14. [21]

    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.

15. [22]

    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.

16. [23]

    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).

17. [24]

    As to the jurisdictional complaint made by the applicant, Slattery J said:

18. [25]

    On 14 May 2025, Slattery J made the following orders:

19. [26]

    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.

20. [27]

    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.

21. [28]

    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].

22. [29]

    On 2 June 2025, Adamson JA dismissed the applicant’s notice of motion and made the following orders:

23. [30]

    In the present proceeding, the applicant did not seek to challenge the substantive outcome of the motion before Adamson JA but disputed the order as to costs.

24. [31]

    The subject of the third judgment by Slattery J in Rahman v Rahman (No 3) [2025] NSWSC 678 was a notice of motion filed on 30 May 2025 by the trustees, who sought the following orders in respect of those properties against the applicant:

25. [32]

    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.

26. [33]

    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.

27. [34]

    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.

28. [35]

    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.

29. [36]

    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.

30. [37]

    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:

31. [38]

    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.

32. [39]

    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.

33. [40]

    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.

34. [41]

    On 11 July 2025, the day after, the applicant approached Kunc J, the duty judge at that time, and sought the following orders:

35. [42]

    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.

36. [43]

    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.

37. [44]

    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.

38. [45]

    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.

39. [46]

    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:

40. [47]

    In the present proceeding, the applicant did not seek to challenge any of the substantive orders made by Kunc J but sought to dispute his Honour’s costs order.

41. [48]

    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].

42. [49]

    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.

43. [50]

    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.

44. [51]

    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.

45. [52]

    The following orders were made:

46. [53]

    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.

47. [54]

    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:

48. [55]

    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].

49. [56]

    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.

50. [57]

    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.

51. [58]

    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.

52. [59]

    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.

53. [60]

    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.

54. [61]

    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.

55. [62]

    On 22 August 2025, the applicant appeared before Lindsay J seeking a “stay” of the auction and a “gap order” (essentially seeking a determination that he was entitled to the proceeds of the sale of the properties in an amount which he could set off against the purchase price for property 1A). With respect to Lindsay J’s orders, the essence of the applicant’s complaint appeared to be that he was seeking a “gap order” at the hearing before Lindsay J and that his Honour did not sufficiently perceive his case as seeking a “gap order”. The Associate’s Record of Proceedings which recorded the orders made by Lindsay J provided as follows:

56. [63]

    In the present proceeding, it seems that the applicant did not seek to challenge the substantive orders made by Lindsay J but disputed his Honour’s orders about costs.

57. [64]

    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.

58. [65]

    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.

59. [66]

    On or about 29 August 2025, the trustees were served with:

    1. (1)

       a Garnishee Order in favour of Rodney Kent and Tim Orlizki (trading as Kent Attorneys) for the amount of $24,421.50; and

    2. (2)

       a Garnishee Order in favour of Rodney Kent and Tim Orlizki (trading as Kent Attorneys) for the amount of $2,513.00.

60. [67]

    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:

    1. (1)

       the $190k credit already applied to Mr Rahman’s purchase of property 1;

    2. (2)

       funds paid to Kent Attorneys on behalf of Mr Rahman;

    3. (3)

       potential CGT liabilities; and

    4. (4)

       the existence of known or potential creditors who may garnish the proceeds of sale.

Summons, amended summons and second further amended summons

1. [68]

   On 27 May 2025, this application for leave to appeal was commenced by the applicant’s filing of a summons seeking leave to appeal. That summons sought the following orders against the first respondent:

2. [69]

   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.

3. [70]

   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:

4. [71]

   The applicant’s complaints in the second further amended summons may be summarised as falling into six groups:

   1. (1)

      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;

   2. (2)

      Complaints about the appointment of the independent trustees for sale;

   3. (3)

      Complaints about the decision to remove the applicant’s caveat AU416734 with respect to property 1;

   4. (4)

      Complaints about orders permitting the trustees to remove the applicant’s chattels from property 1A;

   5. (5)

      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

   6. (6)

      Complaints about how the costs of the trustees for sale should be paid.

5. [72]

   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.

6. [73]

   The draft notice of appeal ranges over similar but not identical grounds:

   1. (1)

      Proposed ground 1 complains about a failure to extend caveat AU416734.

   2. (2)

      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.

   3. (3)

      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.

   4. (4)

      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.

   5. (5)

      Proposed ground 5 complains that Slattery J erred in appointing trustees for sale pursuant to s 66G of the Conveyancing Act 1919 (NSW).

   6. (6)

      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.

   7. (7)

      Proposed ground 7 complains about the lack of jurisdiction in this Court to “alter property interests and appoint trustees” in “matrimonial matters”.

   8. (8)

      Proposed ground 8 complains about an alleged denial of procedural fairness.

   9. (9)

      Proposed ground 9 complains that the appointment of independent trustees for sale “conflicted with the Family Court’s jurisdiction and authority”.

   10. (10)

       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.

7. [74]

   I will address these proposed grounds thematically and together with the same or similar issues raised in the summons seeking leave to appeal.

Additional evidence

1. [75]

   At the hearing, the applicant tendered without objection two email communications between himself and the trustees, consisting of:

   1. (1)

      a copy of an email from Andrew Hack to Fahmid Rahman dated 10 January 2025; and

   2. (2)

      a copy of an email from Fahmid Rahman to Andrew J Fleming dated 17 August 2025.

2. [76]

   Those email communications were marked Exhibit 1.

3. [77]

   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.

4. [78]

   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.

5. [79]

   It is to be noted that the following matters, in particular, emerged from that evidence:

   1. (1)

      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.

   2. (2)

      As earlier noted, settlement of property 1A is due to occur on 6 October 2025.

   3. (3)

      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.

Submissions

1. [80]

   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.

2. [81]

   The applicant submitted that leave to appeal should be allowed because:

3. [82]

   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.

4. [83]

   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:

5. [84]

   Further, it is clear that the sale of property 1 has been completed and the sale of property 1A is due to be completed on 6 October 2025:

6. [85]

   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.

7. [86]

   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”.

8. [87]

   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.

9. [88]

   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”:

10. [89]

    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.

11. [90]

    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.

12. [91]

    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.

13. [92]

    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.

14. [93]

    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.

15. [94]

    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.

16. [95]

    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 Family Law Act. 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.

17. [96]

    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”.

18. [97]

    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.

Consideration

1. [98]

   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).

2. [99]

   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.

3. [100]

   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.

4. [101]

   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:

5. [102]

   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.

6. [103]

   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.

7. [104]

   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.

8. [105]

   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:

9. [106]

   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.

10. [107]

    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.

11. [108]

    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):

12. [109]

    No error was shown in his Honour’s conclusions.

13. [110]

    Finally, the applicant’s submission that the independent trustees were appointed under s 66G of the Conveyancing Act is simply incorrect.

14. [111]

    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.

15. [112]

    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.

16. [113]

    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:

17. [114]

    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.

18. [115]

    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.

19. [116]

    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.

20. [117]

    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.

21. [118]

    Leave to appeal on these grounds should be refused.

22. [119]

    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.

23. [120]

    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.

24. [121]

    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:

25. [122]

    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.

26. [123]

    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.

27. [124]

    Leave to appeal on these grounds should be refused.

28. [125]

    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.

29. [126]

    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.

30. [127]

    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.

31. [128]

    Leave to appeal on these grounds should be refused.

32. [129]

    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.

33. [130]

    No error, let alone any issue of principle, question of public importance or reasonably clear injustice, has been shown.

34. [131]

    Leave to appeal on these grounds should be refused

35. [132]

    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].

36. [133]

    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.

37. [134]

    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].

38. [135]

    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.

39. [136]

    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.

40. [137]

    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.

41. [138]

    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.

42. [139]

    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.

43. [140]

    I have dealt with each of the issues raised by the 4 June motion as follows:

    1. (1)

       I have rejected the complaints about the orders made by Adamson JA as without merit (ground 1).

    2. (2)

       I have rejected the applicant’s complaints about costs orders made against him (ground 2).

    3. (3)

       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).

    4. (4)

       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).

    5. (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).

    6. (6)

       I have rejected the applicant’s complaints about the removal of his property as without merit (ground 6).

    7. (7)

       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).

    8. (8)

       I have rejected the applicant’s complaints about jurisdiction (grounds 3 and 11).

    9. (9)

       I have rejected the applicant’s complaints about costs (grounds 9 and 12).

44. [141]

    I have dealt with each of the issues raised by the 15 August motion as follows:

    1. (1)

       I have rejected the complaints about the orders made by Adamson JA as without merit (ground 2).

    2. (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).

    3. (3)

       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).

    4. (4)

       I have rejected the applicant’s complaints about costs orders made against him (ground 6).

Conclusion and proposed orders

1. [142]

   For the foregoing reasons, I would make the following orders:

   1. (1)

      Leave to appeal sought by the second further amended summons is refused.

   2. (2)

      Applicant to pay the respondents’ costs of the second further amended summons.

   3. (3)

      Notice of motion e-filed on 4 June 2025 is dismissed with costs.

   4. (4)

      Notice of motion e-filed on 15 August 2025 is dismissed with costs.

2. [143]

   McHUGH JA: I agree with Payne JA.

3. [144]

   FREE JA: I agree with Payne JA.