ANZ v Ebsworth - [2015] NSWSC 1456

Supreme Court

New South Wales

Medium Neutral Citation: ANZ v Ebsworth [2015] NSWSC 1456
Hearing dates: 14 August 2015
Decision date: 02 October 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
First and Second Defendants’ Notice of Motion, dated and filed 18 June 2015, is dismissed.

Catchwords: PROCEDURE – Civil – Interlocutory issues – Cross-vesting – Application to have proceedings transferred to Family Court of Australia under s 5(1)(b)(ii) Jurisdiction of Courts (Cross-vesting) Act 1987 – Possession claim by plaintiff lender/mortgagee in Supreme Court – Proceedings subsequently commenced in the Family Court by second defendant to set aside Binding Financial Agreement entered into under s 90UD Family Law Act 1975 (Cth) – Whether Family Court has jurisdiction in respect of the proceedings commenced by the plaintiff – Whether there existed only one justiciable controversy – Whether common substratum of facts – Held that the two proceedings involved two separate controversies – Supreme Court proceedings involved different parties, transactions and property to Family Court proceedings – Property securing certain of the loan facilities in respect of which the plaintiff sought an order for possession was not property of the de facto partners but was property of the first defendant, sister to the second defendant - Family Court did not have accrued jurisdiction to hear possession dispute involving multiple third parties to the Family Court proceedings – It would not be in the interests of justice to transfer the proceedings – Application for transfer dismissed
Legislation Cited: Australian Securities and Investment Commission Act 2011 (Cth)
Contracts Review Act 1980
Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987
Cases Cited: Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339
Commonwealth Bank of Australia v Newhook [2015] NSWSC 41; (2015) 52 Fam LR 100
Fencott v Muller (1983) 152 CLR 570
In the Marriage of Warby (2001) 166 FLR 319
Rayhill v Lewis (Family Court of Australia, unreported, 8 March 2005)
Re Wakim; ex parte McNally (1999) 198 CLR 511
Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36
Category: Procedural and other rulings
Parties: Australia and New Zealand Banking Group Limited (Plaintiff/Respondent)
Marion Norma Ebsworth (First Defendant/Applicant)
Gaye Daphne Davies (Second Defendant/Applicant)
Representation:
Counsel:
MA Ashhurst SC; CE Bannan (Plaintiff/Respondent)
BK Nolan (Defendants/Applicants)
Solicitors:
Kemp Strang (Plaintiff/Respondent)
Legal Minds (Defendants/Applicants)

File Number(s): 2015/106627

Judgment

Cross-Vesting Application

This is an application brought by way of Notice of Motion by the defendants, Marion Norma Ebsworth and Gaye Daphne Davies, to have proceedings transferred to the Family Court of Australia under s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). The Notice of Motion was supported by the affidavit of Christopher Kimberly Charles Serow, solicitor, sworn 13 July 2015.
The Australia and New Zealand Banking Group (“the ANZ”), as respondent to the application, relied upon the affidavit of Sarina Roppolo, solicitor, sworn 13 August 2015. Both parties filed written submissions which were supplemented by oral submissions at the hearing of the application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ANZ v Ebsworth

Details

AGLC: ANZ v Ebsworth [2015] NSWSC 1456
Case: [2015] NSWSC 1456
Decision Date: 02 October 2015

CaseChat Overview and Summary

The ANZ Bank Limited (ANZ) sought to have the proceedings for the possession of certain properties transferred to the Family Court of Australia from the Supreme Court of New South Wales. The respondents to the proceedings in the Supreme Court were the first defendant, who was the owner of the properties, and the second defendant, who was the first defendant's sister. The second defendant had commenced proceedings in the Family Court to set aside a Binding Financial Agreement entered into under the Family Law Act 1975 (Cth). The primary legal issue before the court was whether the Family Court had jurisdiction to hear the proceedings, given that the proceedings in the Family Court involved a different set of parties, transactions, and properties to those in the Supreme Court proceedings. The court also needed to determine whether there was only one justiciable controversy and whether there was a common substratum of facts in the two sets of proceedings.

The court found that the two proceedings involved two separate controversies. The Supreme Court proceedings involved different parties, transactions, and properties to the Family Court proceedings. The property securing certain of the loan facilities in respect of which ANZ sought an order for possession was not property of the de facto partners but was property of the first defendant, sister to the second defendant. The court held that the Family Court did not have accrued jurisdiction to hear the possession dispute involving multiple third parties to the Family Court proceedings. It was not in the interests of justice to transfer the proceedings to the Family Court.

The court dismissed the application to have the proceedings transferred to the Family Court. The court found that it would not be in the interests of justice to transfer the proceedings, given the differences between the parties, transactions, and properties involved in the two sets of proceedings. The court held that the two proceedings involved two separate controversies and that there was no common substratum of facts. The court also found that the Family Court did not have accrued jurisdiction to hear the possession dispute involving multiple third parties to the Family Court proceedings. The court dismissed the application for transfer.

Orders