Beaumont v Mirosevich - [2023] NSWDC 608

District Court

New South Wales

Medium Neutral Citation: Beaumont v Mirosevich [2023] NSWDC 608
Hearing dates: 18 August 2023
Date of orders: 18 August 2023
Decision date: 18 August 2023
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
In relation to the Notice of Motion filed 17 August 2023:
(1) The Notice of Motion filed 17 August 2023 is returnable instanter;
(2) On the giving through his counsel of:
(a) An undertaking by the defendant to commence proceedings in the Federal Circuit and Family Court of Australia (Division 2) no later than 18 September 2023 seeking relief against the plaintiff arising from their former relationship, including the setting aside of the Heads of Agreement dated 30 March 2023 and the Deed of Settlement and Release dated 12 April 2023 between the plaintiff and the defendant or similar relief in relation to the consequences of that Agreement and the Deed; and
(b) An undertaking to prosecute such proceedings expeditiously,
pursuant to section 67 of the Civil Procedure Act 2005 (NSW) these proceedings are stayed until 5.00pm on 20 September 2023 or until further order.
(3) The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed.
(4) The hearing of the Notice of Motion listed to commence on 23 August 2023 is vacated.
(5) The defendant is to pay the plaintiff's costs thrown away by reason of the vacation of the hearing date as agreed or assessed.
(6) The costs referred to in orders (3) and (5) may be assessed forthwith.
(7) The matter is listed for further directions on 20 September 2023 before the Civil List Judge at 9.30am.
(8) Liberty to apply on two business days’ notice.
(9) The time for the defendant to pay into court the sum of $170,000 is extended to 9.30am on 20 September 2023.
Note:
The vacation is due to foreshadowed Family Court proceedings arising out of the alleged de facto relationship said to give potentially exclusive jurisdiction to the Family Court to determine the disputes between the parties.

Catchwords:
PRACTICE AND PROCEDURE – enforcement of alleged settlement agreement – stay sought due to proposed proceedings in the Federal Circuit and Family Court of Australia between the parties who were alleged to have been in a de facto relationship – principles applicable

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)

Cases Cited:
AvianivLoh (No 2) [2022] NSWSC 1148

Category: Procedural rulings
Parties: Nicole Lesley Beaumont (Plaintiff)
Richard Andrew Mirosevich (Defendant)
Representation:
Counsel:
E White (Plaintiff)
R Reynolds (Defendant)
Solicitors:
Light House Law Group (Plaintiff)
Beswick Lynch Lawyers (Defendant)

File Number(s): 2022/00215390
Publication restriction: No

JUDGMENT – ex tempore

Before the Court is a Notice of Motion filed by the defendant on 17 August 2023 seeking, in substance, a stay of the Notice of Motion listed to be heard next week.
In support of the application, the affidavit of Timothy James Lynch dated 17 August 2023 was read. Essentially, the background to the matter…

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 Beaumont v Mirosevich

Details

AGLC: Beaumont v Mirosevich [2023] NSWDC 608
Case: [2023] NSWDC 608
Decision Date: 18 August 2023

CaseChat Overview and Summary

Beaumont v Mirosevich involved a dispute regarding the enforcement of an alleged settlement agreement. The matter came before the court where the defendant sought a stay of proceedings due to proposed proceedings in the Federal Circuit and Family Court of Australia (Division 2) between the parties, who were alleged to have been in a de facto relationship. The court had to decide whether the proceedings should be stayed pending the outcome of the proposed Family Court proceedings.

The court considered the principles applicable to the enforcement of settlement agreements in light of potential exclusive jurisdiction in the Family Court. The court noted that the Federal Circuit and Family Court of Australia (Division 2) has exclusive jurisdiction over certain family law matters, including disputes arising out of a de facto relationship. The court determined that if the Family Court had exclusive jurisdiction, the Supreme Court should stay its proceedings to avoid a conflict of jurisdiction.

The court concluded that the proposed Family Court proceedings related to the same subject matter as the current proceedings and were likely to be determined concurrently. Given the potential exclusive jurisdiction of the Family Court, the court decided to stay the proceedings in the Supreme Court until the Family Court proceedings were finalised. The court required the defendant to provide an undertaking to commence the Family Court proceedings expeditiously and to set aside the settlement agreement if appropriate. The court also ordered that the defendant pay the plaintiff's costs associated with the Notice of Motion and the vacated hearing date.

The final orders included a stay of the proceedings in the Supreme Court until 5.00pm on 20 September 2023 or until further order, subject to the defendant commencing the Family Court proceedings and providing the required undertakings. The defendant was also ordered to pay the plaintiff's costs and to extend the time for paying a sum of $170,000 into court. The matter was listed for further directions on 20 September 2023 before the Civil List Judge.

Orders

Orders of the court

In relation to the Notice of Motion filed 17 August 2023:

(1) The Notice of Motion filed 17 August 2023 is returnable instanter;

(2) On the giving through his counsel of:

(a) An undertaking by the defendant to commence proceedings in the Federal Circuit and Family Court of Australia (Division 2) no later than 18 September 2023 seeking relief against the plaintiff arising from their former relationship, including the setting aside of the Heads of Agreement dated 30 March 2023 and the Deed of Settlement and Release dated 12 April 2023 between the plaintiff and the defendant or similar relief in relation to the consequences of that Agreement and the Deed; and

(b) An undertaking to prosecute such proceedings expeditiously,

pursuant to section 67 of the Civil Procedure Act 2005 (NSW) these proceedings are stayed until 5.00pm on 20 September 2023 or until further order.

(3) The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed.

(4) The hearing of the Notice of Motion listed to commence on 23 August 2023 is vacated.

(5) The defendant is to pay the plaintiff's costs thrown away by reason of the vacation of the hearing date as agreed or assessed.

(6) The costs referred to in orders (3) and (5) may be assessed forthwith.

(7) The matter is listed for further directions on 20 September 2023 before the Civil List Judge at 9.30am.

(8) Liberty to apply on two business days’ notice.

(9) The time for the defendant to pay into court the sum of $170,000 is extended to 9.30am on 20 September 2023.

Note:

The vacation is due to foreshadowed Family Court proceedings arising out of the alleged de facto relationship said to give potentially exclusive jurisdiction to the Family Court to determine the disputes between the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Beaumont v Mirosevich [2023] NSWDC 608
Hearing dates:	18 August 2023
Date of orders:	18 August 2023
Decision date:	18 August 2023
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	In relation to the Notice of Motion filed 17 August 2023: (1) The Notice of Motion filed 17 August 2023 is returnable instanter; (2) On the giving through his counsel of: (a) An undertaking by the defendant to commence proceedings in the Federal Circuit and Family Court of Australia (Division 2) no later than 18 September 2023 seeking relief against the plaintiff arising from their former relationship, including the setting aside of the Heads of Agreement dated 30 March 2023 and the Deed of Settlement and Release dated 12 April 2023 between the plaintiff and the defendant or similar relief in relation to the consequences of that Agreement and the Deed; and (b) An undertaking to prosecute such proceedings expeditiously, pursuant to section 67 of the Civil Procedure Act 2005 (NSW) these proceedings are stayed until 5.00pm on 20 September 2023 or until further order. (3) The defendant is to pay the plaintiff's costs of the Notice of Motion as agreed or assessed. (4) The hearing of the Notice of Motion listed to commence on 23 August 2023 is vacated. (5) The defendant is to pay the plaintiff's costs thrown away by reason of the vacation of the hearing date as agreed or assessed. (6) The costs referred to in orders (3) and (5) may be assessed forthwith. (7) The matter is listed for further directions on 20 September 2023 before the Civil List Judge at 9.30am. (8) Liberty to apply on two business days’ notice. (9) The time for the defendant to pay into court the sum of $170,000 is extended to 9.30am on 20 September 2023. Note: The vacation is due to foreshadowed Family Court proceedings arising out of the alleged de facto relationship said to give potentially exclusive jurisdiction to the Family Court to determine the disputes between the parties.
Catchwords:	PRACTICE AND PROCEDURE – enforcement of alleged settlement agreement – stay sought due to proposed proceedings in the Federal Circuit and Family Court of Australia between the parties who were alleged to have been in a de facto relationship – principles applicable
Legislation Cited:	Civil Procedure Act 2005 (NSW) Family Law Act 1975 (Cth)
Cases Cited:	AvianivLoh (No 2) [2022] NSWSC 1148
Category:	Procedural rulings
Parties:	Nicole Lesley Beaumont (Plaintiff) Richard Andrew Mirosevich (Defendant)
Representation:	Counsel: E White (Plaintiff) R Reynolds (Defendant) Solicitors: Light House Law Group (Plaintiff) Beswick Lynch Lawyers (Defendant)
File Number(s):	2022/00215390
Publication restriction:	No