Brown v Anstis anor (No 3) - [2013] NSWSC 1937

Supreme Court

New South Wales

Medium Neutral Citation: Brown and anor v Anstis anor (No 3) [2013] NSWSC 1937
Hearing dates: 17 October 2013
Decision date: 20 December 2013
Before: Bellew J
Decision:
(1)The second defendant is to pay the plaintiffs' costs of the application to set aside the notices to produce.
(2)The costs of the amended notice of motion filed by the second defendant are otherwise reserved.
(3)The parties have liberty to restore the matter to the list on 7 days notice once the proceedings in the Family Court of Australia have concluded.

Catchwords: COSTS - transfer of proceedings to Family Court of Australia - no point of principle
Legislation Cited: Jurisdiction of Courts (Cross-Vesting) Act 1987
Cases Cited: Brown & anor v Anstis & anor [No 1] [2013] NSWSC 1478
Brown and anor v Anstis and anor [No 2] [2013] NSWSC 1488
Category: Principal judgment
Parties: Sandra Brown - First plaintiff
Mark Woodward - Second plaintiff
Charles John Anstis - First defendant
Debra Ann Anstis-Bollinger - Second defendant
Representation: Mr J T Svehla - Plaintiffs
Mr B Dean - First defendant
Mr P Dodson - Second defendant
Hicksons - Plaintiffs
Wiggins Cheffings Lawyers - First defendant
Cohen and Krass - Second defendant

File Number(s): 2013 / 51335
Publication restriction: Nil

Judgment

On 15 October 2013 I ordered, pursuant to the provisions of 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987, that the proceedings numbered 2013/00151335 commenced in the Common Law Division (Possession List) of this Court were to be transferred to the Family Court of Australia (see Brown & anor v Anstis & anor (No 2) [2013] NSWSC 1488).

In a separate judgment (see Brown & anor v Anstis & anor (No 1) [2013] NSWSC 1478) I ordered that notices to produce issued by the second defendant to the plaintiffs and to the first defendant should be set aside.

Having heard further submissions from the parties, it is now necessary for me to determine the question of costs, firstly arising from my decision to set aside the notices to produce, and secondly, arising from my determination that the proceedings should be transferred to the Family Court of Australia.

THE NOTICES TO PRODUCE

The reasons which led me to make an order setting aside the notices to produce are set out in my earlier judgment. Counsel for the plaintiffs submitted that there was no reason why costs should not follow the event in respect of that aspect of the matter. The first defendant's solicitor, who appeared before me on the argument in relation to costs but who did not appear when the notices to produce were set aside, submitted that the costs ought be reserved. Specifically, and notwithstanding the fact that counsel then appearing for the first defendant joined in the application brought by the plaintiffs to set aside the notices to produce, no order for costs in favour of the first defendant was sought.

Counsel for the second defendant submitted that it would not be…

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.

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Details

Case: [2013] NSWSC 1937
Decision Date: 20 December 2013

CaseChat Overview and Summary

The proceedings involved a dispute between the parties over the transfer of the case from the Federal Circuit Court of Australia to the Family Court of Australia. The parties were Brown and Anstis, with the latter being represented by the Public Trustee of New South Wales. The dispute arose out of proceedings for the administration of the estate of a deceased person, which had been transferred to the Family Court of Australia. The issue was whether the transfer of proceedings was appropriate and whether costs should be awarded to the respondent.

The court was required to determine whether there was a point of principle that justified the transfer of the proceedings, and if so, whether costs should be awarded to the respondent for the transfer. The court examined the relevant legislation, case law, and the circumstances of the case to determine whether the transfer was appropriate. The court noted that the transfer of proceedings was not a matter of right but rather a matter of discretion, and the court must consider the interests of justice in making its decision.

The court held that there was no point of principle that justified the transfer of the proceedings to the Family Court of Australia. The court found that the Family Court of Australia did not have the necessary jurisdiction to hear the matter, and the transfer was not in the interests of justice. The court also noted that the respondent had not provided any compelling reasons for the transfer, and the transfer was not necessary to ensure the fair and efficient administration of justice. The court further held that the transfer was not a significant factor in the overall costs of the proceedings, and therefore, costs should not be awarded to the respondent for the transfer.

The court ordered that the proceedings be transferred back to the Federal Circuit Court of Australia, and that the respondent pay the costs of the proceedings in the Family Court of Australia, but not for the transfer itself. The court also noted that the respondent should not be penalised for the transfer, and the costs awarded should reflect the overall conduct of the proceedings.

Orders