Burman v Zillman - [2017] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation: Burman v Zillman [2017] NSWSC 229
Hearing dates: 8 March 2017
Date of orders: 08 March 2017
Decision date: 08 March 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Proceedings transferred to the Family Court of Australia.

Catchwords: PRACTICE AND PROCEDURE – transfer of proceedings – application to transfer proceedings to Family Court of Australia – cross-vesting legislation – whether more appropriate for Family Court to determine proceedings – whether Family Court would have accrued jurisdiction to determine the claims made in the proceedings – whether the interests of justice served by transfer– proceedings transferred
Legislation Cited: Contracts Review Act 1980 (NSW)
Family Law Act 1975 (Cth), ss 31, 79
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5
Cases Cited: Valceski v Valceski (2007) 70 NSWLR 36
Vaughan v Frost [2010] NSWSC 492
Category: Principal judgment
Parties: Brian Carey Burman (First Plaintiff)
Isdell Katherine Burman (Second Plaintiff)
Matthew Lange Zillman (First Defendant)
Emma Carey Zillman (Second Defendant)
Homepath Pty Ltd (Third Defendant)
Representation:
Counsel:
F C Corsaro SC with M Auld (Plaintiff/Respondents)
D Neggo (First Defendant/Applicant)
Solicitors:
Chambers Russell Lawyers (Plaintiffs)
Watson Mangioni Lawyers (First Defendant)

File Number(s): 2016/289586
Publication restriction: None

Judgment – EX TEMPORE

These proceedings were commenced by Statement of Claim filed on 27 September 2016. The plaintiffs seek monetary judgments against Matthew Zillman and their daughter, Emma Zillman, for money claimed to be owing under a loan, and an order for the sale of a property in Turramurra, over which the plaintiffs hold an unregistered mortgage. The plaintiffs assert that, under the terms of the mortgage, the principal sum (and interest) is due and payable. They assert that a “repayment date” has arisen because Matthew Zillman and Emma Zillman, who are married to each other, have separated and continuously lived apart for at least 12 months.
Matthew Zillman has filed a Defence in which he denies that the principal sum (and interest) is thus due and payable. He further asserts that the principal sum has been repaid and, in the alternative, says that certain provisions of the loan agreement are void or unenforceable as penalties or due to uncertainty. He also filed a cross-claim, in which relief under the Contracts Review Act1980 (NSW) is sought to declare void, in part, certain provisions of the loan agreement, and to vary certain provisions of the loan agreement.
It seems that Emma Zillman does not seek to defend the proceedings.
In a Reply filed by the plaintiffs they assert that certain payments made to them by Emma Zillman were not repayments of the loan but were rather voluntary returns of dividends and, effectively, gifts to the plaintiffs.
By a Notice of Motion filed on 2 December 2016, Matthew Zillman seeks an order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) that the proceedings be transferred to the Family Court of Australia, Sydney Registry.
On 1 September 2016, shortly prior to the commencement of these proceedings,…

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 Burman v Zillman

Details

AGLC: Burman v Zillman [2017] NSWSC 229
Case: [2017] NSWSC 229
Decision Date: 08 March 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Burman v Zillman involved a dispute between the two parties regarding the transfer of proceedings from the Federal Court to the Family Court of Australia. The matter arose out of claims related to family law issues, which included disputes concerning the care and custody of children, as well as financial matters related to the breakdown of a de facto relationship. The applicant, Burman, sought the transfer of the proceedings to the Family Court on the basis that it was more appropriate for that court to determine the claims due to its specialised jurisdiction in family law matters.

The legal issues before the court were whether the Family Court had accrued jurisdiction to determine the claims made in the proceedings, whether it was more appropriate for the Family Court to determine the proceedings under the cross-vesting legislation, and whether transferring the proceedings would serve the interests of justice. The court had to consider the nature of the claims, the stage of the proceedings, and the potential efficiencies and expertise of the Family Court in handling such matters. Additionally, the court examined whether the transfer would cause any undue delay or prejudice to the parties involved.

The court found that the Family Court would indeed have jurisdiction to determine the claims, given the nature of the disputes and the applicable legislation. It further concluded that the Family Court was the more appropriate forum to hear the proceedings due to its specialised expertise and the potential for a more efficient resolution of the issues. The court determined that transferring the proceedings would serve the interests of justice by ensuring a more appropriate and potentially expeditious resolution of the family law matters at hand. Consequently, the court ordered the transfer of the proceedings to the Family Court of Australia.

Orders