Constantine v Saad
[2006] NSWSC 409
•8 May 2006
CITATION: Constantine v Saad [2006] NSWSC 409 HEARING DATE(S): 8 May 2006
JUDGMENT DATE :
8 May 2006JURISDICTION: Equity JUDGMENT OF: Hamilton J DECISION: Proceedings transferred to Family Court of Australia. CATCHWORDS: PROCEDURE [24] - Courts and judges generally – Courts - Concurrent jurisdiction of different courts - Transfer of proceedings under cross vesting legislation - In general. LEGISLATION CITED: Family Law Act 1975 s 4(1) CASES CITED: Foley v Farquharson (2003) 30 Fam LR 603
In the Marriage of Warby (2001) 28 Fam LR 443
The Queen v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504PARTIES: Daisy Constantine (P)
Anthony Saad (D)FILE NUMBER(S): SC 2634/06 COUNSEL: B C Kasep (P)
S M Christie (D)SOLICITORS: Truman Hoyle (P)
Watts McCray (D)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
MONDAY, 8 MAY 2006
2634/06
DAISY CONSTANTINE v ANTHONY SAAD
JUDGMENT
1 HIS HONOUR: In these proceedings the originating process is an amended summons which claims a variety of relief concerning a partnership. The partners are husband and wife and all the assets of the partnership belong to those partners.
2 Among the relief sought by the prayers of the summons are a declaration of dissolution of the partnership and an order for its winding up. On the other hand, equally included are prayers for the disposition of assets of the partnership (and, therefore, of the partners) in the interim and the use by one of the partners of a name similar to that of the partnership for trading purposes. The complicating factor is that there are proceedings between the same parties pending in the Family Court of Australia; those include proceedings for settlement of property. What is more, interlocutory orders were made by consent by the Judicial Registrar of the Family Court as recently as 3 May 2006 as to dealings with the partnership property and income pending determination of the family law proceedings.
3 Mr Kasep, of counsel for the plaintiff wife, submits that the proceedings in this Court are not and could not be characterised as a matrimonial cause, nor are they part of a single justiciable controversy, to employ the term used in the Full Court of the Family Court in In the Marriage of Warby (2001) 28 Fam LR 443. There is, therefore, no basis or justification for transferring the present proceedings or any part of them to the Family Court.
4 That, however, is what is sought by notice of motion on behalf of the defendant husband. It is contended by Miss Christie, of counsel on his behalf, that the proceedings are or contain a matrimonial cause within the meaning of the Family Law Act and because the Family Court is already dealing with the interlocutory regime in respect of these very assets, it is appropriate that the matter go back to the Family Court, so that the interlocutory skirmishing may take place in only one court rather than two. She says that the Family Court would have accrued jurisdiction to deal even with the ultimate issues of winding up and the taking of accounts under the doctrine enunciated in the Full Court in In the Marriage of Warby supra, despite the decision of the High Court in The Queen v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504. In any event, the Family Court should certainly deal with the whole of the interlocutory regime at this stage.
5 It should be noted that while the High Court, in Beaumont supra, denied the Family Court, under the legislative regime in effect at that time, jurisdiction to grant final relief by way of dissolution and accounts, it was said that the Family Court undoubtedly had jurisdiction to deal with the interests of the partners in the partnership and its assets and to appoint a receiver or to take an account of their property as partners as a step towards making an order for a settlement or transfer of property upon the dissolution of marriage. For dealings by a State Supreme Court with a similar problem after Warby, see the decision of Mackenzie J in the Supreme Court of Queensland in Foley v Farquharson (2003) 30 Fam LR 603.
6 The view that I have come to is that these proceedings constitute or contain a matrimonial cause within either or both of paragraphs (ca) and (f) of the definition of matrimonial cause in s 4(1) of the Family Law Act 1975. It seems to me, so far as convenience is in question, that it is highly desirable that the interlocutory stages of the matter, which is what we are at present concerned with, are dealt with by one court rather than two and that that Court should be the Family Court, which has already and quite recently made orders concerning the interim arrangements as to the parties’ property, including their property held through this partnership.
7 I should add at this point that this is a case where the partnership was entered into and conducted during the marriage, that the spouses remain the only partners in it and that the disagreement in the partnership appears to coincide with and to flow from the breakdown of the marriage.
8 In the circumstances, I propose to order that these proceedings be transferred to the Family Court. If it is ultimately found that there is difficulty in the Family Court making any final orders for the disposition of the partnership or the proceedings are complicated by the joinder of outside parties, the Family Court will, of course, if it feels it necessary, be at liberty to transfer the proceedings back to this Court at that later stage, although that hopefully will not be necessary.
9 Upon the plaintiff by his counsel giving to the Court the usual undertaking as to damages, I continue the existing injunction up to and including 10 May 2006. I order that the proceedings be transferred to the Family Court of Australia, Sydney Registry. I note that the proceedings will be listed in the Family Court before Rose J at 9.30 am on 10 May 2006.
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