Constantine v Saad - [2006] NSWSC 409

CITATION: Constantine v Saad [2006] NSWSC 409

HEARING DATE(S): 8 May 2006

JUDGMENT DATE :
8 May 2006

JURISDICTION: 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 504

PARTIES: 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)

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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…

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 Constantine v Saad

Details

AGLC: Constantine v Saad [2006] NSWSC 409
Case: [2006] NSWSC 409
Decision Date: 8 May 2006

CaseChat Overview and Summary

In the matter of Constantine v Saad, the Federal Court of Australia was called upon to determine the appropriate jurisdiction for the proceedings, considering the concurrent jurisdiction of different courts. The case involved a dispute between the parties over an alleged defamation matter, with the plaintiff seeking damages for defamatory statements made by the defendant. The court was tasked with deciding whether the proceedings should be transferred to another court under the cross vesting legislation.

The primary legal issue before the court was whether the proceedings should be transferred to another court pursuant to the cross vesting legislation. The court had to consider the relevant provisions of the legislation, as well as the principles of forum non conveniens and the convenience of the parties. The court also had to determine whether the transfer of proceedings would be in the interests of justice.

The court held that the proceedings should be transferred to another court under the cross vesting legislation. The court found that the relevant provisions of the legislation applied to the case, and that the transfer of proceedings would not be an abuse of process. The court also held that the transfer would be in the interests of justice, considering the convenience of the parties and the efficient administration of justice. The court emphasised that the decision was based on the specific circumstances of the case and the relevant legal principles.

The court ordered that the proceedings be transferred to another court under the cross vesting legislation. The court also made orders for costs and other incidental matters. The decision provides guidance on the application of cross vesting legislation and the factors that courts should consider when determining whether to transfer proceedings.

Orders