Corbett v Nguyen - [2019] NSWCA 191

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Corbett v Nguyen [2019] NSWCA 191
Hearing dates: 5 August 2019
Decision date: 05 August 2019
Before: Basten JA
Decision:
(1) Order that the appeal in matter number 2018/147433 be dismissed.
(2) Order that the costs of the proceedings in this court abide the outcome of the appellate proceedings in the Full Court of the Family Court of Australia in relation to the matters the subject of the hearing in the Equity Division.
Catchwords:
CIVIL PROCEDURE – application to transfer appeal proceedings to Full Court of Family Court –proceedings involving a matter arising from an order made under the Family Law Act 1975 (Cth) – no power for the Court to transfer proceedings to the Family Court as the hearing had not commenced – proceedings dismissed
COSTS – appellant commenced proceedings in the incorrect court – respondent consented to transfer of proceedings on terms – both parties aware that the appeal not competent – no objection to competency – costs in accordance with terms of consent orders – costs to abide outcome of the appeal in the Family Court
Legislation Cited: Family Law Act 1975 (Cth), ss 77, 79
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Uniform Civil Procedure Rules 2005 (NSW), r 51.41
Cases Cited: Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Category: Procedural and other rulings
Parties: Avelina Corbett (Appellant)
Ai Nhon Nguyen (First Respondent)
James Edmund Corbett (Second Respondent)
Representation:
Counsel:
Mr P D Herzfeld/Mr D Reynolds (Appellant)
Mr R W Tregenza (First Respondent)
Solicitors:
Meridian Lawyers (Appellant)
Gerard Gooden (First Respondent)
Self-represented (Second Respondent)

File Number(s): 2018/147433
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity Division

Citation:

[2018] NSWSC 441

Date of Decision:

12 April 2018

Before:

Parker J

File Number(s):

2015/226458

Judgment

BASTEN JA: There is an issue before the Court as to the fate of the appeal in these proceedings which, on one view at least, involve potential interference with an order of the Family Court of Australia. The three parties to the proceedings in this Court are Avelina Corbett (appellant), her former husband, James Edmund Corbett (second respondent), and Mr Ai Nhon Nguyen (first respondent). There is a dispute as to whether the former matrimonial home transferred to Ms Corbett pursuant to consent orders in the Family Court of Australia is available as property of Mr Corbett, against which Mr Nguyen could enforce a debt owed to him by Mr Corbett.
Mr Nguyen commenced proceedings in the Equity Division, which sought in part to set aside orders made in the Family Court as part of the Corbetts’ property settlement under s 79 of the Family Law Act 1975 (Cth). The trial judge, Parker J, made such orders. On 10…

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 Corbett v Nguyen

Details

AGLC: Corbett v Nguyen [2019] NSWCA 191
Case: [2019] NSWCA 191
Decision Date: 05 August 2019

CaseChat Overview and Summary

Corbett (appellant) sought to transfer appeal proceedings to the Full Court of the Family Court of Australia. The proceedings concerned a matter arising from an order made under the *Family Law Act 1975* (Cth). Nguyen (respondent) consented to the transfer on terms, with both parties acknowledging the appeal was not competent in its current forum.

The central legal issue before the court was whether it possessed the power to transfer the appeal proceedings to the Full Court of the Family Court of Australia. This question arose in circumstances where the hearing of the appeal had not yet commenced.

The court determined that it lacked the power to transfer the proceedings to the Family Court because the hearing had not commenced. Consequently, the appeal was dismissed. The court also made orders regarding costs, stipulating that they would abide the outcome of the appellate proceedings in the Full Court of the Family Court of Australia concerning the matters heard in the Equity Division.

Orders

Orders of the court

(1) Order that the appeal in matter number 2018/147433 be dismissed.

(2) Order that the costs of the proceedings in this court abide the outcome of the appellate proceedings in the Full Court of the Family Court of Australia in relation to the matters the subject of the hearing in the Equity Division.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Corbett v Nguyen [2019] NSWCA 191
Hearing dates:	5 August 2019
Decision date:	05 August 2019
Before:	Basten JA
Decision:	(1) Order that the appeal in matter number 2018/147433 be dismissed. (2) Order that the costs of the proceedings in this court abide the outcome of the appellate proceedings in the Full Court of the Family Court of Australia in relation to the matters the subject of the hearing in the Equity Division.
Catchwords:	CIVIL PROCEDURE – application to transfer appeal proceedings to Full Court of Family Court –proceedings involving a matter arising from an order made under the Family Law Act 1975 (Cth) – no power for the Court to transfer proceedings to the Family Court as the hearing had not commenced – proceedings dismissed COSTS – appellant commenced proceedings in the incorrect court – respondent consented to transfer of proceedings on terms – both parties aware that the appeal not competent – no objection to competency – costs in accordance with terms of consent orders – costs to abide outcome of the appeal in the Family Court
Legislation Cited:	Family Law Act 1975 (Cth), ss 77, 79 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7 Uniform Civil Procedure Rules 2005 (NSW), r 51.41
Cases Cited:	Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Category:	Procedural and other rulings
Parties:	Avelina Corbett (Appellant) Ai Nhon Nguyen (First Respondent) James Edmund Corbett (Second Respondent)
Representation:	Counsel: Mr P D Herzfeld/Mr D Reynolds (Appellant) Mr R W Tregenza (First Respondent) Solicitors: Meridian Lawyers (Appellant) Gerard Gooden (First Respondent) Self-represented (Second Respondent)
File Number(s):	2018/147433
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2018] NSWSC 441 Date of Decision: 12 April 2018 Before: Parker J File Number(s): 2015/226458