Coric v Grotto; Nelson v Grotto - [2007] NSWSC 1080

CITATION: Coric v Grotto & Ors; Nelson v Grotto & Ors; Estate of Late F.A. Grotto & 2 Ors [2007] NSWSC 1080

HEARING DATE(S): 25/09/2007

JUDGMENT DATE :
25 September 2007

JURISDICTION: Equity

JUDGMENT OF: Bryson AJ at 1

DECISION: 1) Order pursuant to s51(1) of the Supreme Court Act 1970 that the appeal proceedings be removed into the Court of Appeal; 2) I direct that the defendants make an application to the Registrar of the Court of Appeal for directions relating to the further conduct of the appeal proceedings including conduct of an application for leave to appeal; 3) I order that the costs of the proceedings before me follow and be paid in accordance with any order for costs to be made by the Court of Appeal upon the application for leave to appeal or on any appeal; 4) Of my own motion I order pursuant to s26 of the Civil Procedure Act 2005 that the whole of the proceedings be referred to mediation by a mediator; 5) I reserve to each party leave to apply to me on 2 days’ notice for directions in detail relating to the appointment of a mediator and the conduct of mediation; 6) I order that the plaintiff has leave to file amended summons so as to join as an additional defendant Boyeli Pty Ltd and to amend the relief accordingly; 7) I direct that the amended summons be filed within 10 days; 8) Costs of the amendment are defendants’ costs in the proceedings.

CATCHWORDS: APPEAL – Practice and procedure – Appeal from decision of Associate Judge not to grant summary judgment in proceedings under the Family Provision Act 1982 (NSW) – Whether appeal lies to single judge of a Division of the Supreme Court or to the Court of Appeal – Whether motion in relation to summary judgment constitutes proceedings under the Family Provision Act or Pt 13 Uniform Civil Procedure Rules 2005 (NSW) – Pt 60 r 17 Supreme Court Rules 1970 (NSW), considered

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW) s20
Supreme Court Act 1970 (NSW) s101(2)(e)
Supreme Court Rules 1970 (NSW) Pt 60 r 17
Uniform Civil Procedure Rules 2005 (NSW) Pts 13, 49

CASES CITED: Wickstead v Browne (1992) 30 NSWLR 1
Gorman v Gorman [2003] NSWSC 647

PARTIES: 6189/06
Fiona Anne Coric - Pltf
Darren Anthony Grotto - 1st Dft
Graham Leslie Windridge - 2nd Dft
Graeme Lindsay Crampton - 3rd Dft
6190/06
Danielle Antoinette Nelson - Pltf
Darren Anthony Grotto - 1st Dft
Graham Leslie Windridge - 2nd Dft
Graeme Lindsay Crampton - 3rd Dft

FILE NUMBER(S): SC 6189/06 and 6190/06

COUNSEL: P.R. Sternberg - Pltfs/Respondents
M.S. Willmott SC and M.W. Sneddon - Defendants/Applicants

SOLICITORS: Elias Gates & Associates - Pltfs/Respondents
Coleman & Greig - Dfts/Applicants

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT FILE NUMBER(S): 6189/06 and 6190/06

LOWER COURT JUDICIAL OFFICER : Macready AsJ

LOWER COURT DATE OF DECISION: 15/06/2007

IN THE SUPREME COURT
OF NEW SOUTH…

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: [2007] NSWSC 1080
Decision Date: 25 September 2007

CaseChat Overview and Summary

The case involves two appeals, Coric v Grotto and Nelson v Grotto, heard by the Supreme Court of New South Wales. The appeals concern a decision made by an Associate Judge not to grant summary judgment in proceedings under the Family Provision Act 1982 (NSW). The central issue in the appeals is the appropriate forum for the appeal: whether it should be heard by a single judge of a Division of the Supreme Court or by the Court of Appeal. Additionally, the appeals question whether a motion related to summary judgment constitutes proceedings under the Family Provision Act or Part 13 of the Uniform Civil Procedure Rules 2005 (NSW).

The court considered the relevant provisions of Part 60 Rule 17 of the Supreme Court Rules 1970 (NSW). It examined the nature of the decision made by the Associate Judge, determining whether it was a decision in proceedings under the Family Provision Act or whether it fell within the scope of Part 13 of the Uniform Civil Procedure Rules. The court also assessed the availability of appeal to a single judge of a Division of the Supreme Court, as opposed to the Court of Appeal, and the implications of these findings for the procedural pathway of the appeals.

Ultimately, the court ruled that the appeal should be heard by the Court of Appeal. It found that the motion related to summary judgment constituted proceedings under the Family Provision Act, and therefore the appeal did not fall within the jurisdiction of a single judge of a Division of the Supreme Court. The court clarified the procedural steps required for such appeals and emphasised the importance of correctly characterising the nature of the decision being appealed.

The final orders were that the appeals be remitted to the Court of Appeal for further determination, ensuring that the procedural requirements and jurisdictional considerations were properly addressed.

Orders