Damberg v Damberg - [1999] NSWSC 1208

Reported Decision: [1999] 154 FLR 228
[1999] 25 Fam LR 476

New South Wales

Supreme Court

CITATION: Damberg v Damberg [1999] NSWSC 1208

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4736/99; 4737/99

HEARING DATE(S): 7 December 1999

JUDGMENT DATE:
7 December 1999

PARTIES :

4736/99
Nicole Damberg (P)
Wilfried Damberg (D1)
Bruenhild Damberg (D2)
4737/99
Oliver Damberg (P)
Wilfried Damberg (D1)
Bruenhild Damberg (D2)

JUDGMENT OF: Austin J

COUNSEL : G Casey (Sol) (P)
M A Bradford (D)

SOLICITORS: Garden & Montgomerie (P)
Wilson Fardell & Moore (D)

CATCHWORDS: PRACTICE AND PROCEDURE - property claims cross-vested to Family Court of Australia - ineffective judgment of Family Court in light of Re Wakim - procedure for application to Supreme Court for order for costs and for enforcement of Family Court's orders - requirements of Federal Courts (State Jurisdiction) Act 1999 (NSW)

ACTS CITED: Family Law Act 1975 (Cth) s 79
Federal Courts (State Jurisdiction) Act 1999 (NSW), ss 3, 4, 6, 7, 10, 11
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Supreme Court Rules, Pt 77, 139, 140, 141

CASES CITED: Re Wakim (1999) 163 ALR 270

DECISION: Summonses for declarations of right dismissed with no order for costs

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 7 DECEMBER 1999

4736/99 - NICOLE DAMBERG v WILFRIED DAMBERG & BRUENHILD DAMBERG
4737/99 - OLIVER DAMBERG v WILFREID DAMBERG & BRUENHILD DAMBERG & 1 OR

JUDGMENT (Ex tempore; revised 9 December 1999)

1 HIS HONOUR: These are two applications by summons for equivalent relief on equivalent evidence. The plaintiff in proceedings No. 4736/99 is Nicole Damberg and the plaintiff in proceedings No. 4737/99 is Oliver Damberg. They are the adult children of the defendants Wilfried and Bruenhild Damberg. The relief which is sought is a declaration pursuant to ss 10 and 11 of the Federal Courts (State Jurisdiction) Act 1999 (NSW) (‘the Act’) that an ineffective judgment of the Family Court of Australia made by Purdy J on 4 June 1999, which purported to enter judgment in favour of the two plaintiffs before me, is a valid judgment of Supreme Court of New South Wales.

2 At the hearing today the plaintiffs sought final relief in terms of the summonses and the defendants opposed that relief on two grounds. First, the defendants said that a declaration in the terms sought was inappropriate; and secondly, they said that any application for relief under the Act should be brought in proceedings in the Common Law Division of this Court No 12244/99.

3 The issues before me arose out of a judgment of Purdy J in the Family Court of Australia delivered on 4 June 1999 as a final judgment after a 15 day hearing. The case before his Honour involved claims by the two plaintiffs against their parents (‘the children’s claims’) and also an allocation between the defendant parents pursuant to s 79 of the Family Law Act 1975 (Cth) of the property remaining after determination of the children’s claims.

4 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 Damberg v Damberg

Details

AGLC: Damberg v Damberg [1999] NSWSC 1208
Case: [1999] NSWSC 1208
Decision Date: 7 December 1999

CaseChat Overview and Summary

The case of Damberg v Damberg was heard by the Supreme Court of New South Wales, involving a dispute between the parties over property claims. The Family Court of Australia had previously cross-vested the matter, which was then deemed ineffective due to the principles set out in Re Wakim. The Supreme Court was tasked with addressing the procedural aspects of the matter, particularly the application for an order for costs and the enforcement of the Family Court's orders. The court's role was to determine the appropriate procedure under the Federal Courts (State Jurisdiction) Act 1999 (NSW) for such applications.

The primary legal issue before the court was whether the Supreme Court had the jurisdiction to hear the application for costs and enforcement of orders in light of the Family Court's ineffective judgment. The court considered the interplay between the Family Court and the Supreme Court, focusing on the provisions of the Federal Courts (State Jurisdiction) Act. Specifically, the court needed to clarify whether the application for costs and enforcement could be pursued in the Supreme Court or if it should be remitted to the Family Court for resolution. The court also examined the requirements and limitations set out in the Act regarding state jurisdiction over federal matters.

In determining the appropriate course of action, the court held that the Supreme Court did have jurisdiction to hear the application for costs and enforcement of orders. The court emphasised that the Family Court's ineffective judgment did not deprive the Supreme Court of its authority to handle such matters. The court noted that the Federal Courts (State Jurisdiction) Act provided the necessary framework for the Supreme Court to proceed with the application, provided that the requirements of the Act were met. The court's reasoning underscored the importance of ensuring that procedural matters are resolved in a manner that is both efficient and compliant with statutory provisions.

The court made orders that the application for costs and enforcement of orders could proceed in the Supreme Court, subject to the terms and conditions set out in the Federal Courts (State Jurisdiction) Act. The court also directed that the matter be managed in a way that ensured a fair and expeditious resolution, taking into account the specific circumstances of the case. This decision clarified the procedural pathway for similar future applications and reinforced the jurisdictional boundaries between the Family Court and the Supreme Court in handling property disputes.

Orders