Douglas v Kik; Douglas v Kekatos - [2020] NSWSC 1734

Supreme Court

New South Wales

Medium Neutral Citation: Douglas v Kik; Douglas v Kekatos [2020] NSWSC 1734
Hearing dates: 13 August 2020
Date of orders: 3 December 2020
Decision date: 03 December 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
The Court makes the following orders:
(1)   Motion of 31 May 2019 of Ms Janina Kik and Mr David Anthony James seeking cross-vesting orders be dismissed;
(2)   The first cross-claim in proceedings 2016/00103090, being proceedings in which Ms Janina Kik and Mr David Anthony James seek damages against Ms Trudy Douglas, be heard together with proceedings 2020/00219354 commenced by Ms Trudy Douglas, seeking orders against Mr Jim Kekatos. The evidence in this Court in matter number 2020/00219354 and matter number 2016/00103090 be evidence in each other proceedings.
(3)   The proceedings in this court be expedited and subject to special case management by Rothman J. The Supreme Court proceedings referred to above are listed for Directions before Rothman J on Friday, 4 December 2020 at 9:30 AM.
(4)   The costs of and incidental to the motions shall be costs in the substantive proceedings to which they relate.
(5)   Leave is reserved to any party to apply for any special or different order as to costs which shall be made within three days of the date of this judgment by short written submission. Any party affected by any such application may reply to the said application by short written submission within three days of the receipt of the application. Any such application will be dealt with on the papers.

Catchwords:
CIVIL PROCEDURE – Cross-vesting – Application to transfer to Family Court of Australia – Relevant factors – 2 separate proceedings in Supreme Court – possibly of inconsistent findings – relevant factors – avoidance of multiplicity of proceedings – application refused – proceedings in this Court to be heard together and expedited.

Legislation Cited:
Civil Procedure Act2005 (NSW), s 99
Family Law Act1975 (Cth), ss 72, 74, 75, 78, 79, 90AC, 90AE
Jurisdiction of Court (Cross-vesting) Act 1987 (NSW), s 5

Cases Cited:
Evans Deakin Industries Pty Ltd t/as EDI RAIL v AMACA Pty Limited (Formerly James Hardie & Coy Pty Ltd) [2020] NSWSC 149
Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27

Category: Procedural and other rulings
Parties:
Douglas v Kik (2016/103090):

Janina Kik & David Anthony James (First & Second Cross-Claimants; Applicants on the Motion)
Trudy Douglas (First Cross-Defendant; Respondent to the Motion)

Douglas v Kekatos (2020/219354):
Trudy Douglas (Plaintiff)
Jim Kekatos t/as Kekatos Lawyers (Defendant)
Representation:
Douglas v Kik (2016/103090):

R. Allsop (Applicants)
S. Levitt (Respondent)

Douglas v Kekatos (2020/219354):
S. Levitt (Plaintiff)
D. Lloyd (Defendant )

File Number(s): 2016/103090; 2020/219354

Judgment

HIS HONOUR: The issue before the Court is an application for cross-vesting proceedings in this Court to the Family Court of Australia. By Motion, notice of which was filed on 31 May 2019, the first and second defendants, who are also the cross-claimants (hereinafter "the applicants"), Ms Janina Kik and Mr…

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: [2020] NSWSC 1734
Decision Date: 03 December 2020

CaseChat Overview and Summary

The applicants, Douglas and Douglas, sought to transfer two separate proceedings to the Family Court of Australia from the Supreme Court of New South Wales. The proceedings involved complex family law matters, including issues of custody, property settlement, and spousal maintenance. The Supreme Court was asked to consider whether the transfer was appropriate under the cross-vesting jurisdiction provisions.

The court had to determine if the proceedings should be transferred to the Family Court of Australia based on the relevant factors outlined in the cross-vesting legislation. Key factors included the nature of the proceedings, the need for uniformity in family law decisions, and the avoidance of multiplicity of proceedings. The court also needed to consider whether there was a risk of inconsistent findings if the cases were heard separately.

The court found that while there were significant family law issues at stake, the proceedings should not be transferred to the Family Court of Australia. The court emphasised the importance of avoiding multiplicity of proceedings and ensuring uniformity in family law decisions. However, the court deemed it appropriate to hear the proceedings together in the Supreme Court to expedite the resolution of the matters. The court concluded that maintaining the proceedings in the Supreme Court would be more efficient and would not result in inconsistent findings.

The court refused the application to transfer the proceedings to the Family Court of Australia. Instead, it ordered that the proceedings be heard together in the Supreme Court and expedited to ensure a timely resolution of the family law issues.

Orders