Elford v Minty (No. 2) - [2017] NSWSC 1643

Supreme Court

New South Wales

Case Name:	Elford v Minty (No. 2)
Medium Neutral Citation:	[2017] NSWSC 1643
Hearing Date(s):	29 November 2017
Date of Orders:	29 November 2017
Decision Date:	29 November 2017
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Proceedings transferred to Family Court of Australia. But stay on orders until referees report received and considered by the Court. Respondent ordered to pay applicant’s costs of the application to transfer.
Catchwords:	CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Relevant factors – where inappropriate for issues in proceedings to be determined by separate courts - where issues in dispute include whether there was a partnership or a joint venture and whether or not there was a de facto relationship between the alleged joint-venture parties – strong inter-relationship of issues. CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts –where Supreme Court and Family Court of Australia have jurisdiction to determine issues in proceedings – consideration of jurisdiction conferred as described in Jensen v Pearce [2013] NSWCA 247 – whether proceedings should be transferred to Family Court of Australia pursuant to Jurisdiction of Courts (Cross-vesting) Act, s 5(1)(b).
Legislation Cited:	Commonwealth Powers (De Facto Relationships) Act 2003 Family Law Act 1975 (Cth), s 90SM Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Cases Cited:	Elford v Minty [2017] NSWSC 1455 Jensen v Pearce [2013] NSWCA 247
Category:	Consequential orders (other than Costs)
Parties:	Counsel: Plaintiff/ First Cross-defendant/Respondent and Second Cross-defendant: S.A. Wells First Defendant/Applicant:T. Boyle Solicitors Plaintiffs/ First Cross-defendants/Respondent and Second Cross-defendant: Hedges Bhatty First Defendant/Applicant: John de Mestre & Co Pty Ltd
Representation:	Counsel: Plaintiff/ First Cross-defendant/Respondent and Second Cross-defendant: S.A. Wells First Defendant/Applicant: T. Boyle Solicitors Plaintiffs/ First Cross-defendants/Respondent and Second Cross-defendant: Hedges Bhatty First Defendant/Applicant: John de Mestre & Co Pty Ltd
File Number(s):	(2014/371874)
Publication Restriction:	No

EX TEMPORE JUDGMENT

This is the Court's second judgment in these proceedings. In the Court's first judgment given on 27 October 2017, the Court made an order allowing the first defendant and the second cross-claimant, Mr Minty to withdraw the maximum sum of $50,000 from the funds of $375,000 paid into Court on 2 April 2015: Elford v Minty [2017] NSWSC 1455 (“the principal judgment”).
But the principal judgment did not deal with questions of costs, nor with the question whether the proceedings should be transferred to the Family Court of Australia. The Court granted liberty to apply in respect of both of those issues. This judgment deals with both.
This second judgment does not recite full history of these proceedings. That is already set out in the principal judgment. People, matters and events are referred to in both judgments in the same way. Both judgments should be read together.
Mr T. Boyle appeared for the first defendant, Mr Minty in the proceedings, and Mr S.A. Wells continues to appear for the plaintiff, Mr Elford. The Court further notes that in a communication with my Associate, the second and third defendants and the first…

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 Elford v Minty (No. 2)

Details

AGLC: Elford v Minty (No. 2) [2017] NSWSC 1643
Case: [2017] NSWSC 1643
Decision Date: 29 November 2017

CaseChat Overview and Summary

The parties in the case of Elford v Minty (No. 2) were engaged in a dispute concerning cross-vesting jurisdiction between the Supreme Court and the Family Court of Australia. The nature of the dispute involved determining whether there was a partnership or a joint venture, as well as whether there was a de facto relationship between the alleged joint-venture parties. The case was heard in the Supreme Court of Australia, which was tasked with deciding whether the proceedings should be transferred to the Family Court of Australia.

The legal issues that the court had to decide centred around the appropriate forum for the resolution of the dispute. Specifically, the court needed to assess whether the strong inter-relationship of the issues necessitated that they be determined by a single court. The court also had to consider the relevant factors for cross-vesting, as outlined in Jensen v Pearce, to determine whether the proceedings should be transferred to the Family Court of Australia under the Jurisdiction of Courts (Cross-vesting) Act.

In reaching its decision, the court emphasised the need for a unified approach to the resolution of issues that are closely intertwined. It held that the strong inter-relationship between the issues of partnership, joint venture, and de facto relationship warranted that they be determined by a single court. The court further noted that both the Supreme Court and the Family Court had jurisdiction to determine the issues in the proceedings. However, it concluded that the proceedings should be transferred to the Family Court of Australia pursuant to the relevant provisions of the Jurisdiction of Courts (Cross-vesting) Act.

In summary, the court's reasoning and outcome was that the proceedings should be transferred to the Family Court of Australia due to the close inter-relationship of the issues in dispute. The court considered the relevant factors for cross-vesting and determined that a unified approach was necessary to resolve the complex issues in the case. The final orders of the court were that the proceedings be transferred to the Family Court of Australia to be determined by that court.

Orders