Gao v Perry

[2020] NSWCA 15

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gao v Perry [2020] NSWCA 15
Hearing dates:	11 February 2020
Decision date:	19 February 2020
Before:	Bell P at [1]; Leeming JA at [2]; Simpson AJA at [37].
Decision:	1. Proceeding transferred to Family Court of Australia.  2. Otherwise dismiss notice of motion filed 4 December 2020.
Catchwords:	COURTS - jurisdiction - proceedings between former de facto partners in Supreme Court concerning ownership of property – primary claim in equity – alternative claim under Family Law Act 1975 (Cth) – primary judge upholds claims in equity and makes contingent findings under Family Law Act – defendant files appeal confined to challenging orders based in equity – plaintiff/respondent files notice of contention based on Family Law Act contingent findings – whether appeal lay to Court of Appeal – whether even if appeal required to be instituted in Court of Appeal, notice of contention required its transfer to Family Court – prohibition on instituting and determining certain appeals in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7 construed and applied – appeal transferred to Family Court
Legislation Cited:	Conveyancing Act 1919 (NSW), s 66G Family Law Act 1975 (Cth), ss 90SM, 90UB Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Cases Cited:	Boensch v Pascoe [2016] NSWCA 191; 349 ALR 193 Corbett v Nguyen [2019] NSWCA 191 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Grace v Grace (2014) 85 NSWLR 688; [2014] NSWCA 86 Perry v Gao [2019] NSWSC 1022
Category:	Principal judgment
Parties:	Min Gao (Appellant; applicant on motion) Graham Perry (Respondent to appeal and to motion)
Representation:	Counsel: V Bedrossian (Ms Gao) B Zipser (Mr Perry) M G Sexton SC SG and E Jones (Attorney-General for NSW, written submissions as amicus)   Solicitors: WB Legal Pty Ltd (Ms Gao) Vaarzon-Morel (Mr Perry) Crown Solicitor’s Office (Attorney-General)
File Number(s):	2019/00253200
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2019] NSWSC 1022 Date of Decision: 2 August 2019 Before: Rein J File Number(s): 2017/106176

Judgment

1. BELL P: I agree with the reasons and orders proposed by Leeming JA.

2. LEEMING JA: In a pending appeal from the decision of a judge in the Equity Division, the appellant has filed a notice of motion seeking orders confirming that the Court of Appeal has jurisdiction or alternatively transferring the proceeding to the Family Court of Australia. The motion gives rise to a question of general application. For that reason, it was listed for hearing before a court comprising three Judges of Appeal.

3. The appellant served notice upon the Commonwealth and State Attorney-Generals, with the latter providing written submissions on whether the pending appeal was a “special federal matter” which might nonetheless be heard by this Court. However, that was neither party’s primary submission, nor was it supported by the Attorney-General. On the view I take, the point does not arise.

4. The background is relevantly in short…