Geron v Geron - [2018] VSC 582

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST

S CI 2018 01291

AVIEL GERON	Plaintiff
v
CHAIM GERON	First Defendant
and
LB GERON ENTERPRISES PTY LTD (ACN 619 424 289)	Second Defendant
and
ELIZABETH RUTH ANDREWS	Third Defendant
and
REGISTRAR OF TITLES	Fourth Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2018
DATE OF JUDGMENT:	9 October 2018
CASE MAY BE CITED AS:	Geron v Geron
MEDIUM NEUTRAL CITATION:	[2018] VSC 582

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JURISDICTION – Cross-vesting – Application to transfer proceeding to Family Court – Claim against property brought by third party to matrimonial proceedings – Interests of justice criterion – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Triaca	Waterson Legal
For the First and Second Defendants	Mr C Geron	Mr Chaim Geron
For the Third Defendant	Ms S Gory	Taussig Cherrie Fildes Lawyers

HIS HONOUR:

Introduction

The plaintiff, Mr Aviel Geron (‘Aviel’) and the first defendant, Mr Chaim Geron (‘Chaim’) are brothers. Chaim is the sole director and shareholder of the second defendant, LB Geron Enterprises Pty Ltd (‘Geron Enterprises’).

The third defendant, Ms Elizabeth Andrews (‘Elizabeth’), is married to Chaim, but they are separated. On 12 March 2018, Chaim commenced family law proceedings in the Federal Circuit Court of Australia seeking orders relating to the distribution of the matrimonial assets. That proceeding was subsequently transferred to the Family Court of Australia.

Aviel commenced this proceeding on 11 April 2018. It concerns a partnership agreement entered into by Aviel and Chaim in 2017 (‘the partnership’) for the purchase and development of real estate in Melbourne. Two properties were purchased; one in Elsternwick in Chaim’s name, the other in Moorabbin in the name of Geron Enterprises (‘the investment properties’). Aviel seeks orders providing for the dissolution of the partnership, the winding up of Geron Enterprises, declarations in respect of the beneficial ownership of the properties and the removal of caveats lodged on the properties by Elizabeth.

On 3 May 2018, Elizabeth filed a summons seeking an order that this proceeding be transferred to the Family Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (‘the Act’). This judgment is in relation to that application.

The fourth defendant, the Registrar of Titles, indicated in a letter to the Prothonotary that he did not intend to appear in the proceeding.

Factual background

The evidence before the Court in respect of the transfer application was not in dispute. Elizabeth relied on an affidavit by her solicitor, Chiara Giannini Bryan, affirmed on 22 May 2018. Aviel relied on affidavits affirmed by him on 10 April 2018 and 26 June 2018. By an affidavit affirmed on 13 June 2018, Chaim deposed that he agreed with Aviel’s affidavit dated 10 April 2018. Chaim also adopted and agreed with the submissions made by Aviel at the hearing of the transfer application.

Aviel is a businessman based in Guangzhou in China and is neither a…

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 Geron v Geron

Details

AGLC: Geron v Geron [2018] VSC 582
Case: [2018] VSC 582
Decision Date: 9 October 2018

CaseChat Overview and Summary

The parties in this case were Geron and Geron. The dispute centred around a claim against property brought by a third party to existing matrimonial proceedings. The Family Court was asked to consider whether the proceeding should be transferred to it under the cross-vesting jurisdiction provisions. The legal issues the court was required to decide involved the application of the "interests of justice" criterion in determining whether the proceeding should be transferred. The court needed to assess whether transferring the proceeding to the Family Court would serve the interests of justice.

The court found that the proceeding did not meet the threshold for transfer under the cross-vesting jurisdiction provisions. The primary focus of the proceeding was not the resolution of a family law dispute, but rather the resolution of a claim against property brought by a third party. The court concluded that the transfer of the proceeding would not serve the interests of justice, as it would not promote the efficient and effective resolution of the dispute. The court was also mindful of the need to avoid unnecessary duplication of proceedings and the potential for increased costs and delays.

The court dismissed the application to transfer the proceeding to the Family Court. The court found that the proceeding was more appropriately dealt with in the Supreme Court, where it had been originally commenced. The court's decision was based on a careful consideration of the "interests of justice" criterion and the specific circumstances of the case. The court did not make any further orders.

Orders