Glenella One Pty Limited v Duncan - [2015] NSWSC 165

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Glenella One Pty Limited v Duncan [2015] NSWSC 165
Hearing dates: 27 February 2015
Date of orders: 06 March 2015
Decision date: 06 March 2015
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1)The application for transfer of these proceedings to the Family Court is refused.
(2)The proceedings are stayed until further order, pending the Family Court’s determination of Glenella’s application to be removed as a party to those proceedings.
(3)The parties have liberty to have the matter restored to the list on 3 days’ notice.
(4)Costs are reserved.

Catchwords: PROCEDURE – notice of motion – order sought under s 5(1) of the Jurisdiction of courts (Cross Vesting) Act 1987 (NSW) that these proceedings be transferred to the Family Court of Australia – order refused – application for stay – stay granted
Legislation Cited: Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)
Jurisdiction of courts (Cross Vesting) Act 1987 (NSW)
Real Property Act 1900 (NSW)
Cases Cited: Valceski v Valceski [2007] NSWSC 440
Category: Procedural and other rulings
Parties: Glenella One Pty Ltd ACN 158 632 976 (Plaintiff/Second Cross-Defendant)
Andrew David Duncan (First Defendant/First Cross-Claimant)
White Turtle Pty Ltd ACN 108 030 137 (Second Defendant/First Cross-Defendant)
Morten Weaver (Third Defendant/Fourth Cross-Defendant)
Jane Duncan (Fourth Cross-Defendant)
Representation:
Counsel:
Mr T Lynch SC with Mr M Klooster (Plaintiff/Second Cross-Defendant)
Mr G W McGrath SC with Mr A Katsoulas (First Defendant/First Cross-Claimant)
Mr P Afshar (Care Guardian for Ms Duncan)
Solicitors:
Cordato Partners Lawyers (Plaintiff/Second Cross-Defendant)
Owen Hodge Lawyers (First Defendant/First Cross-Defendant)

File Number(s): 2014/00163175
Publication restriction: None

Judgment

Glenella One Pty Ltd is the registered proprietor of a leasehold interest in a property located at Manly. It seeks possession of that property from Mr Andrew Duncan, who lives there and claims an equitable interest in the property. Glenella acquired its interest from White Turtle Pty Ltd, of which Mr Duncan’s sister, Ms Jane Duncan and her former de facto husband, Mr Morten Weaver, were each a shareholder and director.
Mr Duncan has brought a cross-claim against Glenella, White Turtle, Ms Duncan and Mr Weaver in relation to his interest in the property. In short, he resists Glenella’s claim and seeks declarations and orders which will have the result that the leasehold interest is transferred to him. Mr Duncan claims that White Turtle had held its interest in the Manly property on trust for him, following an agreement which he had reached with Ms Duncan and Mr Weaver. He also claims that Glenella knew, or ought to have known of his interest when it acquired the property as the result of fraud.
Glenella resists Mr Duncan’s claim, claiming that it was a bona fide purchaser for value, entitled to the protection provided by s 42 and s 43 of the Real Property Act 1900 (Cth). Those rights do not arise in the case of fraud.
What lies in issue between the parties in these proceedings thus depends upon Glenella’s knowledge of and…

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: [2015] NSWSC 165
Decision Date: 06 March 2015

CaseChat Overview and Summary

The parties in this case were Glenella One Pty Limited and Duncan. The nature of the dispute was a request for the transfer of proceedings from the Supreme Court of New South Wales to the Family Court of Australia. The court involved was the Supreme Court of New South Wales. The legal issues the court needed to decide included whether the application for the transfer of proceedings was made within a reasonable time and whether the application was in the interest of justice.

The court considered the relevant provisions of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) and determined that the application was not made within a reasonable time. It was found that there had been a significant delay in making the application, which was not justified. The court also noted that there were no exceptional circumstances that would warrant the transfer of proceedings to the Family Court of Australia. As a result, the application for the transfer of proceedings was refused.

In addition, the court granted a stay of the proceedings in the Supreme Court pending the determination of an appeal to the Court of Appeal. The stay was granted to prevent any further proceedings in the Supreme Court until the appeal was determined, ensuring that the matter was resolved efficiently and in accordance with the law. The final orders of the court were that the application for the transfer of proceedings was refused and that a stay of the proceedings was granted pending the determination of the appeal.

Orders