Grace v Grace

Case [2014] NSWCA 86


This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title: Grace v Grace
Medium Neutral Citation: [2014] NSWCA 86
Hearing Date(s): 3 March 2014
Decision Date: 03 March 2014
Before: McColl JA at [1];
Meagher JA at [2];
Barrett JA at [28]
Decision:

(1) Dismiss the appeal for want of jurisdiction.
(2) Appellants pay the respondents' costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - APPEAL - JURISDICTION - whether appeal within s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) - subject-matter of appeal includes proper exercise of discretion as to costs - underlying proceedings involved exercise by State Court of federal jurisdiction under the Family Law Act 1975 (Cth) - s 117 of Family Law Act 1975 confers and describes discretion as to costs - whether an appeal seeking relief by way of re-exercise of that costs discretion involves a matter arising under the Family Law Act 1975
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Family Law Act 1975 (Cth), ss 79, 79A, 94(1)(b)(ii), 117
Family Provision Act 1982 (NSW), s 7
Judiciary Act 1903 (Cth), s 79
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 4(1)(c), 7
Supreme Court Act 1970 (NSW), s 75A(10)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392
David Grace v Deborah Grace [2007] NSWSC 6
Grace v Grace (No 4) [2013] NSWSC 385
Hazeldell Ltd v Commonwealth [1924] HCA 36; 34 CLR 442
LNC Industries Ltd v BMW (Australia) Pty Ltd [1983] HCA 31; 151 CLR 575
R v Lewis (1988) 165 CLR 12
Willocks v Anderson [1971] HCA 28; 124 CLR 293
Young v Lalic [2006] NSWSC 18; 197 FLR 27
Zhang v Zemin [2010] NSWCA 255; 79 NSWLR 513
Category: Principal judgment
Parties: Deborah Sharon Grace (First Appellant)
Julienne Grace (Second Appellant)
Phoenix Rising Investments Pty Ltd (Third Appellant)
David Alexander Grace (First Respondent)
Nevilda Holdings Pty Ltd (Second Respondent)
Nevilda Investments Pty Ltd (Third Respondent)
Dutchie Pty Ltd (Fourth Respondent)
Representation
- Counsel: Counsel:
A Moses SC, D Stewart (Appellants)
DL Williams SC, SA Goodman (Respondents)
- Solicitors: Solicitors:
Clinch Long Letherbarrow (Appellants)
James Tuite & Associates (Respondents)
File Number(s): 2013/123747
Decision Under Appeal
- Court / Tribunal: Supreme Court
- Before: Brereton J
- Date of Decision:  28 March 2013
- Citation: Grace v Grace [2012]…

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AGLC
Grace v Grace [2014] NSWCA 86
Case
[2014] NSWCA 86
Decision Date

CaseChat Overview and Summary

In *Grace v Grace*, the appellants sought to appeal a decision of the primary judge concerning costs. The underlying proceedings involved the exercise of federal jurisdiction by a State Court under the *Family Law Act 1975* (Cth), specifically concerning the discretion conferred by section 117 of that Act regarding costs. The appeal was heard by McColl, Meagher and Barrett JJA of the Court of Appeal of the Supreme Court of New South Wales.

The central legal issue before the Court of Appeal was whether the appeal fell within the jurisdiction conferred by section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth). This required the court to determine whether an appeal seeking the re-exercise of a costs discretion, which itself arose under the *Family Law Act 1975*, constituted a "matter arising under" that Act for the purposes of the cross-vesting legislation.

The Court of Appeal held that the appeal was not a matter arising under the *Family Law Act 1975*. It reasoned that while the original costs discretion was conferred by that Act, the appeal itself, concerning the exercise of that discretion, did not engage the substantive provisions of the *Family Law Act*. Therefore, section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* did not confer jurisdiction on the Court of Appeal to hear the appeal.

Consequently, the Court of Appeal ordered that the appeal be dismissed for want of jurisdiction, and the appellants were ordered to pay the respondents' costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the appeal for want of jurisdiction.

(2) Appellants pay the respondents' costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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