Johnstone v Cappetta

[2018] NSWDC 531

District Court

New South Wales

Medium Neutral Citation:

Johnstone v Cappetta [2018] NSWDC 531

Hearing dates:

12 March 2018

Date of orders:

12 March 2018

Decision date:

12 March 2018

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Order that the proceedings be dismissed.

(2)   Plaintiff pay the defendants' costs.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Non-appearance of plaintiff – Abuse of process - Lack of jurisdiction

Legislation Cited:

District Court Act 1973, s 44

Uniform Civil Procedure Rules 2005, r 29.7

Category:

Procedural rulings

Parties:

Cora Lara Johnstone (plaintiff)
Donato Cappetta (first defendant)
Maria Cappetta (second defendant)

Representation:

Solicitors:
Williamson Isabella Lawyers (defendants)

File Number(s):

2016/322576

Publication restriction:

None

Judgment

1. I propose to make orders dismissing the proceedings by reason of the absence of the plaintiff. I am satisfied that she was served at the physical address provided in her statement of claim, the postal address for service provided in her statement of claim, and repeatedly at the email address provided in her statement of claim, pursuant to r 29.7(4) of the Uniform Civil Procedure Rules 2005. The matter was adjourned previously in the absence of the plaintiff because of uncertainty about service.

2. I also take into account that the proceedings cover the same ground as proceedings currently in the Family Court of Australia, and so the proceedings appear to be an abuse of process as they constitute a second proceeding in respect of the same subject matter.

3. Thirdly, I note that the primary claim in the proceedings is for the compulsory transfer of property, said to have a value of $423,000 which, if commenced in the Supreme Court in February 1998, would have been statutorily assigned to the Equity Division of that Court and therefore is not within the jurisdiction of this Court under s 44 of the District Court Act 1973. The provisions of that Act which confer jurisdiction on this Court in equity proceedings do not extend to the transfer of a property of the value indicated in the statement of claim.

4. I also take into account the powers in Uniform Civil Procedure Rules 14.28 and 13.4.

5. For those reasons, I make the following orders:

1. Order that the proceedings be dismissed.

2. Plaintiff pay the defendants' costs.

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Decision last updated: 26 May 2021