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Lew v Priester

Lew v Priester

Case [2012] VSC 57 28 February 2012

Jurisdiction

Appeal

Issue Estoppel

Civil Litigation & Procedure

Family Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

LIST A
No. 7041 of 2011

SOLOMON LEW	First Plaintiff
ROSE LEW	Second Plaintiff
S LEW CUSTODIANS PTY LTD (ACN 006 259 954)	Third Plaintiff
v
ADAM PRIESTER & ORS (according to the Schedule attached)	Defendants

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JUDGE:	Pagone J
WHERE HELD:	Melbourne
DATE OF HEARING:	21-22 February 2012
DATE OF JUDGMENT:	28 February 2012
CASE MAY BE CITED AS:	Solomon Lew & Ors v Adam Priester & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 57

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PRACTICE AND PROCEDURE - Whether there was inappropriate joinder of defendants - Whether claims “in respect of or arising out of the same transaction or series of transactions” – Whether there is “some common question of law or fact” – Discretion of Court to permit joinder - Supreme Court (General Civil Procedure) Rules 2005 (Vic), rule 9.02.

JURISDICTION – Cross-vesting legislation – Whether transfer of proceedings from Supreme Court to Family Court “in the interests of justice” – Whether “proceeding” means the entire proceeding or a cause of action within it – Whether forum is “more appropriate” – Avoidance of duplication and inconsistency of findings - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr L Glick S.C. with Mr M Osborne	Schetzer Brott & Appel
For the First Defendant	Ms C Rome-Sievers	Foster Nicholson Jones Lawyers
For the Second Defendant	Mr R Macaw QC with Mr D Crennan	Nedovic & Co Lawyers
For the Third, Fourth and Fifth Defendants	Mr A Myers AO, QC with Mr P Corbett	Strongman & Crouch

HIS HONOUR:

Two defendants in this proceeding seek to have certain claims set aside, stayed or transferred to the Family Court of Australia. Their applications arise in proceedings in which the plaintiffs seek declaratory orders that three other defendants (who do not challenge the proceedings) do not have beneficial interests in certain loan accounts and that they otherwise hold any beneficial interests in those accounts on behalf of the first and second plaintiffs. The plaintiffs issued their proceeding on 22 December 2011 which was first listed for directions on 3 February 2012. At that hearing counsel for two defendants indicated that the competency of the proceedings would be challenged and that they would otherwise seek to have them cross-vested to the Family Court. Directions were made on that occasion for any summons by those defendants to be heard on 20 February 2012 and no other orders were made for the filing of defences or other interlocutory processes pending the issue of the proposed summons and their determination. The only formal pleading in the proceeding thus far is the plaintiffs’ statement of claim.

The issues for present determination arise in the broader context of matrimonial disputes between four of the defendants. The first defendant (“Mr Adam Priester”) is the former husband of the fourth defendant (“Ms Jacqueline Lew”), and the second defendant (“Ms Sarah Nowoweiski”) is the former wife…

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 Lew v Priester

Details

AGLC: Solomon Lew & Ors v Adam Priester & Ors [2012] VSC 57
Case: [2012] VSC 57
Decision Date: 28 February 2012

CaseChat Overview and Summary

The matter of Lew v Priester before the court involved a dispute over the appropriateness of the joinder of defendants and the subsequent transfer of proceedings from the Supreme Court to the Family Court. The primary issue was whether the claims were in respect of or arising out of the same transaction or series of transactions and whether there was a common question of law or fact that warranted the joinder. Additionally, the court was required to determine if the transfer of the proceedings was in the interests of justice under the cross-vesting legislation, considering whether the forum was more appropriate to avoid duplication and inconsistency of findings.

The court analysed the requirements under the Supreme Court (General Civil Procedure) Rules 2005 (Vic), rule 9.02, and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5. It was established that the claims involved a common factual matrix and shared legal issues, thereby satisfying the criteria for joinder. Furthermore, the court examined whether the transfer of proceedings was warranted to streamline the litigation process, reduce costs, and avoid potential inconsistencies between decisions made in different courts.

The court concluded that the claims indeed shared a common factual matrix and legal issues, thus justifying the joinder of defendants. It was also determined that the transfer of proceedings to the Family Court was in the interests of justice, as it would provide a more appropriate forum for resolving the matters at hand, thereby avoiding duplication and ensuring consistency of findings. Consequently, the court exercised its discretion to permit the joinder and ordered the transfer of the proceedings to the Family Court.

Orders