Liu v Jia

[2025] NSWSC 1218

Supreme Court

New South Wales

Medium Neutral Citation:

Liu v Jia [2025] NSWSC 1218

Hearing dates:

10 October 2025

Date of orders:

17 October 2025

Decision date:

17 October 2025

Jurisdiction:

Equity - Applications List

Before:

McGrath J

Decision:

Transfer of the proceedings to the Federal Circuit and Family Court of Australia

Catchwords:

CIVIL PROCEDURE – Cross-vesting – Transfer to Federal Circuit and Family Court of Australia – whether this court has jurisdiction to order the transfer – whether it is in the interests of justice to transfer the proceedings – balancing the interests of justice – HELD – proceedings transferred

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 57, 58

Family Law Act 1975 (Cth), ss 79, 79AA, 90SM, 90SMA

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth), ss 8, 51

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5

Statute Law (Miscellaneous Provisions) Act 2023 (NSW), sch 2.32

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 9.02

Uniform Civil Procedure Rules 2005 (NSW), r 17.3

Cases Cited:

Aspinall v Acqua Sports Pty Ltd [2018] NSWSC 706

BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61

Chan v Johnson [2014] NSWSC 1439

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55

Mendonca v Dooley & Associates Solicitors Pty Ltd [2016] NSWCA 144

Miric v Romanous [2021] NSWSC 805

Nicita v Nicita [2025] NSWSC 585

Pascoe atf the Bankrupt Estates of Peter Voukidis (deceased) and Kathy Voukidis v Voukidis [2025] NSWSC 398

Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

Sultan v Dabboussi [2024] NSWSC 683

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Valceski v Valceski (2007) NSWLR 36; [2007] NSWSC 440

Xue v Xue [2020] NSWSC 501

Yu v Wang [2021] NSWSC 1280

Zhang v Levingson [2023] NSWSC 1559

Category:

Procedural rulings

Parties:

Jian Liu (Applicant)
Songqing Liu (Respondent/Plaintiff)
TingTing Jia (Defendant)

Representation:

Counsel:
D Hartwell SC (Applicant)
D Barlin (Respondent/Plaintiff)
X Wang (Defendant)

Solicitors:
Tang Lawyers Australia (Applicant)
Rostron Carlyle Rojas Lawyers (Respondent/Plaintiff)
WG Lawyers (Defendant)

File Number(s):

2025/00241511

Publication restriction:

Nil

JUDGMENT

INTRODUCTION

1. In these proceedings, Jian Liu has applied by notice of motion filed 20 August 2025 for orders that:

1. he be joined as a party to these proceedings; and

2. these proceedings be transferred to the Federal Circuit and Family Court of Australia pursuant to s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (NSW Cross-Vesting Act); or

3. by way of alternative, that these proceedings be stayed.

2. For the reasons set out below, I have determined that:

1. Mr Liu is to be joined as the second defendant to these proceedings.

2. It is in the interests of justice to transfer these proceedings to the Federal Circuit and Family Court of Australia.

3. As a result, the question of whether I should stay these proceedings does not arise.

RELEVANT FACTS

4. The background circumstances to these proceedings are complex. However, it is not necessary for me the recount them in full as the issues to be determined for the purposes of this application are relatively narrow. Set out below as those factual matters which are relevant to the determination of the application.

5. These proceedings were commenced by the plaintiff, Songqing Liu, by way of summons filed 24 June 2025.

6. Ms Liu is a Chinese citizen who resides in China and does not speak or understand any English.

7. The defendant, Tingting Jia, is Ms Liu’s daughter. Ms Jia moved from China to Australia in January 2010 and has resided here ever since.

8. In around March 2010, Ms Jia met Mr Liu (no relation to Ms Liu), who she would later marry and share two children.

9. Ms Liu asserts that in 2013 she and her unnamed husband (Ms Jia’s father) offered to support Ms Jia financially, including by way of purchasing a property in which she and her new family (including Mr Liu) could reside.

10. In October 2013, a property situated in Campsie, New South Wales (Campsie property) was purchased for $815,000. Ms Jia was the purchaser on the contract and became the registered proprietor of the Campsie property.

11. In January 2014, each of Ms Liu and Ms Jia executed a two-page Deed of Loan Agreement dated 28 January 2014 in respect of the purchase of the Campsie property, with Ms Liu as “Lender” and Ms Jia as “Borrower”. On its face, the Loan Agreement essentially documents an interest-free and unsecured loan of $850,000 from Ms Liu to Ms Jia to purchase the Campsie property on terms which included that:

1. Ms Jia agrees to repay the principal upon transfer or sale of the Campsie property; and

2. if the market value of the Campsie property increased, the “value gained from the sale shall go to” Ms Liu.

12. Ms Jia and Mr Liu are now separated, although there is disagreement about precisely when that separation occurred. Their separation is the subject of proceedings currently before Division 2 of the Federal Circuit and Family Court of Australia, which were commenced on 23 December 2024 (FCFCA proceedings).

13. The essence of the FCFCA proceedings is that Mr Liu (as the applicant) seeks final orders that two properties (being the Campsie property and another property situated in Queensland) be sold and the proceeds of sale be divided 70/30 in his favour.

14. I will note here that the Campsie property was later used as security to purchase other property. Agreements are said to have been made about those arrangements as well, including in respect of rental income and the like, but it is not necessary for me to recount these for the purposes of this application.

15. The essence of Ms Liu’s case in these proceedings is that she and her husband agreed:

1. to provide the purchase price of the Campsie property;

2. that the Campsie property be registered in Ms Jia’s name solely; and

3. that the Campsie property was held by Ms Jia on trust for Ms Liu.

16. Ms Liu says that the arrangement to which Ms Jia agreed is not fully reflected within the terms of the Loan Agreement. It is the Loan Agreement and its alleged inadequacy that are the subject of these proceedings.

17. In these proceedings, Ms Liu seeks rectification in equity of the Loan Agreement, claiming the following relief in the summons:

(1)   Order that the document entitled “Deed of Loan Agreement” made as between Songqing Liu (“the Plaintiff”) and TingTing Jia (“the Defendant”) dated 28 January 2014 be rectified to:

(a)   Delete all references in the Document to the Plaintiff lending money to the Defendant for the purposes of the purchase pf (sic) 12A Nowra Street, Campsie in the State of New South Wales 2194 (“the Property”);

(b)   Ensure that the Document provides that the Defendant holds the property on trust and for the sole benefit of the Plaintiff;

(c)   Delete the term “the Lender” throughout the Document and replace it with the term “the Beneficiary”;

(d)   Delete the term “The Borrower” throughout the Document and replace it with the term “the Trustee”

(e)   Delete the Recitals to the Document;

(f)   Amend clause 1 of the Document so that it provides:

In November 2013, the Beneficiary provided to the Trustee AUD$850,000 for the purpose of the Trustee acquiring a property at 12A Nowra Street, Campsie, in the State of New South Wales 2194 Australia for the sole benefit of the Beneficiary.

(g)   Amend clause 2 of the Document so that it provides:

If the Trustee disposes 12A Nowra Street, Campsie NSW 2194 Australia, the Trustee is to pay the Beneficiary the net proceeds of sale of the said property.

(h)   Delete clause 3 of the Document.

(2)   Declaration that since the acquisition of the Property by the Defendant, on or around 29 November 2013, the Defendant has held the Property subject to a trust for the sole benefit of the Plaintiff.

(3)   Costs

18. In all material respects, Ms Jia agrees with Ms Liu’s version of events in that the essence of their arrangement was that the Campsie property was being held on trust by Ms Jia for Ms Liu. In other words, although Ms Jia is the defendant in these proceedings, she does not appear to be actively contesting them. This is confirmed by the notice to admit facts served 18 August 2025 by Ms Liu directed to Ms Jia’s intention to hold the Campsie property on trust for Ms Liu, and that there is no evidence that Ms Jia has disputed any of those facts.

19. Each of Ms Liu and Ms Jia do not oppose Mr Liu’s joinder to the proceedings. Ms Liu opposes both the transfer and stay of these proceedings. Ms Jia’s position is less clear in that she does not formally oppose the transfer of these proceedings but made submissions which on any view strongly advanced the argument that these proceedings should not be transferred.

20. Each of Mr Liu, Ms Liu and Ms Jia filed written submissions in advance of the hearing of the motion and each were represented at the hearing of the motion before me. The submissions made by each of Mr Liu and Ms Liu were expanded upon orally at that hearing.

ISSUE 1: JOINDER OF MR LIU AS A PARTY

21. Mr Liu has applied to be joined as a party to these proceedings. Each of Ms Liu and Ms Jia do not oppose that order. This is the first issue I must determine.

22. Rule 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevantly provides:

6.24 Court may join party if joinder proper or necessary

(1)   If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

23. Rule 6.27 of the UCPR provides:

6.27 Joinder on application of third party

A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant.

24. To cause the exercise of the court’s discretion in r 6.24(1) of the UCPR, the party seeking to be joined must satisfy one of the two limbs, being that the party “ought to have been joined” or that their joinder “is necessary to the determination of all matters in dispute” in the proceedings. The exercise of that discretion does not arise unless one of the two limbs of r 6.24(1) of the UCPR is satisfied: Burton v Babb [2020] NSWCA 331, Payne JA and Simpson AJA at [30]–[32] and [42].

25. Plainly, Mr Liu is a person who can make an application to be joined as a party to these proceedings in accordance with r 6.27 of the UCPR. In light of the fact that Mr Liu asserts an interest in the Campsie property and wishes to contest that Ms Liu has an interest in it, in accordance with r 6.24(1) of the UCPR, I consider that his joinder is necessary for the determination of all matters in dispute in the proceedings. I propose to make an order joining Mr Liu as the second defendant in these proceedings.

ISSUE 2: JURISDICTION TO TRANSFER THESE PROCEEDINGS

26. The second issue in the application before me is whether this court has the power to transfer these proceedings to Division 2 of the Federal Circuit and Family Court of Australia, being an argument raised by Ms Liu and Ms Jia.

Submissions of Ms Liu

27. Ms Liu submits that based on the proper construction of s 5(1) the NSW Cross-Vesting Act, this court has no power to transfer to these proceedings to Division 2 of the Federal Circuit and Family Court of Australia (the former Federal Circuit Court) for the following reasons:

1. Section 5(1) the NSW Cross-Vesting Act provides for the transfer of proceedings pending in this court to the Federal Court of Australia or the Federal Circuit and Family Court of Australia where, having regard to the matters in s 5(1)(b)(ii), this court considers it more appropriate that the proceedings be determined by the Federal Court or the Federal Circuit and Family Court of Australia.

2. Section 5 of the NSW Cross-Vesting Act was amended on 14 July 2023 pursuant to sch 2.32 of the Statute Law (Miscellaneous Provisions) Act 2023 (NSW) (2023 NSW Amendment). The Explanatory Note to the 2023 NSW Amendment explains that the amendment was made “to update the name of a court”. The court that was the subject of the amendment was the Family Court of Australia, which was previously referred to as the “Family Court” in the NSW Cross-Vesting Act without any mention of the Federal Circuit Court. The Family Court of Australia continued in existence as Division 1 of the Federal Circuit and Family Court of Australia: s 8(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCA Act).

3. For this reason, the reference to the “Federal Circuit and Family Court of Australia” in s 5(1) of the NSW Cross-Vesting Act ought to be read as Division 1 of the Federal Circuit and Family Court of Australia, which is consistent with the prior wording of s 5(1) of the NSW Cross-Vesting Act, which made no reference to the Federal Circuit Court, and the current wording of s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Commonwealth Cross-Vesting Act), which expressly provides for transfers from the Supreme Court of a State or Territory to the “Federal Circuit and Family Court of Australia (Division 1)” (formerly, the Family Court of Australia). Reference to Division 2 of the Federal Circuit and Family Court of Australia does not appear anywhere in s 5(1) of the Commonwealth Cross-Vesting Act and to read s 5(1) of the NSW Cross-Vesting Act as including a power to transfer to Division 2 of the Federal Circuit and Family Court of Australia would create an “unintentional disharmony” between the two jurisdictions.

4. The 2023 NSW Amendment (or, more specifically, the explanatory note which accompanied it) makes no mention of conferring any additional jurisdiction or power on this court to transfer proceedings to Division 2 of the Federal Circuit and Family Court of Australia.

5. Prior to the enactment of the FCFCA Act, it had been recognised that this court had no power to transfer proceedings to the Federal Circuit Court, citing Chan v Johnson [2014] NSWSC 1439, Brereton J at [3]; Mendonca v Dooley & Associates Solicitors Pty Ltd [2016] NSWCA 144, Simpson JA and Sackville AJA at [36]. Following the change in name from the Federal Circuit Court to Division 2 of the Federal Circuit and Family Court of Australia pursuant to s 8(2) of the FCFCA Act, and while s 5 of the NSW Cross-Vesting Act still referred to the “Family Court”, it was also held that this court had no power to transfer proceedings to Division 2 of the Federal Circuit and Family Court of Australia: Miric v Romanous [2021] NSWSC 805, Kunc J at [7]–[8]; Yu v Wang [2021] NSWSC 1280, Beech-Jones CJ at CL at [18].

6. Whilst there have since been cases in which judges of this court have purported to transfer proceedings to Division 2 of the Federal Circuit and Family Court of Australia, the jurisdiction to transfer to that court does not appear to have been the subject of submissions in those cases: Pascoe atf the Bankrupt Estates of Peter Voukidis (deceased) and Kathy Voukidis v Voukidis [2025] NSWSC 398, Chen J; Sultan v Dabboussi [2024] NSWSC 683, Williams J; Nicita v Nicita [2025] NSWSC 585, Brereton J.

7. In these circumstances, this court should find that it has no jurisdiction to transfer these proceedings to Division 2 of the Federal Circuit and Family Court of Australia.

Submissions of Ms Jia

28. Ms Jia submits that this court does not have the power to transfer these proceedings to Division 2 of the Federal Circuit and Family Court of Australia (formerly the Federal Circuit Court) for the same reasons as submitted by Ms Liu.

Submissions of Mr Liu

29. In response to the jurisdictional argument raised by each of Ms Liu and Ms Jia, Mr Liu submits that this court can transfer these proceedings to the Federal Circuit and Family Court of Australia, but it cannot compel their joinder to the FCFCA proceedings, nor can it assign them to a particular division within that court, consistent with the approach taken by this court recently in Nicita, Brereton J at [24]–[25]. Each of those concerns are matters for the Federal Circuit and Family Court of Australia and this construction is consistent with not only the wording of s 5(1) of the NSW Cross-Vesting Act (which has no divisional limitation on its face) but also the discretionary power of the Chief Justice of the Federal Circuit and Family Court of Australia to transfer proceedings between divisions either on application or by their own motion, citing s 51(2) of the FCFCA Act and r 9.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Mr Liu’s motion seeks only transfer to Federal Circuit and Family Court of Australia, not Division 2 specifically.

Legal principles

30. Section 5 of the NSW Cross-Vesting Act now relevantly provides as follows (emphasis added):

5   Transfer of proceedings

(1)   Where—

(a)   a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and

(b)   it appears to the Supreme Court that—

…

(ii)   having regard to—

(A)   whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Federal Circuit and Family Court of Australia,

(B)   the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and

(C)   the interests of justice,

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be,

…

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be.

…

(7)   A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own motion or on the application of the Attorney-General of the Commonwealth or of a State or Territory.

…

(9)   Nothing in this section confers on a court jurisdiction that the court would not otherwise have.

31. Section 5(1) of the NSW Cross-Vesting Act was amended on 14 July 2023 by the 2023 NSW Amendment. The effect of that amendment was to insert the “Federal Circuit and Family Court of Australia” in the place of what was previously referred to as the “Family Court”. The explanatory note to the 2023 NSW Amendment summarises the effect of that specific amendment in a single sentence as being “to update the name of a court”.

32. That amendment was made in light of s 8 of the FCFCA Act, which came into effect on 1 September 2021 and provides as follows:

Federal Circuit and Family Court of Australia

(1)   The federal court known immediately before the commencement day as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1).

(2)   The federal court known immediately before the commencement day as the Federal Circuit Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 2).

33. Amendments were also made to the Commonwealth Cross-Vesting Act by operation of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (2021 Commonwealth Amendment), which was assented to on 1 March 2021. Those amendments came into effect on 1 September 2021 and while they were similar in nature to those later made to the NSW Cross-Vesting Act, they were distinct in their form. In the Commonwealth Cross-Vesting Act, the former reference to the “Family Court” was replaced with reference to the “Federal Circuit and Family Court of Australia (Division 1)” consistent with s 8 of the FCFCA Act.

33. Section 5 of the Commonwealth Cross-Vesting Act now relevantly provides as follows (emphasis added):

5   Transfer of proceedings

(1)   Where:

(a)   a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court of a State or Territory (in this subsection referred to as the first court); and

(b)   it appears to the first court that:

(i)   the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

(ii)   having regard to:

(A)   whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross‑vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

(B)   the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross‑vesting of jurisdiction; and

(C)   the interests of justice;

it is more appropriate that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), as the case may be; or

(iii)   it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Federal Circuit and Family Court of Australia (Division 1);

the first court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia (Division 1), as the case may be.

35. As mentioned above, prior to the 2023 NSW Amendment, s 5(1) of the NSW Cross-Vesting Act referred to the transfer of proceedings from courts in this State to either the “Federal Court” or the “Family Court”; there was no mention of the Federal Circuit Court. Accordingly, the weight of authority of this court prior to the 2023 NSW Amendment is that this court had no power under s 5(1) of the NSW Cross-Vesting Act to transfer proceedings to the Federal Circuit Court: Chan, Brereton J at [3]; Mendonca, Simpson JA and Sackville AJA at [36].

36. During the period between the 2021 Commonwealth Amendment and the 2023 NSW Amendment, judges of this court held, consistent with earlier authority, that this court had no power to transfer proceedings to Division 2 of the Federal Circuit and Family Court of Australia: Miric, Kunc J at [7]–[8]; Yu, Beech-Jones CJ at CL at [18].

37. In Pascoe, Chen J, and in Sultan, Williams J, each of their Honours ordered that proceedings in this court be transferred to the Federal Circuit and Family Court of Australia (Division 2). I consider that the jurisdictional point which has been argued before me was not fully raised before their Honours in each case. Similarly, in Nicita, the jurisdictional point was not fully argued before Brereton J but I note that his Honour at [25] did not consider that there was power under s 5(1) of the NSW Cross-Vesting Act to order that proceedings be transferred from this court to a particular Division of the Federal Circuit and Family Court of Australia.

38. The interpretation of a statutory provision such as s 5 of the NSW Cross-Vesting Act involves the consideration of its text construed within its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ at [14]. The task of statutory construction begins and ends with the text considered in its context, which includes legislative history and extrinsic materials but the legislative history and extrinsic materials cannot replace the meaning of the statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, French CJ, Hayne, Crennan, Bell and Gageler JJ at [39].

Consideration

39. Applying that approach, I consider that this court does have the power to transfer proceedings to the Federal Circuit and Family Court of Australia based on the plain words used in s 5(1) of the NSW Cross-Vesting Act which refer to that court and not any particular Division of it. The purpose of the NSW Cross-Vesting Act is to facilitate the transfer of proceedings from this court to the Federal Court or the Federal Circuit and Family Court of Australia. There is no qualification to the words “Federal Circuit and Family Court of Australia” in the text of s 5(1) which limits the Division within the Federal Circuit and Family Court of Australia to which the proceedings may be transferred.

40. Reference to the legislative history of s 5 of the NSW Cross-Vesting Act, the amendment to it by the 2023 NSW Amendment and the explanatory memorandum to the 2023 NSW Amendment does not change the meaning of those plain words. Neither does the reference to the manner in which s 5 of the Commonwealth Cross-Vesting Act was amended by the 2021 Commonwealth Amendment to refer to the “Federal Circuit and Family Court of Australia (Division 1)”. I do not consider that it is a legitimate exercise in statutory construction to take the plain meaning of the words used in s 5 of the Commonwealth Cross-Vesting Act to give rise to a form of limitation on the plain meaning of the words used in s 5 of the NSW Cross-Vesting Act.

41. In my view, this court has power to transfer proceedings to the Federal Circuit and Family Court of Australia generally and then it is up to that court to exercise the powers it has to determine the Division within which any transferred proceedings are to be dealt with. In this regard, I agree with the following view expressed in Nicita by Brereton J at [25]:

It seems to me that s 5 of the Jurisdiction of Courts (Cross-vesting) Act empowers, and in this case compels, me to transfer the proceedings to the Federal Circuit and Family Court of Australia. I do not think that I can compel that Court to join these proceedings with other proceedings in that Court. Nor do I think that I can specifically transfer the proceedings to one of the two divisions of that Court. These reasons disclose that these proceedings are being transferred because I consider the issues in the proceedings in this Court should be determined by the Federal Circuit and Family Court of Australia with the family law proceedings. I do not consider that I can do more than that.

ISSUE 3: SHOULD THERE BE A TRANSFER OR STAY OF THESE PROCEEDINGS?

42. Having determined that this court has the power to transfer these proceedings to the Federal Circuit and Family Court of Australia generally, the next issue is whether I should order that these proceedings be transferred to the Federal Circuit and Family Court of Australia or stayed. Mr Liu argues that these proceedings should be transferred or stayed, and Ms Liu and Ms Jia oppose both the transfer and a stay.

Submissions of Mr Liu

43. Mr Liu’s submissions in favour of the transfer or stay of these proceedings can be summarised as follows:

1. The subject matter of these proceedings substantially overlaps with issues that are directly in contest in the FCFCA proceedings, including:

1. ascertaining the contributions to the purchase price of the Campsie property (if any) of each of Mr Liu’s (or his parents’) and Ms Jia’s (or her parents’) respectively; and

2. whether Ms Jia holds the Campsie property on trust for Ms Liu or whether the Campsie property forms part of the “property pool” for division between Mr Liu and Ms Jia in the FCFCA proceedings.

2. The Federal Circuit and Family Court of Australia cannot perform its statutory function of identifying and adjusting property interests under ss 79 and 90SM of the Family Law Act 1975 (Cth) without determining whether the Campsie property is beneficially owned by Ms Jia, by Ms Liu, or is otherwise subject to trust interests. Ms Liu is asserting rights that, if established, would reduce or exclude Mr Liu’s entitlements in any property settlement. Ms Liu’s purported interest in the Campsie property can be fully ventilated in the FCFCA proceedings if she is joined as a third party, as contemplated by ss 79(10) and 90SM(9) of the Family Law Act.

It is convenient to note here that s 79(10) of the Family Law Act does not exist and so I have assumed it to be a mistaken reference to s 79AA(10), which pertains to particular parties being joined to proceedings brought under s 79 seeking alteration of property interests following the breakdown of a marriage. Similarly, s 90SM(9) of the Family Law Act does not exist. As s 90SMA(9) concerns settlement conferences, I have (perhaps generously) taken this to be a reference to s 90SMA(10) of the Family Law Act, which deals with parties being joined to proceedings brought under s 90SM seeking alteration of property interests following the breakdown of a de facto relationship.

3. The Federal Circuit and Family Court of Australia is specifically empowered and experienced in determining third-party trust and loan disputes where they are intertwined with property settlement claims. In the interests of justice, the same court should determine all questions relating to contributions, ownership, and equitable claims to avoid inconsistencies, delay and duplication of evidence and costs.

4. This court has the power under s 5(1)(b)(ii) of the NSW Cross-Vesting Act to transfer proceedings to the Federal Circuit and Family Court of Australia if it considers it is “in the interests of justice” to do so.

5. It is well established that where substantial overlapping issues arise in concurrent proceedings, the interests of justice favour transfer to avoid inconsistent findings and multiplicity of proceedings, citing BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61, Gleeson CJ, McHugh and Heydon JJ at [31]–[33] (which, again, appears to be an entirely erroneous reference). These proceedings, if they are permitted to continue in this court, create a “real risk of inconsistent factual and legal findings as to ownership, beneficial interests, and contributions”.

6. In respect of a stay of these proceedings until determination of the FCFCA proceedings, such a stay would “prevent duplication and inconsistent findings” while still preserving Ms Liu’s ability to pursue her claims in respect of the Campsie property following their conclusion.

Submissions of Ms Liu

44. As mentioned previously, Ms Liu does not oppose Mr Liu being joined as a party to these proceedings but opposes both the transfer of these proceedings and any stay of them. As I have determined that this court has jurisdiction to transfer proceedings to the Federal Circuit and Family Court of Australia, Ms Liu’s other submissions opposing the transfer of these proceedings or a stay of them can be summarised as follows:

1. The interests of justice do not favour the transfer of these proceedings to the Federal Circuit and Family Court of Australia. While that court could no doubt deal with the entirety of the dispute (including the subject matter of these proceedings), the dictates of justice weigh against a transfer of these proceedings to the Federal Circuit and Family Court of Australia. It is more appropriate and in the interests of justice that these proceedings remain and proceed in this court. The claim in these proceedings is narrow, is supported by contemporaneous documents and falls squarely within the equitable jurisdiction of this court. Whatever is decided in these proceedings, the Federal Circuit and Family Court of Australia can then determine the balance of the dispute between the parties knowing what the position is in respect of the Campsie property: Aspinall v Acqua Sports Pty Ltd [2018] NSWSC 706; Xue v Xue [2020] NSWSC 501.

2. These proceedings should not be stayed. While the starting point may be that the interests of justice ordinarily warrant a single court dealing with the entirety of the dispute between the parties, the dictates of justice in this case weigh against the granting of a stay for the following reasons:

1. The subject matter of the claim in these proceedings falls squarely within the equitable jurisdiction of this court.

2. These proceedings have a relatively narrow ambit. All evidence has been filed and the proceedings are ready to take a hearing date with a likely estimate of a half-day. Relevant facts have been admitted by Ms Jia in accordance with r 17.3(2) of the UCPR.

3. By contrast, the FCFCA proceedings remain at a very early stage, with disputes about disclosure and the like. Those proceedings will be complex, with a 5-day estimate propounded by Ms Jia as the defendant in the FCFCA proceedings, which are unlikely to be heard before August 2026.

3. In circumstances where the evidence supporting the relief claimed by Ms Jia is already on, there would be no forensic disadvantage to Mr Jia if these proceedings were to continue in this court.

Submissions of Ms Jia

45. As mentioned previously, Ms Jia does not oppose Mr Liu being joined as a party to these proceedings and, while she does not formally oppose the transfer of these proceedings to the Federal Circuit and Family Court of Australia, Ms Jia’s submissions only advance arguments that they should not be transferred. Apart from her support of the jurisdictional point raised by Ms Liu, which I have determined above, Ms Jia’s submissions opposing the transfer can be summarised as follows:

1. the subject matter of the claim is narrow and discrete;

2. Ms Jia has admitted the basis of the claim;

3. these proceedings are ready for hearing;

4. the FCFCA proceedings are unlikely to be heard until late 2026;

5. transferring these proceedings would cause unnecessary delay and expense;

6. Mr Liu will not be prejudiced if these proceedings are determined as any alleged contributions to the Campsie property by Mr Liu (or his parents) can be raised in this court and the Federal Circuit and Family Court of Australia will take any findings about them into account when undertaking any property adjustment under the Family Law Act; and

7. the interests of justice are best served by allowing this court to exercise its equitable jurisdiction to finally and promptly determine Ms Liu’s narrow claim in respect of the Campsie property.

Legal principles

46. This court is required to have regard to each of the matters in ss 5(1)(b)(ii)(A), (B) and (C) of the NSW Cross-Vesting Act in determining whether it is more appropriate that these proceedings be determined by the Federal Circuit and Family Court of Australia. The matters listed in (A), (B) and (C) are not cumulative requirements: Sultan, Williams J at [13], citing Zhang v Levingson [2023] NSWSC 1559, Slattery J at [26]–[30].

47. If neither (A) nor (B) is satisfied, this court may in any event conclude, having regard to the “interests of justice”, that it is more appropriate that these proceedings be determined by the Federal Circuit and Family Court of Australia: Nicita, Brereton J at [8], citing Valceski v Valceski (2007) NSWLR 36; [2007] NSWSC 440, Brereton J at [67]–[68].

48. In identifying the “more appropriate forum”, relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions, and “connecting factors” including matters of convenience and expense such as the availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction or claim: BHP Billiton, Gleeson CJ, McHugh and Heydon JJ at [18]–[19], citing Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, Goff LJ at 478.

49. Another relevant consideration in identifying the appropriate forum is where the factual matters in concurrent proceedings would “inevitably” overlap in some significant respect such that certain matters would have to be revisited resulting in a duplication of evidence, costs and issues for determination that might be avoided if both proceedings were determined by one court: Valceski, Brereton J at [75].

50. A particular category of case where this is a concern is where the same issue will be litigated in each of the two proceedings, such as the beneficial ownership of matrimonial property that will later be subject to property settlement proceedings. In cases of this kind, the issues in the equity suit might be said to be a subset of the matrimonial proceedings and, by bringing the equity suit following the institution of the matrimonial proceedings in a different court, third parties have been said to have invited themselves into the matrimonial controversy. In these circumstances, where the occasion for the equity suit appears to have been the breakdown of the marriage, it will ordinarily be appropriate for the issues raised by the equity suit to be resolved in the matrimonial proceedings and the remarks made in Valceski, by Brereton J at [77] are oft cited in this context:

… Third parties who intervene in matrimonial disputes in this way — especially associates, such as parents and private companies, of one or other of the spouses — cannot complain if their dispute is treated as part of the larger matrimonial dispute which it normally is. Where third parties who assert rights against matrimonial property do so concurrently with pending matrimonial property proceedings, it will ordinarily be appropriate for those issues to be resolved in the matrimonial proceedings, and for the third party to join in those proceedings for that purpose, rather than to commence separate litigation, in another court, which almost inevitably results in duplication of evidence, issues, time and costs. …

51. The applicant for a transfer bears no burden of persuasion or onus of proof and no particular significance attends the plaintiff’s original choice of forum unless both forums are equally appropriate: BHP Billiton, Gummow J at [71] and [77]; Valceski, Brereton J at [70].

Consideration

52. By his submissions, Mr Liu does not suggest that either of the criteria in ss 5(1)(b)(ii)(A) or (B) of the NSW Cross-Vesting Act are applicable.

53. The fact that neither of those criteria is engaged suggests that this court is the more appropriate forum: Valceski, Brereton J at [67]–[68].

54. Each of Ms Liu and Ms Jia appear to accept by their submissions that the interests of justice criterion under s 5(1)(b)(ii)(C) of the NSW Cross-Vesting Act is the significant factor on this application.

55. The primary question in this case is therefore whether, having regards to the interests of justice, it is more appropriate that these proceedings, which are currently before this court, be heard in the Federal Circuit and Family Court of Australia. Having had regard to the interests of justice, if I am satisfied that the Federal Circuit and Family Court of Australia is the more appropriate forum for these proceedings, I am statutorily obliged to transfer these proceedings to be determined there: Valceski, Brereton J at [69].

56. In my view the interests of justice require me to transfer these proceedings to the Federal Circuit and Family Court of Australia for the following reasons.

57. First, the issue in dispute in these proceedings concerns the interests in the Campsie property, which is itself part of a wider dispute that is presently before the Federal Circuit and Family Court of Australia in the FCFCA proceedings to determine the various entitlements to the property pool of the relationship between Ms Jia and Mr Liu. The FCFCA proceedings will involve consideration of the identification of the pool of property of the parties to the marriage, an assessment of the respective financial and non-financial contributions to the property and the making of appropriate adjustments to reflect the means and needs of the parties.

52. The discrete issue in these proceedings concerns the nature of Ms Liu’s interest in the Campsie property but it does not deal with the nature of Mr Liu’s interest in the Campsie property. Joining Mr Liu as a party to these proceedings for him to provide evidence and submissions on the nature of Ms Liu’s interest will not obviate the need for him to put on evidence in the FCFCA proceedings regarding the interest he claims in the Campsie property. The duplication of evidence, time and costs for Mr Liu and Ms Jia is inevitable if I permit these proceedings to continue in this court. The determination of these proceedings as to whether or not there should be rectification of the Loan Agreement will not quell the wider dispute over the Campsie property.

53. The FCFCA proceedings were commenced in December 2024, while these proceedings were commenced in June 2025. In other words, Ms Liu walked into a litigation landscape to have her narrow issue concerning the Campsie property determined in this court when the wider issues concerning the Campsie property were already the subject of the earlier FCFCA proceedings. To adopt the words of Brereton J in Valceski, it will ordinarily be appropriate for the narrow issue to be resolved in the FCFCA proceedings, and for Ms Liu as the third party to join in those proceedings for that purpose, rather than to commence separate litigation in this court as she has done in these proceedings, which almost inevitably results in duplication of evidence, issues, time and costs.

54. Secondly, while these proceedings may be ready to be heard and determined in advance of the FCFCA proceedings, allowing that to occur will itself cause the duplication of evidence, issues, time and costs while transferring these proceedings will avoid that duplication. While I am conscious that the transfer will cause delay in the resolution of the issues in these proceedings from some time in early 2026 to later in 2026, such delay is simply the side effect of avoiding the duplication to all parties and is not so significant to overcome the costs of the duplication in my balancing of the interests of justice.

55. Thirdly, in light of the overlap in the issues arising in these proceedings and the FCFCA proceedings, I consider that it is in the interests of justice for there to be the transfer of these proceedings to the Federal Circuit and Family Court of Australia to avoid there being two proceedings in which there may be inconsistent findings regarding the ownership, beneficial interests and contributions made in relation to the Campsie property. There is the real possibility of that occurring in the present case unless all of the evidence, submissions and findings arising from them are exactly the same in these proceedings and the FCFCA proceedings. There is no way of ensuring that is the case when the FCFCA proceedings involve a much wider set of considerations for the Federal Circuit and Family Court of Australia to determine.

56. Fourthly, the fact that the Equity Division of this court has the jurisdiction to determine these proceedings is a neutral factor in balancing the interests of justice because there is no doubt that following their transfer, the Federal Circuit and Family Court of Australia also has jurisdiction to determine them. I do not regard this court as the more appropriate forum to determine these proceedings just because it involves a claim of rectification.

ORDERS

63. For these reasons, Mr Liu has succeeded in his application to be joined as a party to these proceedings and to transfer these proceedings to the Federal Circuit and Family Court of Australia. As costs follow the event, he should also receive his costs of the application from Ms Liu and Ms Jia, who both opposed it.

64. I make the following orders:

1. Pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005 (NSW), Jian Liu is joined as the second defendant in the proceedings.

2. Pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), the proceedings are transferred to the Federal Circuit and Family Court of Australia.

3. The plaintiff and the first defendant are to pay the second defendant’s costs of the notice of motion filed on 20 August 2025.

4. Costs of these proceedings are otherwise reserved to the Federal Circuit and Family Court of Australia.

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Decision last updated: 17 October 2025