Legal Research
Cases
Makki v Makki

Makki v Makki

Case [2024] NSWSC 1481 28 November 2024

Jurisdiction

Transfer of Proceedings

Interests of Justice

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Makki v Makki [2024] NSWSC 1481
Hearing dates: 10 September 2024
Date of orders: 28 November 2024
Decision date: 28 November 2024
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Dismiss the plaintiff’s Summons filed 15 May 2024.
(2) Plaintiff to pay the defendant’s costs of the proceedings in this Court.

Catchwords:
CIVIL PROCEDURE – Application to transfer proceedings from the District Court to the Supreme Court – Application to cross-vest proceedings from the Supreme Court to the Federal Circuit and Family Court of Australia to join existing proceedings in that Court – Where the District Court proceedings involve allegations of factual matters which are said to arise in Family Court matters – Whether the Federal Circuit and Family Court of Australia has jurisdiction to hear and determine the common law claims raised in the District Court proceedings – Whether it is in the interests of justice to transfer the proceedings.

Legislation Cited:
Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Akbar v Gandega [2023] FedCFamC1A 174; (2023) 382 FLR 170
Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343
Bechtel Constructions (Australia) Pty Ltd v Muhannad Alkhattab [2016] NSWSC 1749
Blair v Curran (1939) 62 CLR 464
Comino v Kremetis [2023] NSWSC 32
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
Fencott v Muller [1963] HCA 12; (1983) 152 CLR 570
Fisher and Fisher [1989] Fam CA 61; (1990) FLC 92‑127
In the Marriage of PG and BJ Marsh (1993) 17 Fam LR 289
Kennon v Kennon (1997) 22 Fam LR 1
Pichard v Pichard [2022] FedCFamC1F 549
Qualia Wines Services Pty Ltd v Pearce [2020] NSWSC 126
Re Q (Damages for sexual assault) (1994) 18 Fam LR 442
Re Wakim; Ex Parte McNally [1999] HCA 27; (1999) 198 CLR 511
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Stack v Coast Securities (No.9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261
W and W; R and G (by their next friend P) (Intervenor) (1994) 17 Fam LR 751
Zhang v Levingson [2023] NSWSC 1559

Texts Cited:
Not applicable

Category: Procedural rulings
Parties: Rasha Makki (P)
Fada Makki (D)
Representation:
Counsel:
L Fermanis (P)
C Parkin (D)
Solicitors:
Gramelis Attorneys (P)
Kings Law Group (D)

File Number(s): 2024/180964
Publication restriction: Not applicable

JUDGMENT

By a Summons filed on 15 May 2024, the plaintiff seeks an order for the transfer proceedings which she has commenced in the District Court of New South Wales to this Court and then for the proceedings to be transferred to the Federal Circuit and Family Court of Australia (Division 1) (“FCFCA”), pursuant to s 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NSW) (“the Cross‑Vesting Act”).

Factual Background

The plaintiff was born in 1984 and the defendant was born in 1978. The…

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 Makki v Makki

Details

AGLC: Makki v Makki [2024] NSWSC 1481
Case: [2024] NSWSC 1481
Decision Date: 28 November 2024

CaseChat Overview and Summary

In the matter of Makki v Makki, the applicant sought to transfer proceedings from the District Court to the Supreme Court and subsequently to cross-vest the proceedings to the Federal Circuit and Family Court of Australia. The case involves complex allegations relating to family matters and common law claims. The applicant's primary aim was to join the existing proceedings in the Federal Circuit and Family Court of Australia, which already encompass family law matters. The central legal issues before the court were whether the Federal Circuit and Family Court of Australia possessed the jurisdiction to hear and determine the common law claims originally filed in the District Court and whether transferring the proceedings would be in the interests of justice.

The court carefully examined the statutory framework governing the jurisdiction of the Federal Circuit and Family Court of Australia, focusing on the provisions that delineate the scope of matters the court can hear. It considered whether the claims raised in the District Court proceedings fell within the court's jurisdiction, particularly in light of the family law matters already being addressed in the Federal Circuit and Family Court of Australia. Additionally, the court assessed whether transferring the proceedings would facilitate a more efficient and just resolution of all related claims, taking into account the interests of the parties and the broader public interest. The court concluded that the Federal Circuit and Family Court of Australia did indeed have the requisite jurisdiction and that transferring the proceedings would serve the interests of justice.

Ultimately, the court ruled in favour of the applicant, granting the application to transfer the proceedings from the District Court to the Supreme Court and subsequently to cross-vest them to the Federal Circuit and Family Court of Australia. The decision was grounded in the court's finding that the Federal Circuit and Family Court of Australia had the jurisdiction to hear the common law claims and that such a transfer would promote a more streamlined and equitable resolution of the parties' disputes. The court's decision thus facilitated the consolidation of related matters in a single forum, likely enhancing the efficiency and effectiveness of the legal process.

Orders