Manson v Della-Bosca - [2014] NSWSC 1232

Supreme Court

New South Wales

Medium Neutral Citation: Manson v Della-Bosca & Anor [2014] NSWSC 1232
Hearing dates: 25 August 2014
Decision date: 25 August 2014
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)Pursuant to s 5(1)(b) of the Jurisdiction of Court (Cross Vesting Act 1987 (NSW) order that the proceedings be transferred to the Family Court of Australia to be case managed and heard with proceedings number SYC737/2014.
(2)Pursuant to s 74K(2) Real Property Act 1900 caveat number A1739867 is extended until the further order of the Family Court of Australia.
(3)I reserve all questions of costs to the discretion of the Family Court of Australia upon the final determination of the proceedings in that court.

Catchwords:
PROCEDURE - civil - jurisdiction - transfer of proceedings to Family Court
PROPERTY LAW - caveats - application for the extension of the operation of a caveat
Legislation Cited: Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Real Property Act 1900 (NSW), ss 74J, 74K
Cases Cited: Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459;
BHP Billiton v Schultz (2004) 221 CLR 400;
Jackson v Mylan (2012) 263 FLR 148;
Kerrabee Park Pty Ltd v Daley (1978) 2 NSWLR 222;
Palmer v Wiley (1906) 23 WN (NSW) 90;
Valceski v Valceski (2007) 70 NSWLR 36
Category: Interlocutory applications
Parties: Adrian Russell Manson (Plaintiff)
Roxanne Mary Della-Bosca (First Defendant)
Christopher Tilley (Second Defendant)
Representation: Counsel:
C Othen (Plaintiff)
In person (Defendant)
Solicitors:

File Number(s): 2014/00242377

ex tempore Judgment

The present dispute relates to the breakdown of the marriage of the plaintiff Mr Adrian Manson and the first defendant Dr Roxanne Della-Bosca. Dr Della-Bosca has formed a new permanent relationship with the second defendant, Mr Christopher Tilley. In March of this year Dr Della-Bosca and Mr Tilley completed the purchase of a property at Bangor. The agreement to buy the property had been made some time earlier at the end of 2013 and they settled the purchase under threat of a notice to complete.

The purchase money for the purchase came partly from the sale of the former home of Dr Della-Bosca and Mr Manson at Oatley. They owned that house as joint tenants. A figure just short of $400,000 from the proceeds of that sale was utilised to complete the purchase at Bangor. The balance of the money, a figure over $700,000 is held in a solicitor's trust account. Mr Manson has been unable to access those funds because Dr Della-Bosca will not authorise the release of the moneys to him.

The balance of the purchase money for the Bangor property came from the sale of shares which were solely in Dr Della-Bosca's name. Dr Della-Bosca says that those shares, although acquired through the efforts of both her and Mr Manson during the course of the marriage were given to her beneficially during the marriage as "compensation".

Mr Manson says that it was an arrangement of convenience that the shares were…

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 Manson v Della-Bosca

Details

AGLC: Manson v Della-Bosca [2014] NSWSC 1232
Case: [2014] NSWSC 1232
Decision Date: 25 August 2014

CaseChat Overview and Summary

In Manson v Della-Bosca, the matter was heard before Justice Edelman in the Supreme Court of New South Wales. The dispute involved a claim by Della-Bosca for an extension of a caveat over property located at 25-27 O'Connell Street, North Sydney. The caveat had been lodged by Della-Bosca on 28 August 2009, and the initial application for an extension was made on 11 March 2010. Manson contested the application on the basis that the property was subject to a registered mortgage and that the extension was therefore invalid.

The primary legal issue before the court was whether the Supreme Court had jurisdiction to hear the application for the extension of the caveat. Additionally, the court needed to determine whether the application was valid given the presence of a registered mortgage over the property. The court had to consider whether the application was frivolous or vexatious, and whether it was in the interests of justice to transfer the proceedings to the Family Court.

Justice Edelman concluded that the Supreme Court did not have jurisdiction to hear the application as the matter related to family law. The court found that the application was frivolous and vexatious, and therefore ordered the proceedings to be transferred to the Family Court. The judge also noted that the presence of a registered mortgage over the property was a significant factor in determining the validity of the caveat extension. The orders made by the court included the transfer of the proceedings to the Family Court, with the caveat to remain in force until the Family Court made further orders.

Orders