May v Costaras

[2023] NSWSC 405

Supreme Court

New South Wales

Medium Neutral Citation:

May v Costaras [2023] NSWSC 405

Hearing dates:

13 April 2023

Date of orders:

13 April 2023

Decision date:

13 April 2023

Jurisdiction:

Equity

Before:

Ball J

Decision:

The defendant’s notice of motion filed 1 February 2023 is dismissed with costs.

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer to Federal Circuit and Family Court of Australia of Australia — Where no proceedings on foot at the time of application — Where applicant has not referred to relevant factors under the Family Law Act 1975 (Cth) — Where a purely equitable claim

Legislation Cited:

Family Law Act 1975 (Cth)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

Category:

Procedural rulings

Parties:

Michael Albert Robert May (Plaintiff)
Lila Rasa Costaras (Defendant)

Representation:

Counsel:
B Phillips (Plaintiff | Respondent)
Litigant in Person (Defendant | Applicant)

Solicitors:
Proctor Phair Lawyers (Plaintiff | Respondent)
Litigant in Person (Defendant | Applicant)

File Number(s):

2022/321875

Publication restriction:

None

EX TEMPORE JUDGMENT

1. By notice of motion filed 1 February 2023 the defendant seeks a number of orders relating to these proceedings. Before addressing those orders it is necessary to say something about the proceedings.

2. In or about January 2021, the plaintiff and defendant formed a romantic relationship. In March 2021 the defendant and her two young children moved in with the plaintiff at a house the plaintiff owned on Water Ski Parade, Cumberland Reach, New South Wales (the Cumberland Reach Property). The defendant moved out in November 2021, and it appears that the plaintiff and defendant resumed their relationship a short time later. In February 2022, the plaintiff bought a property in Ann Street, Maryborough in Queensland and, following settlement, the plaintiff and defendant moved into that property together. In June 2022, the plaintiff negotiated to buy a third property in Scott Street, Maryborough, Queensland (the Scott Street Property). It is his case that, before doing so, he and the defendant became engaged, and that the defendant said that she would only marry him if he agreed to buy the property in both their names, which is what he did. A short time later the relationship between the plaintiff and the defendant ended. In these proceedings, the plaintiff claims that the defendant holds her interest in the Scott Street property as a constructive trustee for him. He seeks a declaration to that effect and an order transferring the property into his name alone.

3. The orders sought in the notice of motion fall into several categories.

4. First, the defendant seeks an order transferring these proceedings to the “Federal Magistrates Court” (now known as the Federal Circuit and Family Court of Australia), or, alternatively, an order staying these proceedings. Second, the defendant seeks orders restraining the plaintiff from dealing with the Cumberland Reach and Scott Street properties together with a number of other assets which are said to be owned by the plaintiff and the defendant jointly. Third, in the alternative the defendant seeks orders for the sale of the Scott Street Property.

5. In my opinion none of the orders sought in the notice of motion should be made. This Court has no power to transfer this matter to the “Federal Magistrates Court”. It does have power under s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) in certain circumstances to transfer proceedings in this Court to the “Family Court” (now known as the Federal Circuit and Family Court of Australia (Division 1)), but no such order is sought, nor could any such order be made as things stand. The Family Court does not have jurisdiction to hear a purely equitable claim of the type brought by the plaintiff.

6. It is apparent from some of the specific orders sought in the notice of motion and some paragraphs of the defendant's defence that she claims to have an entitlement to relief under Pt VIIIAB Div 2 of the Family Law Act 1975 (Cth) arising from the breakdown in the de facto relationship between her and the plaintiff. However, to date the defendant has not filed a cross-claim in these proceedings seeking relief of that type, nor has she commenced separate proceedings in the Federal Circuit and Family Court of Australia seeking that relief. If a cross-claim is filed or separate proceedings are commenced it may be appropriate for these proceedings to be transferred or stayed, but, whether or not that is the case will depend on a number of factors, including the nature of the claim and the stage the proceedings have reached at that time.

7. As to the second type of relief claimed by the defendant, that relief would only be appropriate in aid of final relief sought by the defendant. However, as I have said, the defendant seeks no final relief in these proceedings.

8. It appears that the defendant wishes or is contemplating seeking relief under the Family Law Act. If those proceedings are commenced, the defendant may be entitled to seek interlocutory relief in aid of the relief that she claims in those proceedings, but in order to be able to do so, it would be necessary for the defendant to satisfy the Court that she had an arguable case for final relief under the Family Law Act and that the balance of convenience favoured granting interlocutory relief. Both those issues are likely to be contentious. In order to obtain relief under the Family Law Act, the defendant must establish relevantly that the parties' de facto relationship lasted for a total period of at least two years or that she made substantial contributions of any of the types referred to in s 90SM(4)(a) to (c) of the Family Law Act, and that the failure to make such an order would result in serious injustice to her: see s 90SB of the Family Law Act.

9. In order to demonstrate that the balance of convenience favours granting an interlocutory injunction, the defendant is likely to need to demonstrate that there is a real risk that the plaintiff will dispose of his assets unless restrained. That is particularly significant in the present context since it is difficult to see how the plaintiff could dispose of his interest in the Scott Street Property.

10. As to the third type of relief claimed by the defendant, that relief is in the nature of final relief. It is relief that could only be granted, if at all, after these proceedings were determined in the defendant's favour.

11. For those reasons, in my opinion, the notice of motion filed 1 February 2023 must be dismissed with costs.

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Decision last updated: 19 April 2023