Nicita v Nicita - [2025] NSWSC 585

Supreme Court

New South Wales

Medium Neutral Citation: Nicita v Nicita [2025] NSWSC 585
Hearing dates: 30 May 2025
Date of orders: 2 June 2025
Decision date: 02 June 2025
Jurisdiction: Equity - Applications List
Before: Brereton J
Decision:
See [28]

Catchwords:
CIVIL PROCEDURE – cross-vesting – application to transfer the proceedings to Federal Circuit and Family Court of Australia – where the Supreme Court proceedings include claims by the plaintiffs for a declaration that the first and second defendant hold property on remedial constructive trust for their benefit – where the relevant property in the Supreme Court proceedings is the only asset of value in the FCFCA proceedings – where the FCFCA has jurisdiction to hear the matter – whether it is in the interests of justice to transfer the proceedings – balancing the interests of justice – proceedings transferred

Legislation Cited:
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Cases Cited:
Bankinvest AG v Seabrook (1988) 14 NSWLR 711; (1988) 90 ALR 407; (1988) 92 FLR 153
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
Sultan v Dabboussi [2024] NSWSC 683
Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440
Vaughan v Frost [2010] NSWSC 492
Xue v Xue; Xue v Xue [2020] NSWSC 501

Texts Cited:
N.A.

Category: Procedural rulings
Parties: Colomba Nicita (first plaintiff)
Rocco Nicita (second plaintiff)
Anthony Nicita (first defendant)
Solmaz Viarsagh (second defendant)
Representation:
Counsel:
S A Lees (plaintiffs)
E Cox SC (second defendant)
No other appearances
Solicitors:
Kardos Scanlan (plaintiffs)
Watkins Tapsell (second defendant)

File Number(s): 2024/443417
Publication restriction: N.A.

JUDGMENT (ex tempore – revised from the transcript)

By notice of motion filed on 20 March 2025, the second defendant seeks an order that the matter be transferred to the Federal Circuit and Family Court of Australia to be joined to proceedings between Ms Bastani Viarsagh and Mr Nicita, bearing case number SYC2678/2024, pursuant to s 4, 5(1)(a) and (b) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) and s 79(10) of the Family Law Act 1975 (Cth).
The plaintiffs oppose the application.
The proceedings in this Court were commenced by statement of claim filed on 28 November 2024. The plaintiffs are an elderly married couple. The first defendant is their son. The second defendant is the estranged wife of the first defendant.
In the Supreme Court proceedings, the plaintiffs seek inter alia a declaration that the first and second defendants hold their interest in certain property at Connells Point on a remedial constructive trust for the plaintiffs. It is alleged that both the husband/son (first defendant) and wife (second defendant) hold the property on constructive trust, or alternatively, it is just the husband/son who does so. The claim has some complexity.
In broad terms, it is alleged that at least part of the money used by the defendants to acquire the Connells Point property in 2013 was money held on constructive trust by the husband/son arising from…

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 Nicita v Nicita

Details

AGLC: Nicita v Nicita [2025] NSWSC 585
Case: [2025] NSWSC 585
Decision Date: 02 June 2025

CaseChat Overview and Summary

The case of Nicita v Nicita involved a dispute between family members over property. The plaintiffs sought a declaration that the first and second defendants held property on a remedial constructive trust for their benefit. The proceedings were initially in the Supreme Court, but the defendants sought a transfer of the proceedings to the Federal Circuit and Family Court of Australia (FCFCA). The central legal issue before the court was whether it was in the interests of justice to transfer the proceedings to the FCFCA, given that the property in question was the only asset of value in the FCFCA proceedings and that the FCFCA had jurisdiction over the matter.

The court considered various factors in determining whether the transfer of proceedings was in the interests of justice. These factors included the nature of the claims, the relationship between the parties, and the potential impact on the efficiency and fairness of the proceedings. The court noted that the property in dispute was the only asset of value in the FCFCA proceedings and that the FCFCA had jurisdiction over the matter. The court also considered the need for consistency in the resolution of related legal issues across the two courts. The court concluded that transferring the proceedings to the FCFCA was in the interests of justice, as it would promote efficiency and ensure a consistent resolution of the legal issues.

The Supreme Court transferred the proceedings to the FCFCA, recognising that the FCFCA had the necessary jurisdiction and that the transfer would serve the interests of justice by promoting efficiency and consistency. The court's decision highlighted the importance of considering the broader context of related legal proceedings when deciding whether to transfer proceedings between courts. The court's order effectively streamlined the legal process by consolidating the proceedings in the FCFCA, where the parties' claims could be more effectively and efficiently resolved.

Orders