North v Peter North Superannuation Fund Pty Ltd - [2022] WASC 16

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NORTH -v- PETER NORTH SUPERANNUATION FUND PTY LTD [2022] WASC 16
CORAM:   SMITH J
HEARD:   14 JANUARY 2022
DELIVERED          :   21 JANUARY 2022
FILE NO/S:   CIV 1618 of 2021
BETWEEN:   TAYLA EVANA NORTH
First Plaintiff
TRAVIS VAUGHN NORTH
Second Plaintiff
AND
PETER NORTH SUPERANNUATION FUND PTY LTD
First Defendant
ANNETTE STELLA NORTH
Second Defendant

Catchwords:

Cross-vesting jurisdiction - Application to remove proceedings to the Family Court of Western Australia - Proceedings related to proceedings pending in the Family Court - More appropriate and in the public interest proceedings be determined by the Family Court

Legislation:

Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross–vesting) Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Proceedings transferred to the Family Court of Western Australia

Category: B

Representation:

Counsel:

First Plaintiff	:	B Hanbury
Second Plaintiff	:	B Hanbury
First Defendant	:	No appearance
Second Defendant	:	BW Ashdown

Solicitors:

First Plaintiff	:	Hale Legal
Second Plaintiff	:	Hale Legal
First Defendant	:	No appearance
Second Defendant	:	Culshaw Miller Lawyers

Cases referred to in decision:

Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Coley v Danae [2020] WASCA 13
Fell v Fell [2007] WASC 157
H v D [2012] WASC 291
Halvorson v Zahra (deceased) (No 3) [2005] FCWA 32
Mrowka v Format Finishing Pty Ltd [2009] WASCA 184
Sewell v Wilson [2010] WASCA 152

SMITH J:

1.0 The application and the result

The second defendant, Annette Stella North, applies for orders that Supreme Court proceedings be transferred to the Family Court of Western Australia (Family Court) pursuant to s 5(4) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA); or alternatively be stayed pending the determination of an outcome of Family Court of Western Australia proceedings PTW 3468 of 2017.
Both proceedings concern a dispute about entitlement to a death benefit paid by a superannuation fund.
For the reasons that follow, I am of the opinion that the Supreme Court proceedings should be transferred to the Family Court.

2.0 The relief sought by the plaintiffs in the Supreme Court proceedings and matters raised by the second defendant in her application in the Family Court of Western Australia

2.1 Background

The plaintiffs are the children and beneficiaries of the late Peter Eric North (Mr North), who prior to his death on 12 February 2020 was married to, but separated, from the second defendant. The second defendant and Mr North had commenced living together on 5 December 2004, and married on 6 November 2010. They separated on 11 July 2016.
The second defendant commenced property settlement proceedings in the Family Court in 2017 against Mr North. Mr North died (before the Family Court proceedings were finalised) on 12 February 2020.
Mr North established a self-managed superannuation fund known as the Peter North Superannuation Fund (Fund) by a deed dated 1 May 1997. The first defendant was incorporated on 26 October 2006.…

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.

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Details

Case: [2022] WASC 16
Decision Date

CaseChat Overview and Summary

The case of North v Peter North Superannuation Fund Pty Ltd [2022] WASC 16 involved an application by Annette Stella North to transfer Supreme Court proceedings concerning a dispute about entitlement to a death benefit paid by a superannuation fund to the Family Court of Western Australia. The plaintiffs, Tayla Evana North and Travis Vaughn North, sought a declaration that they were entitled to the entire death benefit. The second defendant argued that the Family Court should determine the matter due to the related proceedings already in progress concerning the same death benefit. The court found that the Supreme Court proceedings were related to the Family Court proceedings, and it was more appropriate and in the public interest for the Family Court to determine the matter. The court transferred the Supreme Court proceedings to the Family Court of Western Australia, noting that the Family Court had the jurisdiction and power to resolve all issues concerning the validity and enforceability of the death benefit nomination.

The final orders made by the court were that the proceedings in CIV 1618 of 2021 be transferred to the Family Court of Western Australia. The parties were to be heard further as to the orders that should be made as to costs.

Orders