JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2019, further submissions on 29 March 2019 and 22 November 2019
DATE OF JUDGMENT:	11 December 2019
CASE MAY BE CITED AS:	S Pty Ltd v BV (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 814

---

PRACTICE AND PROCEDURE – Application to transfer a proceeding by a mortgagee for recovery of possession of a property to the Family Court – Where defendant to the action has commenced proceedings under the Family Law Act 1975 (Cth) for property settlement against the mortgagor on the basis that they were in a relevant de facto relationship – Where jurisdiction of the Family Court to hear the application for property settlement is disputed and not yet determined – Whether the applicant may rely on the Jurisdiction of Courts (Cross-Vesting Act) 1987 (Cth) – If so, whether the applicant may rely on s 5(1)(b)(iii) ‘interests of justice’ of that Act as a stand-alone ground – Consideration of the proper construction of s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) and s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) – Application refused.

PRACTICE AND PROCEDURE – Application for stay of proceeding pending determination of the question of jurisdiction in the Family Court proceeding – Application refused.

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) preamble, ss 4(3), 5, 9, 15 – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) s 5(1)(b)(ii) and s 5(9) – Re Wakim: Ex parte McNally (1999) 198 CLR 511 – Valceski v Valceski (2007) 70 NSWLR 36 – Tucker v State of Victoria [2018] VSC 389 – Hurst v Koszewski [2019] SASC 67.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr C G Button SC with Ms X Teo	Arnold Bloch Leibler
For the Defendant	Mr I R Jones QC	Marshalls & Dent & Wilmoth

TABLE OF CONTENTS

Introduction and summary.............................................................................................................. 1

Outline of the facts............................................................................................................................ 2

Procedural background..................................................................................................................... 4

Cross-vesting law............................................................................................................................... 8

Re Wakim......................................................................................................................................... 9
Amendments post Re Wakim..................................................................................................... 11

Submissions...................................................................................................................................... 16

Defendant..................................................................................................................................... 16
Plaintiff......................................................................................................................................... 17

Issues.................................................................................................................................................. 18

Analysis of the legislation.............................................................................................................. 19

Issues 1 and 2: Availability of the Commonwealth Act........................................................ 19
Is the Commonwealth Act available to the applicant at all?....................................... 19
Is the whole of s 5(1)(b) of the Commonwealth Act available to the applicant?...... 24
Conclusion on the availability of the Commonwealth Act......................................... 29

Issue 3: Proper construction of s 5(1)(b)(ii) of the Commonwealth Act.............................. 29

Issue 4: Consideration of the application in light of the legal framework........................... 36

S 5(1)(b)(iii) Commonwealth Act (assuming it applies)........................................................ 36
Principles............................................................................................................................ 36
Submissions on the facts................................................................................................... 38
Overlap of issues................................................................................................................ 39
Risk of conflicting judgments.......................................................................................... 43
Efficiency, cost and delay................................................................................................. 44
Conclusion on the interests of justice as a stand-alone ground.................................. 48

S 5(1)(b)(ii) Commonwealth Act............................................................................................... 48

Issue 5: If not transferred, should 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 S Pty Ltd v BV (No 2)

Details

AGLC: S Pty Ltd v BV (No 2) [2019] VSC 814
Case: [2019] VSC 814
Decision Date: 11 December 2019

CaseChat Overview and Summary

S Pty Ltd applied to transfer an action against BV to the Family Court, seeking recovery of possession of a property. The application arose from a mortgagee’s attempt to enforce its security interest against the defendant, who had, in turn, initiated a property settlement claim under the Family Law Act 1975 (Cth) against the mortgagor, asserting that they were in a relevant de facto relationship. The Family Court’s jurisdiction to hear the property settlement proceedings was contested and remained unresolved at the time of the application. The primary legal questions the court had to address were whether the applicant could rely on the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and whether the ‘interests of justice’ provision in section 5(1)(b)(iii) could be used independently as a basis for the transfer.

The court examined the statutory framework and considered the proper construction of sections 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) and 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). It found that the applicant’s reliance on the ‘interests of justice’ was not tenable as a standalone ground. The court also noted that the jurisdictional issue in the Family Court had not been decided, and therefore, it could not be relied upon as a basis for the transfer. The court concluded that the application to transfer the proceedings to the Family Court should be refused.

The court further declined to stay the proceedings pending the resolution of the jurisdictional issue in the Family Court. The decision was grounded in the need to avoid unnecessary duplication of effort and the importance of maintaining the efficiency of the court system. No stay was granted.

Orders