S Pty Ltd v BV (No 2)

S Pty Ltd sought to transfer a proceeding for recovery of possession of a property to the Family Court, initiated by BV, who claimed to have been in a de facto relationship with the mortgagor. BV opposed the application, arguing that the Family Court lacked jurisdiction to hear the application due to the pendency of family law proceedings initiated by BV against the mortgagor. The primary legal issue was whether the applicant could rely on the Jurisdiction of Courts (Cross-Vesting Act) 1987 (Cth) to transfer the proceeding and whether the ‘interests of justice’ could be used as a standalone ground under s 5(1)(b)(iii) of the Act. The court also needed to consider the proper construction of s 5(1)(b)(ii) of the Act.

The court held that the applicant could rely on the Cross-Vesting Act to transfer the proceeding, but the ‘interests of justice’ could not be used as a standalone ground. The court noted that the Family Court's jurisdiction to hear the application was not yet determined, and it was not appropriate to decide the jurisdictional issue in the context of the transfer application. The court also found that the application for a stay of the proceeding pending determination of the jurisdiction in the Family Court was not warranted. The applicant's application for transfer was refused.

The court made no orders for a stay of the proceeding.