JUDGES:	NEAVE and SANTAMARIA JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2014
DATE OF JUDGMENT:	7 October 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 248
JUDGMENT APPEALED FROM:	Gorkowski v Turner [2014] VSC 200 (Vickery J)

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PRACTICE AND PROCEDURE - Whether application seeking a declaration for or against the title of the trustee to a trustee in bankruptcy under s 58(1)(a) of the Bankruptcy Act 1966 (Cth) is a ‘special federal matter’ within the meaning of s 6(1) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth) – Whether Supreme Court required to order transfer of matter to the Federal Court – No application made under s 6(3) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth) for the Supreme Court to hear the proceeding – Appeal allowed – Matter transferred to Federal Court.

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APPEARANCES:	Counsel
For the Applicant	Mr G T Bigmore QC	Voitin Lawyers
Mr J Kohn
For the Respondent	Mr T Greenway	AIF Lucas & Co

NEAVE JA
SANTAMARIA JA:

The applicant, Dennis Anthony Turner (as Trustee for the Bankrupt Estate of Richard J Gorkowski) seeks leave to appeal against the decision of a trial division judge holding that the Supreme Court has jurisdiction to hear and determine a claim by Mrs Gorkowski, to an interest in a property at 6 Julie Court, Ashwood (the ‘Ashwood property’) and that the matter is not a ‘special federal matter’ which the Supreme Court is required to transfer to the Federal Court under s 6(1) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth) (‘CVA’), unless it makes an order to the contrary under s 6(3).[1]
[1]The application does not appear to fall within s 13 of the CVA, which prohibits appeals ‘in relation to the transfer or removal of a proceeding under this Act’. It was not argued that it did so.

The applicant became trustee of the property of Mr Richard Gorkowski as the consequence of a sequestration order made on 14 October 2010. Richard Gorkowski is the son of Mrs Gorkowski. The applicant is now the registered proprietor of the property, following the making of orders in the Supreme Court for his registration under the Transfer of Land Act 1958. Mrs Gorkowski has a registered mortgage over the property but has not responded to enquiries by the applicant seeking to ascertain the status of the loan allegedly secured by that mortgage.

On 13 August 2013, nearly three years after the making of the sequestration order, Mrs Gorkowski filed proceedings in the Supreme Court alleging she had a beneficial interest in the Ashwood property, arising under a common intention constructive trust. In the proceedings below, the applicant contended that the court did not have jurisdiction to hear the matter because it fell within the exclusive jurisdiction of the Federal…

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 Turner v Gorkowski

Details

AGLC: Turner v Gorkowski [2014] VSCA 248
Case: [2014] VSCA 248
Decision Date: 7 October 2014

CaseChat Overview and Summary

Turner, as the trustee in bankruptcy of a bankrupt, sought a declaration that the title of the trustee in bankruptcy to certain assets was invalid. Gorkowski opposed the application. The dispute came before the Supreme Court of New South Wales. The legal issue before the court was whether the application to seek a declaration for or against the title of the trustee in bankruptcy was a 'special federal matter' within the meaning of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth). This determination would require the matter to be transferred from the Supreme Court to the Federal Court.

The court considered the nature of the dispute and the relevant legislation. The court concluded that the application was a 'special federal matter' as it involved the interpretation and application of federal bankruptcy legislation. The Supreme Court was not required to hear the proceeding unless an application was made under section 6(3) of the Jurisdiction of Courts (Cross Vesting Act) 1987 (Cth). No such application had been made. Therefore, the appeal was allowed, and the matter was transferred to the Federal Court.

The final orders of the court were that the appeal was allowed, and the matter was transferred to the Federal Court for further proceedings.

Orders