Vucic v Belosevic - [2003] SASC 296

VUCIC & ANOR v BELOSEVIC & ORS
[2003] SASC 296
Civil

DEBELLE J This is an application by the second defendant to transfer this action to the Family Court of Australia. It is made pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987. In the alternative, the second defendant applies for an order that the action be stayed as an abuse of process of the court. The second defendant also applies for an order that she be excused from filing a defence in this action or, alternatively, that she be granted an extension of time in which to file her defence.
This action was commenced on 30 January 2003. The plaintiffs are husband and wife. The second plaintiff, whom I will sometimes call Lepijana Vucic, is the daughter of the first defendant and the first plaintiff is the first defendant’s son-in-law.
There are five defendants. The first defendant is the father of Lepijana Vucic and the second defendant is his present wife. They were married in 1987 and separated in 1996. This is the second marriage for the first defendant. Lepijana Vucic is the daughter of his first marriage. The remaining three defendants are companies of which the first and second defendants are both directors and shareholders. No appearance has yet been entered in this action by or on behalf of the three defendant companies.
In this action the plaintiffs seek to recover a loan of $270,000 which they allege they made to the first defendant for the purpose of business projects to be conducted in partnership with him. They also seek to recover a Mercedes Benz motor car which, they say, they made available to the partnership business. In addition, they seek orders for the dissolution of the partnership, accounts and damages. They claim two-thirds of the assets of the partnership business.
The plaintiffs intend to amend the statement of claim in this action to allege that the second defendant has knowingly converted the Mercedes Benz to her own use and that she was knowingly concerned in the affairs of the partnership business and knowingly benefited from the failure of the first defendant to account to the plaintiffs and repay the monies lent by them to the business.
The first defendant has filed a defence in which he admits the loan of $270,000, that he and the plaintiffs were in partnership, and that the plaintiffs made the Mercedes Benz available to the partnership business. He does not oppose orders for dissolution of the partnership and accounts but denies that the plaintiffs are entitled to the share they seek.
The second defendant has not filed a defence. Instead, on 21 March 2003 she made this application to transfer the action to the Family Court. In the alternative, she has applied for an order that this action be stayed as an abuse of process. She has applied for an order excusing her from filing a defence or extending the time in which to file her defence.
On 11…

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 Vucic v Belosevic

Details

AGLC: Vucic v Belosevic [2003] SASC 296
Case: [2003] SASC 296
Decision Date: 28 August 2003

CaseChat Overview and Summary

Vucic and his wife brought an action against Vucic's father and stepmother seeking the return of a $270,000 loan, the return of a Mercedes Benz, dissolution of a partnership, accounts, and damages. The defendants sought to transfer the matter to the Family Court of Australia and for the matter to be stayed on the basis of abuse of process. They also sought an extension of time or exemption from filing a defence. The second defendant argued that the Family Court had jurisdiction over the matter as the first defendant had commenced proceedings in the Family Court for the division of property and for orders in relation to their children. The plaintiffs had applied to intervene in the Family Court proceedings and had sought orders restraining the first and second defendants from disposing of their assets. The second defendant's application to transfer the matter was dismissed. The court held that all three criteria in s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 must be satisfied for an order to be made to transfer the proceedings from the Supreme Court to the Family Court. The court also held that the application to stay the matter as an abuse of process was dismissed. The court held that the issues in the Supreme Court action and the Family Court action were distinct and unrelated. The court held that the subject matter of the two actions was different, and there were important issues of fact to be resolved in the Supreme Court action. The court held that the second defendant's allegation that the first defendant was acting in collusion with the plaintiffs to defeat her proper entitlements under the Family Law Act was not a relevant factor in determining which was the more appropriate court in which to determine the partnership claims.

The final orders were that the application to transfer the matter to the Family Court of Australia be dismissed and that the application to stay the matter as an abuse of process be dismissed. The court will hear the parties as to the appropriate time within which the second defendant should file her defence.

Orders