Xie v Li - [2019] NSWSC 808

Supreme Court

New South Wales

Medium Neutral Citation: Xie v Li [2019] NSWSC 808
Hearing dates: 27 May 2019
Date of orders: 31 May 2019
Decision date: 31 May 2019
Jurisdiction: Equity
Before: Rein J
Decision:
(1) Notice of Motion dated 28 September 2018 is dismissed;
(2) Defendants to pay the Plaintiff’s costs on the ordinary basis, as agreed or assessed.

Catchwords:
CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Relevant factors - Application to transfer proceedings from the Supreme Court to the Family Court where applicant had already filed a cross claim in the Supreme Court – consideration of “the interests of justice” in s 5 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) – respondent’s claim (as plaintiff in the Supreme Court) based on seeking to enforce an alleged settlement agreement following earlier litigation concerning a property – applicant’s cross claim concerned claims over other assets – whether “interests of justice” to retain the proceedings in the Supreme Court;

FAMILY LAW — Matrimonial cause — Jurisdiction – applicant and respondent separated, awaiting finalisation of divorce – whether Supreme Court has jurisdiction to hear matrimonial causes by reason of s 4 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) - whether a claim to recover the amount owing under a settlement agreement following earlier litigation over matrimonial property would itself be considered a matrimonial cause – whether the property the subject of the dispute can be said to have arisen “out of the marital relationship” as per the definition of “matrimonial cause” in Family Law Act 1975 (Cth) s 4;
COSTS — Security for costs — respondent a natural person - whether respondent resident in the jurisdiction; held: respondent resident in the jurisdiction.
Legislation Cited: Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
Cases Cited: Aspinall v Aqua Sports Pty Ltd [2018] NSWSC 706
Eberstaller v Poulos [2014] NSWCA 211; 87 NSWLR 394
Stanford v Stanford [2012] HCA 52; 247 CLR 108
Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36
Young v Lalic [2006] NSWSC 18; 197 FLR 27
Texts Cited: Nil
Category: Procedural and other rulings
Parties: Guanghua Xie (Plaintiff/Respondent)
Xiazhen Li (First Defendant/Applicant)
Peter Ping Xie (Second Defendant/Applicant)
Yu Xie (Third Defendant/Applicant)
JCD Business Solutions Pty Ltd (Fourth Defendant/Applicant)
Representation:
Counsel:
Mr E. A. J. Hyde (Plaintiff/Respondent)
Mr I. R. Coleman S.C. (Defendants/Applicants)
Solicitors:
Mr William Wen Bo Wang, WB Legal Pty Ltd (Solicitor for the Plaintiff/Respondent)
Mr Yu Chen (Solicitor for the First to Fourth Defendants/Applicants)

File Number(s): 2018/00275374
Publication restriction: Nil

Judgment

The Plaintiff Mr Guanghua Xie (“Mr Xie”) in these proceedings sues Xiazhen Li (“Ms Li”), Peter Ping Xie (“Peter”), Yu Xie (“Yu”) and JCD Business Solutions Pty Ltd (“JCD”) in connection with an agreement he maintains he reached with the Defendants in July 2016. Mr Xie claims that the Defendants agreed to pay him $1.8…

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 Xie v Li

Details

AGLC: Xie v Li [2019] NSWSC 808
Case: [2019] NSWSC 808
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Xie v Li involved a dispute between the applicant, Xie, and the respondent, Li, concerning the transfer of proceedings from the Supreme Court to the Family Court of Australia. Xie sought to transfer the proceedings on the basis of the "interests of justice" under section 5 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). Li, who had filed a claim to enforce an alleged settlement agreement following earlier litigation over matrimonial property, opposed the transfer. The legal issues revolved around whether the Supreme Court had jurisdiction to hear the case as a matrimonial cause, and whether the "interests of justice" supported retaining the proceedings in the Supreme Court.

The court examined the criteria for transferring proceedings, focusing on the "interests of justice" and the nature of the respondent’s claim. It considered whether Li’s claim to enforce a settlement agreement was a matrimonial cause and whether the property in dispute arose out of the marital relationship. The court also assessed the implications of Xie's cross claim concerning other assets and whether these factors justified retaining the proceedings in the Supreme Court.

In its decision, the court determined that the respondent, Li, was a resident of the jurisdiction, which was a relevant factor under the security for costs provisions. The court concluded that the "interests of justice" did not favour retaining the proceedings in the Supreme Court, primarily because the respondent's claim to enforce a settlement agreement did not inherently constitute a matrimonial cause. The court held that the claim related to property that arose out of the marital relationship, aligning with the definition in the Family Law Act 1975 (Cth). Consequently, the court ordered the transfer of proceedings to the Family Court of Australia.

The final orders of the court included the transfer of the proceedings to the Family Court of Australia and a determination that the respondent was a resident of the jurisdiction for the purposes of security for costs.

Orders