Zeiher v Holder - [2014] NSWCA 334

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Zeiher v Holder [2014] NSWCA 334
Hearing dates: 17 and 23 September 2014
Decision date: 26 September 2014
Before: Beazley P
Decision:
(1) Notice of motion dismissed with costs;
(2) Summons for leave to appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: COURTS - jurisdiction - prohibition on instituting and determining appeal other than in Full Court of Family Court - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(5) - where de facto financial cause proceedings instituted in Family Court - whether proceedings were a matter arising under the Family Law Act 1975 (Cth) - meaning of "a matter"
COURTS - jurisdiction - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(7) - whether court had commenced to hear a proceeding by way of an appeal - where court had heard notice of motion brought prior to the hearing of the summons for leave to appeal
Legislation Cited: Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392
Eberstaller v Poulos [2014] NSWCA 211
Grace v Grace [2014] NSWCA 86; 284 FLR 94
Macchia v The Public Trustee [2008] WASCA 241; 251 ALR 385
Re Wakim [1999] HCA 27; 198 CLR 511
Category: Principal judgment
Parties: Felicity Zeiher (Applicant)
Mark Christopher Holder (Respondent)
Representation: Counsel:
In person (Applicant)
D Perrignon (Respondent)
Solicitors:
In person (Applicant)
Mills Oakley Lawyers (Respondent)

File Number(s): 2014/271649
Decision under appeal

Jurisdiction:

9111

Citation:

Holder v Zeiher [2014] NSWSC 556

Date of Decision:

2014-05-14 00:00:00

Before:

Davies J

File Number(s):

2013/312016

Judgment

HER HONOUR: On 14 May 2014, Davies J ordered that the defence filed by the applicant (Ms Zeiher) in proceedings brought by the respondent (Mr Holder) to gain possession of property at Londonderry that he owns (the property) and which is occupied by Ms Zeiher, be struck out. His Honour also made an order for possession of the property and gave leave to Mr Holder to issue writ to enforce the judgment of the Court. The writ was not to be executed before 25 July 2014 to allow Ms Zeiher to inform his Honour of the status of proceedings she had brought in the Family Court and/or the stage of any negotiations between the parties for her to purchase the property.

On 18 July 2014, Davies J refused any extension of the stay of the writ of possession as he was not satisfied that Ms Zeiher had acted expeditiously in relation…

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 Zeiher v Holder

Details

AGLC: Zeiher v Holder [2014] NSWCA 334
Case: [2014] NSWCA 334
Decision Date: 26 September 2014

CaseChat Overview and Summary

In *Zeiher v Holder*, the Full Court of the Family Court of Australia considered the jurisdiction of the court in relation to an appeal concerning de facto financial cause proceedings. The primary dispute involved whether the proceedings instituted in the Family Court were a "matter arising under the Family Law Act 1975 (Cth)" for the purposes of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

The legal issues before the Full Court were twofold. Firstly, it had to determine the meaning of "a matter" in section 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), specifically whether de facto financial cause proceedings fell within this definition. Secondly, the Court was required to consider whether it had commenced to hear a proceeding by way of an appeal, pursuant to section 7(7) of the same Act, given that a notice of motion had been heard prior to the summons for leave to appeal.

The Court reasoned that the de facto financial cause proceedings were indeed matters arising under the Family Law Act 1975 (Cth). This interpretation was crucial for determining the application of section 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), which prohibits the institution and determination of such appeals other than in the Full Court. The Court also found that the hearing of the notice of motion did not constitute the commencement of the hearing of the appeal for the purposes of section 7(7).

Consequently, the Full Court dismissed the notice of motion and the summons for leave to appeal, ordering that the respondent recover their costs in both instances.

Orders

Orders of the court

(1) Notice of motion dismissed with costs;

(2) Summons for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Zeiher v Holder [2014] NSWCA 334
Hearing dates:	17 and 23 September 2014
Decision date:	26 September 2014
Before:	Beazley P
Decision:	(1) Notice of motion dismissed with costs; (2) Summons for leave to appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COURTS - jurisdiction - prohibition on instituting and determining appeal other than in Full Court of Family Court - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(5) - where de facto financial cause proceedings instituted in Family Court - whether proceedings were a matter arising under the Family Law Act 1975 (Cth) - meaning of "a matter" COURTS - jurisdiction - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(7) - whether court had commenced to hear a proceeding by way of an appeal - where court had heard notice of motion brought prior to the hearing of the summons for leave to appeal
Legislation Cited:	Family Law Act 1975 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Uniform Civil Procedure Rules 2005
Cases Cited:	Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392 Eberstaller v Poulos [2014] NSWCA 211 Grace v Grace [2014] NSWCA 86; 284 FLR 94 Macchia v The Public Trustee [2008] WASCA 241; 251 ALR 385 Re Wakim [1999] HCA 27; 198 CLR 511
Category:	Principal judgment
Parties:	Felicity Zeiher (Applicant) Mark Christopher Holder (Respondent)
Representation:	Counsel: In person (Applicant) D Perrignon (Respondent) Solicitors: In person (Applicant) Mills Oakley Lawyers (Respondent)
File Number(s):	2014/271649
Decision under appeal	Jurisdiction: 9111 Citation: Holder v Zeiher [2014] NSWSC 556 Date of Decision: 2014-05-14 00:00:00 Before: Davies J File Number(s): 2013/312016