Zemin & Kaba (No 2)

In Zemin & Kaba (No 2), the applicant, Ms Zemin, sought the transfer of proceedings from Division 2 of the Federal Circuit and Family Court of Australia to Division 1, on the basis that the latter court has jurisdiction to make orders under the Corporations Act 2001 (Cth) in relation to the reinstatement of a corporate trustee of a self-managed superannuation fund. The respondent, Mr Kaba, did not oppose the transfer. The dispute involved complex property settlement issues, including the management and compliance of a self-managed superannuation fund that held property in Victoria, which was subject to foreclosure by a mortgagee. The Court had already made final property orders and appointed a receiver to ensure compliance and to facilitate the division of the property. The application for transfer was necessitated by the deregistration of the corporate trustee for non-payment of ASIC fees, rendering the previous orders ineffective.

The court was required to decide whether the transfer of the proceedings from Division 2 to Division 1 was warranted under section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The legal issue centred on whether Division 1 of the Court had the requisite jurisdiction under the Corporations Act 2001 (Cth) to make the reinstatement order, which Division 2 did not possess. Additionally, the Court had to consider whether the transfer was in the interests of the administration of justice, taking into account the factors outlined in section 149(3) of the FCFCOA Act.

Judge Street held that the transfer was appropriate. Division One of the Court, unlike Division Two, has the power to make reinstatement orders under the Corporations Act 2001 (Cth). The Court found that the transfer was necessary to ensure that the orders could be effectively implemented. The Court noted that the Chief Justice had given permission for the transfer and that all relevant criteria under section 149(3) of the FCFCOA Act were satisfied. The internal protocol for supervision from the Chief Justice was also complied with. Consequently, the Court ordered the transfer of the matter to Division 1 of the Federal Circuit and Family Court of Australia.