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Zhang v Levingson

Zhang v Levingson

Case [2023] NSWSC 1559 8 December 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Zhang v Levingson [2023] NSWSC 1559
Hearing dates: 8 December 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Transfer proceedings to the Federal Circuit and Family Court of Australia to be heard with proceedings CYC858/2023.

Catchwords: JURISDICTION — the plaintiff made financial advances to the defendant under a deed of loan granting a charge over real property of the defendant – where the defendant claims the plaintiff’s advances are not repayable – where the plaintiff seeks judicial sale of property under a charge – where other proceedings initiated by the defendant are on foot in the Federal Circuit and Family Court of Australia between the plaintiff’s daughter and the defendant under Family Law Act 1975, s 90SM – defendant seeks transfer of these Supreme Court proceedings to the Federal Circuit and Family Court of Australia under the Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(1) (“the Cross Vesting Act”) to be heard together with the Family Court proceedings – transfer opposed by the plaintiff – whether the Cross Vesting Act allows the transfer and whether the Court should exercise its discretion to transfer the proceedings.
Legislation Cited:
Civil Procedure Act 2005, ss 98(4)(c),100, Part 6
Jurisdiction of Courts (Cross-Vesting) Act 1987, ss 5(1)(b)(ii)(A), (B),(C)
Family Law Act 1975, ss 9AE, 90SM, 90TA, 106B

Cases Cited:
Aspinall v Aqua Sports Pty Ltd [2018] NSWSC 706
Bob Jane Corporation Pty Ltd v Jane [2014] VSC 27
Burman v Zillman [2017] NSWSC 229
Caltex Australia Petroleum Pty Ltd v Calypso Haulage Pty Ltd [2003] VSC 359
Hurst v Koszewski [2019] SASC 67
Jane v Jane [2008] VSC 341
Kosmopoulos v Kosmopoulos [2008] VSC 402
Lew v Priester [2012] VSC 57
Re Wakim; Ex parte McNally (1999) 198 CLR 511
S Pty Limited v BV (No 2) [2019] VSC 814
Tucker v The State of Victoria [2018] VSC 389
Valceski vValceski (2007) 70 NSWLR 36
Vucic v Belosevic [2003] SASC 296
Wurz bht NSW Trustee & Guardian v Elawaad [2022] NSWSC 1404

Category: Procedural rulings
Parties: Plaintiff/Respondent: Xiufen Zhang
Defendant/Applicant: Richard Levingson
Representation:
Counsel:
Plaintiff/Respondent: S. Epstein SC
Defendant/Applicant: M. Bennett
Solicitors:
Plaintiff/Respondent: n/a
Defendant/Applicant: Mark Geoffrey Streeter, Streeterlaw Law Firm

File Number(s): 2023/82623
Publication restriction: No

EX TEMPORE Judgment

Ms Xiufen Zhang (“Ms Zhang”) the Plaintiff, seeks in these proceedings the judicial sale of certain property in Surry Hills owned by the Defendant, Mr Richard Levingson (“Mr Levingson”). Ms Zhang claims that the Surry Hills property is charged with the repayment of advances of approximately $388,000 that she made to Mr Levingson.
Mr Levingson was, for a period of time, in a close personal relationship with Ms Zhang's daughter, Miss Lei Wang (“Ms Wang”) when the advances were made. Mr Levingson claims that he was in a de facto relationship with Miss Wang and has commenced proceedings in the Federal Circuit Court and Family Court of Australia for adjustment…

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 Zhang v Levingson

Details

AGLC: Zhang v Levingson [2023] NSWSC 1559
Case: [2023] NSWSC 1559
Decision Date: 08 December 2023

CaseChat Overview and Summary

In the case of Zhang v Levingson, the plaintiff, Zhang, had provided financial advances to the defendant, Levingson, secured by a charge over Levingson's property. Zhang sought to enforce the repayment of these advances through a judicial sale of the property. Levingson, however, contested the repayment and requested the transfer of the Supreme Court proceedings to the Federal Circuit and Family Court of Australia, where separate proceedings between Zhang's daughter and Levingson were ongoing under the Family Law Act 1975. Levingson's request for transfer was based on the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987, specifically section 5(1), and was opposed by Zhang.

The legal issues before the court were whether the Cross Vesting Act permits the transfer of the Supreme Court proceedings to the Federal Circuit and Family Court and whether the court should exercise its discretion to order such a transfer. The court had to consider the statutory framework, the nature of the disputes, and the potential for judicial efficiency in determining its decision.

The court found that the Cross Vesting Act does allow for the transfer of proceedings between the Supreme Court and the Federal Circuit and Family Court under certain circumstances. However, the court also recognised that the exercise of this discretion is not automatic and must be considered in light of the specific facts of each case. In this instance, the court determined that while the issues in both sets of proceedings had some connection, they were not sufficiently intertwined to warrant a transfer. The court concluded that maintaining the proceedings in the Supreme Court was in the interests of judicial efficiency and the fair administration of justice.

As a result, the court dismissed Levingson's application for the transfer of the proceedings, allowing the Supreme Court to proceed with the enforcement of the loan repayment. The court's decision underscored the importance of considering the broader context and implications of any proposed transfer under the Cross Vesting Act.

Orders