Gao v Perry [2020] NSWCA 15

Gao v Perry [2020] NSWCA 15

Even if Ms Gao's appeal was properly instituted in the Court of Appeal because it initially challenged only the equity reasoning, Mr Perry's notice of contention made a Family Law Act 1975 (Cth) issue a matter for determination in the appeal. Section 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) therefore prohibited the Court of Appeal from determining the proceeding. Sections 7(7) and 7(8) did not apply because the appeal had not commenced to be heard and had not been inadvertently determined. As both parties sought transfer if the Court could not determine the appeal, the proceeding should be transferred to the Family Court of Australia.

Jurisdiction
Australia
Judgment Date
19 February 2020
Procedural Posture
Appeal From a Decision of a Single Judge of the Supreme Court of New South Wales, Equity Division, With Notice of Motion Concerning Jurisdiction or Transfer / Court of Appeal Determination of Notice of Motion in Pending Appeal
Outcome
Proceeding transferred to the Family Court of Australia; otherwise notice of motion dismissed.
Legal Topics
['appeal From Supreme Court Involving Family Law Act Matter' 'jurisdiction of Courts (cross Vesting) Act 1987 (cth) S 7' 'notice of Contention' 'transfer to Family Court of Australia' 'de Facto Relationship Property Dispute' 'undue Influence and Unconscionable Conduct']
['courts and Jurisdiction' 'appellate Procedure' 'family Law' 'equity' 'cross Vesting'] ['appeal From Supreme Court Involving Family Law Act Matter' 'jurisdiction of Courts (cross Vesting) Act 1987 (cth) S 7' 'notice of Contention' 'transfer to Family Court of Australia' 'de Facto Relationship Property Dispute' 'undue Influence and Unconscionable Conduct']

Case Brief

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Procedural Posture

Appeal From a Decision of a Single Judge of the Supreme Court of New South Wales, Equity Division, With Notice of Motion Concerning Jurisdiction or Transfer / Court of Appeal Determination of Notice of Motion in Pending Appeal

Legal Issues

  1. 1 ['Whether the Court of Appeal could determine a pending appeal after a notice of contention raised contingent findings under the Family Law Act 1975 (Cth).' 'Whether s 7 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) required the proceeding to be determined only by the Full Court of the Family Court.' 'Whether the proceeding should be transferred to the Family Court of Australia rather than dismissed.']

Ratio Decidendi

Even if Ms Gao's appeal was properly instituted in the Court of Appeal because it initially challenged only the equity reasoning, Mr Perry's notice of contention made a Family Law Act 1975 (Cth) issue a matter for determination in the appeal. Section 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) therefore prohibited the Court of Appeal from determining the proceeding. Sections 7(7) and 7(8) did not apply because the appeal had not commenced to be heard and had not been inadvertently determined. As both parties sought transfer if the Court could not determine the appeal, the proceeding should be transferred to the Family Court of Australia.

Court Disposition

Proceeding transferred to the Family Court of Australia; otherwise notice of motion dismissed.

Orders

  • ['Proceeding transferred to Family Court of Australia.' 'Otherwise dismiss notice of motion filed 4 December 2020.']