MJM v DT [2020] NSWSC 1881

MJM v DT [2020] NSWSC 1881

The notice of motion was dismissed because it was not more appropriate in the interests of justice for the possession proceedings to be determined by the Family Court, and a stay was not justified. The apartment was the principal readily saleable asset available to fund MJM's care, while the suggested alternatives involving Lexamarque, the Croydon boarding house and discretionary trusts could not be accessed by Ms Huntington in a reasonably certain and timely way. DT had already sought interim relief in the Family Court that, if granted, would achieve the interlocutory protection he sought, and this Court should not preserve the apartment in specie for a collateral purpose when it would...

Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Equity Duty List Proceedings Seeking Possession of an Apartment; Notice of Motion for Cross Vesting Transfer to the Family Court of Australia or Stay / Interlocutory Application by Notice of Motion Filed on 7 December 2020
Outcome
DT's notice of motion was dismissed.
Legal Topics
['cross Vesting Transfer' 'stay of Proceedings' 'possession of Premises' 'financial Management of Protected Estate' 'de Facto Relationship Property Proceedings' "directors' Powers and Shareholder Voting Control" 'discretionary Trusts']
['civil Procedure' 'corporations' 'family Law' 'protective Jurisdiction'] ['cross Vesting Transfer' 'stay of Proceedings' 'possession of Premises' 'financial Management of Protected Estate' 'de Facto Relationship Property Proceedings' "directors' Powers and Shareholder Voting Control" 'discretionary Trusts']

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Procedural Posture

Equity Duty List Proceedings Seeking Possession of an Apartment; Notice of Motion for Cross Vesting Transfer to the Family Court of Australia or Stay / Interlocutory Application by Notice of Motion Filed on 7 December 2020

Legal Issues

  1. 1 ['Whether the summons seeking possession of the Potts Point apartment should be transferred to the Family Court of Australia under s 5 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).' 'Whether the Supreme Court proceedings should alternatively be stayed pending determination of the Family Court proceedings.' "Whether the apartment was the only readily realisable substantial asset available to fund MJM's care needs." "Whether MJM's share in Lexamarque Pty Ltd or potential benefits from discretionary trusts provided a practical alternative source of funds." 'Whether interim relief in the Family Court could achieve the practical interlocutory outcome sought by DT.']

Ratio Decidendi

The notice of motion was dismissed because it was not more appropriate in the interests of justice for the possession proceedings to be determined by the Family Court, and a stay was not justified. The apartment was the principal readily saleable asset available to fund MJM's care, while the suggested alternatives involving Lexamarque, the Croydon boarding house and discretionary trusts could not be accessed by Ms Huntington in a reasonably certain and timely way. DT had already sought interim relief in the Family Court that, if granted, would achieve the interlocutory protection he sought, and this Court should not preserve the apartment in specie for a collateral purpose when it would...

Court Disposition

DT's notice of motion was dismissed.

Orders

  • ["Order that DT's notice of motion be dismissed." 'DT was given the opportunity to advise whether he wished to challenge the proposed costs outcome.' 'The parties were directed to confer and advise the Associate about the period for DT to vacate the apartment.']