Burman v Zillman [2017] NSWSC 229

Burman v Zillman [2017] NSWSC 229

The Supreme Court held that the issues in the Supreme Court proceedings and the Family Court proceedings formed part of a single justiciable controversy concerning the Turramurra property. The Family Court proceedings were a matrimonial cause involving property adjustment under the Family Law Act, and the dispute with the plaintiffs over the mortgage, caveat, loan debt and sale proceeds overlapped substantially with the issues in those proceedings. It was not seriously arguable that the Family Court would lack accrued jurisdiction. Although factors in s 5(1)(b)(ii)(A) and (B) favoured the Supreme Court, the interests of justice strongly favoured determination of all issues in one Family...

Jurisdiction
Australia
Judgment Date
08 March 2009
Procedural Posture
Equity Proceedings Concerning Alleged Loan and Unregistered Mortgage; Application for Transfer Under Cross Vesting Legislation / Notice of Motion by the First Defendant Seeking Transfer to the Family Court of Australia
Outcome
Proceedings transferred to the Family Court of Australia.
Legal Topics
['transfer of Proceedings' 'accrued Jurisdiction of the Family Court of Australia' 'single Justiciable Controversy' 'interests of Justice' 'loan Agreement and Unregistered Mortgage' 'contracts Review Act Relief']
['practice and Procedure' 'cross Vesting' 'family Law' 'equity' 'contracts'] ['transfer of Proceedings' 'accrued Jurisdiction of the Family Court of Australia' 'single Justiciable Controversy' 'interests of Justice' 'loan Agreement and Unregistered Mortgage' 'contracts Review Act Relief']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings Concerning Alleged Loan and Unregistered Mortgage; Application for Transfer Under Cross Vesting Legislation / Notice of Motion by the First Defendant Seeking Transfer to the Family Court of Australia

Legal Issues

  1. 1 ['Whether the Supreme Court proceedings should be transferred to the Family Court of Australia under s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).' 'Whether the Supreme Court proceedings arise out of or are related to Family Court proceedings and whether it is more appropriate for the Family Court to determine them.' 'Whether the Family Court would have accrued jurisdiction to determine the claims concerning the loan, mortgage, caveat and Turramurra property.' 'Whether the interests of justice favour one proceeding in one court to avoid duplication, additional costs and inconsistent findings.']

Ratio Decidendi

The Supreme Court held that the issues in the Supreme Court proceedings and the Family Court proceedings formed part of a single justiciable controversy concerning the Turramurra property. The Family Court proceedings were a matrimonial cause involving property adjustment under the Family Law Act, and the dispute with the plaintiffs over the mortgage, caveat, loan debt and sale proceeds overlapped substantially with the issues in those proceedings. It was not seriously arguable that the Family Court would lack accrued jurisdiction. Although factors in s 5(1)(b)(ii)(A) and (B) favoured the Supreme Court, the interests of justice strongly favoured determination of all issues in one Family...

Court Disposition

Proceedings transferred to the Family Court of Australia.

Orders

  • ['Orders 1, 2 and 3 as sought in the Notice of Motion were made.' 'The proceedings were transferred to the Family Court of Australia.']