Zhang v Levingson [2023] NSWSC 1559

Zhang v Levingson [2023] NSWSC 1559

The Supreme Court transferred the proceedings because, although s 5(1)(b)(ii)(A) and (B) were not satisfied and there had been delay, the proceedings shared a common substratum of facts with the Federal Circuit and Family Court of Australia property proceedings, including whether the deed debt existed and how it affected the alleged de facto relationship property pool. The Federal Circuit and Family Court of Australia had jurisdiction to determine the controversy, and the interests of justice favoured transfer to avoid duplication, increased costs and inconsistent or multiple judgments, with conditions and costs orders addressing delay and existing defaults.

Jurisdiction
Australia
Judgment Date
08 December 2023
Procedural Posture
Procedural Ruling / Defendant's Notice of Motion Seeking Transfer of Supreme Court Proceedings to the Federal Circuit and Family Court of Australia Under the Jurisdiction of Courts (cross Vesting) Act 1987, S 5(1)
Outcome
Proceedings transferred to the Federal Circuit and Family Court of Australia to be heard with proceedings CYC858/2023.
Legal Topics
['transfer of Proceedings' 'judicial Sale of Charged Property' 'de Facto Relationship Property Adjustment' 'accrued Jurisdiction' 'costs']
['civil Procedure' 'cross Vesting Jurisdiction' 'family Law' 'equity' 'real Property'] ['transfer of Proceedings' 'judicial Sale of Charged Property' 'de Facto Relationship Property Adjustment' 'accrued Jurisdiction' 'costs']

Case Brief

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Procedural Posture

Procedural Ruling / Defendant's Notice of Motion Seeking Transfer of Supreme Court Proceedings to the Federal Circuit and Family Court of Australia Under the Jurisdiction of Courts (cross Vesting) Act 1987, S 5(1)

Legal Issues

  1. 1 ['Whether the Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(1) permitted transfer of the Supreme Court proceedings to the Federal Circuit and Family Court of Australia.' 'Whether s 5(1)(b)(ii)(A), (B) and (C) must be satisfied cumulatively, or whether the interests of justice may support transfer notwithstanding that (A) and (B) are not satisfied.' 'Whether the Federal Circuit and Family Court of Australia would have jurisdiction to finally determine the transferred Supreme Court proceedings.' 'Whether the Court should exercise its discretion to transfer the proceedings despite delay and the readiness of the Supreme Court proceedings for hearing.' 'How outstanding costs orders in the Supreme Court should be dealt with before transfer.']

Ratio Decidendi

The Supreme Court transferred the proceedings because, although s 5(1)(b)(ii)(A) and (B) were not satisfied and there had been delay, the proceedings shared a common substratum of facts with the Federal Circuit and Family Court of Australia property proceedings, including whether the deed debt existed and how it affected the alleged de facto relationship property pool. The Federal Circuit and Family Court of Australia had jurisdiction to determine the controversy, and the interests of justice favoured transfer to avoid duplication, increased costs and inconsistent or multiple judgments, with conditions and costs orders addressing delay and existing defaults.

Court Disposition

Proceedings transferred to the Federal Circuit and Family Court of Australia to be heard with proceedings CYC858/2023.

Orders

  • ['Order pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(1) that these proceedings be transferred to the Federal Circuit and Family Court of Australia with the intention that they be heard together with proceedings CYC858/2023.' 'Order that, if an undertaking is not given and it might otherwise...