ANZ v Ebsworth [2015] NSWSC 1456

ANZ v Ebsworth [2015] NSWSC 1456

The transfer application was dismissed because the Supreme Court proceedings and the Family Court proceedings involved two separate controversies rather than one justiciable controversy. The ANZ proceedings concerned later loan, guarantee, indemnity, mortgage and possession claims involving ANZ, Ms Davies and Ms Ebsworth, including the Narrawallee property owned by Ms Ebsworth, while the Family Court proceedings concerned the Binding Financial Agreement between Ms Davies and Mr Murphy and adjustment of de facto property interests. The claims did not arise out of common transactions or a common substratum of facts, the Family Court did not have jurisdiction to determine the rights between...

Jurisdiction
Australia
Judgment Date
02 October 2015
Procedural Posture
Application to Transfer Supreme Court Possession Proceedings to the Family Court of Australia Under S 5(1)(b)(ii) of the Jurisdiction of Courts (cross Vesting) Act 1987 (nsw) / Interlocutory Notice of Motion
Outcome
First and Second Defendants' Notice of Motion dated and filed 18 June 2015 dismissed.
Legal Topics
['transfer of Proceedings' 'accrued Jurisdiction of the Family Court' 'single Justiciable Controversy' 'binding Financial Agreement' 'mortgagee Possession Claim' 'contracts Review Act Unjust Contract Defence' 'unconscionable Conduct']
['civil Procedure' 'cross Vesting' 'family Law' 'banking and Finance' 'mortgages and Possession'] ['transfer of Proceedings' 'accrued Jurisdiction of the Family Court' 'single Justiciable Controversy' 'binding Financial Agreement' 'mortgagee Possession Claim' 'contracts Review Act Unjust Contract Defence' 'unconscionable Conduct']

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Procedural Posture

Application to Transfer Supreme Court Possession Proceedings to the Family Court of Australia Under S 5(1)(b)(ii) of the Jurisdiction of Courts (cross Vesting) Act 1987 (nsw) / Interlocutory Notice of Motion

Legal Issues

  1. 1 ['Whether the Supreme Court proceedings should be transferred to the Family Court of Australia under s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).' "Whether the Family Court had jurisdiction, including accrued jurisdiction, to determine ANZ's possession and debt claims involving Ms Davies, Ms Ebsworth and third parties." 'Whether the Supreme Court proceedings and the Family Court proceedings formed one justiciable controversy or arose from common transactions or a common substratum of facts.' 'Whether the interests of justice made it more appropriate for the Family Court to determine the proceedings.']

Ratio Decidendi

The transfer application was dismissed because the Supreme Court proceedings and the Family Court proceedings involved two separate controversies rather than one justiciable controversy. The ANZ proceedings concerned later loan, guarantee, indemnity, mortgage and possession claims involving ANZ, Ms Davies and Ms Ebsworth, including the Narrawallee property owned by Ms Ebsworth, while the Family Court proceedings concerned the Binding Financial Agreement between Ms Davies and Mr Murphy and adjustment of de facto property interests. The claims did not arise out of common transactions or a common substratum of facts, the Family Court did not have jurisdiction to determine the rights between...

Court Disposition

First and Second Defendants' Notice of Motion dated and filed 18 June 2015 dismissed.

Orders

  • ["The first and second defendants' Notice of Motion dated and filed 18 June 2015 is dismissed." 'The Court will hear the parties in relation to any consequential orders, including costs, and in relation to case management of the proceedings.']