Read v McEwen & Anor (No 2) [2007] NSWSC 862

New South Wales Supreme Court

CITATION : Read v McEwen & Anor (No 2) [2007] NSWSC 862

HEARING DATE(S) : 26 July 2007 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 26 July 2007

DECISION : Transfer refused.

CATCHWORDS : PROCEDURE - Transfers to District and Local Courts - Whether proceeding could properly have been commenced in District Court in terms of the Civil Procedure Act 2005, s 146 - Claim to equitable charge over land

LEGISLATION CITED : Civil Procedure Act 2005

Yvonne Read - Plaintiff PARTIES : Jeffrey John McEwen - First Defendant Jedda Kylie McEwen - Second Defendant

FILE NUMBER(S) : SC 1598/07

COUNSEL : Mr DA Smallbone/ Mr J Cohen - Plaintiff Ms M Dulhunty - First and Second Defendants

SOLICITORS : Michael Lewis & Associates Solicitors - Plaintiff Coyne & Whittemore - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

THURSDAY 26 JULY 2007

1598/07 YVONNE READ v JEFFREY JOHN McEWEN & ANOR (NO 2) EX TEMPORE JUDGMENT 1 I have an application before me by Mr and Mrs McEwen, the defendants, to transfer these proceedings to the District Court. 2 While the Civil Procedure Act 2005, s 149 provides that the lower court has, and may exercise, all of the jurisdiction of the higher court in relation to any proceedings to which a transfer order relates, s 146 enables the Supreme Court to transfer proceedings to the District Court if it is satisfied that the proceedings could properly have been commenced in the District Court. 3 One issue that is joined between the parties is the claim by Yvonne Read, the plaintiff, that there is an equitable charge over land. Ms Dulhunty appears for Mr and Mrs McEwen. She has not established to my satisfaction that that claim could have been raised in proceedings commenced in the District Court. 4 I therefore rejected application to transfer these proceedings to the District Court.