ANZ v Ebsworth [2015] NSWSC 1456

Supreme Court New South Wales

Medium Neutral Citation: ANZ v Ebsworth [2015] NSWSC 1456 Hearing dates: 14 August 2015 Decision date: 02 October 2015 Jurisdiction: Common Law Before: Hall J Decision: First and Second Defendants' Notice of Motion, dated and filed 18 June 2015, is dismissed. Catchwords: PROCEDURE – Civil – Interlocutory issues – Cross-vesting – Application to have proceedings transferred to Family Court of Australia under s 5(1)(b)(ii) Jurisdiction of Courts (Cross-vesting) Act 1987 – Possession claim by plaintiff lender/mortgagee in Supreme Court – Proceedings subsequently commenced in the Family Court by second defendant to set aside Binding Financial Agreement entered into under s 90UD Family Law Act 1975 (Cth) – Whether Family Court has jurisdiction in respect of the proceedings commenced by the plaintiff – Whether there existed only one justiciable controversy – Whether common substratum of facts – Held that the two proceedings involved two separate controversies – Supreme Court proceedings involved different parties, transactions and property to Family Court proceedings – Property securing certain of the loan facilities in respect of which the plaintiff sought an order for possession was not property of the de facto partners but was property of the first defendant, sister to the second defendant - Family Court did not have accrued jurisdiction to hear possession dispute involving multiple third parties to the Family Court proceedings – It would not be in the interests of justice to transfer the proceedings – Application for transfer dismissed Legislation Cited: Australian Securities and Investment Commission Act 2011 (Cth) Contracts Review Act 1980 Family Law Act 1975 (Cth) Judiciary Act 1903 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 Cases Cited: Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339 Commonwealth Bank of Australia v Newhook [2015] NSWSC 41; (2015) 52 Fam LR 100 Fencott v Muller (1983) 152 CLR 570 In the Marriage of Warby (2001) 166 FLR 319 Rayhill v Lewis (Family Court of Australia, unreported, 8 March 2005) Re Wakim; ex parte McNally (1999) 198 CLR 511 Valceski v Valceski [2007] NSWSC 440; 70 NSWLR 36 Category: Procedural and other rulings Parties: Australia and New Zealand Banking Group Limited (Plaintiff/Respondent) Marion Norma Ebsworth (First Defendant/Applicant) Gaye Daphne Davies (Second Defendant/Applicant) Representation: Counsel: MA Ashhurst SC; CE Bannan (Plaintiff/Respondent) BK Nolan (Defendants/Applicants)