Skandar (aka Makari) v BSM Group Pty Ltd (as trustee for the BSM Discretionary Trust) [2017] NSWSC 610

Supreme Court New South Wales

Medium Neutral Citation: Skandar (aka Makari) v BSM Group Pty Ltd (as trustee for the BSM Discretionary Trust) [2017] NSWSC 610 Hearing dates: 25 August 2016 Date of orders: 18 May 2017 Decision date: 18 May 2017 Jurisdiction: Common Law Before: Rothman J Decision: Parties to be heard further on course to be adopted in light of the reasons Catchwords: CROSS-VESTING – loan from family trust to beneficiary's spouse during marriage – trustee sues for debt in District Court – Family Court proceedings underway – trustee raises real question of jurisdiction of Family Court to deal with the debt to it – s 90AB of Family Law Act 1975 (Cth) considered – Family Court has jurisdiction to hear debt claim but issue not without doubt – in circumstances not appropriate to transfer – alternative steps, given real possibility of inconsistent verdicts, were to stay District Court proceedings or transfer Family Court proceedings to Supreme Court – parties to be heard further Legislation Cited: Civil Procedure Act 2005 (NSW) Family Law Act 1975 (Cth) Federal Court of Australia Act 1976 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Cases Cited: Adamson v West Perth Football Club (Inc) (1979) 39 FLR 199; [1979] FCA 122 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 Kennedy v Australasian Coal & Shale Employees Federation (1983) 78 FLR 252; [1983] FCA 325 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd; United States Surgical Corp v Hospital Products International Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; [1983] HCA 36 Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 Category: Principal judgment Parties: Marcha Skandar (aka Makari) (Plaintiff) BSM Group Pty Ltd (as trustee for the BSM Discretionary Trust) (First Defendant) Bakous Makari (Second Defendant) Representation: Counsel: L Reeves (Plaintiff) E Finnane (First Defendant) Submitting appearance (Second Defendant)