Hearing Date: 21 May 2012
Decision Date: 24 May 2012
Judgment: S G Campbell J
PROCEDURE – cross-vesting application –Jurisdiction of Courts (Cross-vesting) Act 1987(NSW) – Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – registered mortgagee of Torens Title land seeks possession – applicant in Family Court proceedings seeks to set aside mortgage – order seeking transfer of proceedings from Supreme Court of New South Wales to Family Court of Australia – whether it is more appropriate that the State proceeding be determined by the Family Court – whether Family Court has accrued jurisdiction to determine the proceeding in the exercise of Federal jurisdiction – whether it is in the interests of justice to transfer the matter – orders for transfer made.
30. I have formed a strong impression as a matter of practical judgment that the present plaintiff’s non-federal claim is within the scope of the controversy between the applicant and the defendant about their matrimonial financial relations. I am fortified in this view by what I regard as a very salient feature of the genesis of the plaintiff’s proceedings. Notwithstanding what the plaintiff’s solicitor deposes the evidence of the plaintiff will be at any hearing about the inception of the defendant’s liability, the legal formalisation of the transaction by way of signed mortgage in registrable form, the payment of stamp duty and the registration of the dealing did not occur, on any objective view, until the marriage of the applicant and the defendant had broken down and battle lines had been drawn as to their financial relationship. This finding establishes the accrued jurisdiction of the Family Court, the availability of which cannot seriously be doubted: Valceski at 57.
35. The loan said to be secured by what may have been originally an equitable mortgage created by the deposit of the Certificate of Title is said to have been advanced, as I have said, partly in 1988, and partly in 1990. The written acknowledgment expresses the loan to be repayable “on demand”. Like Vaughan v. Frost  NSW SC 492, decided by White J, the plaintiff waited until there was a breakdown in the …. matrimonial relationship before bringing [the] claim. (Vaughan at ). Again, as in Vaughan, there is no evidence that the plaintiff ever asserted any entitlement to the applicant, his daughter-in-law over the more than two decades during which the loan agreement was said to subsist. Indeed, the evidence before me is to the contrary. Other than the breakdown in the marriage of the defendant and the applicant, there is no change in circumstance which accounts for the timing of the proceedings in this Court. In all the circumstances I do not regard any additional time that might be taken in the Family Court to countervail the other factors to which I have referred.