Aon Risk Services Australia Ltd v Australian National University

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vilas & Vilas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By an Application in a Proceeding filed 19 September 2025 and sealed 22 September 2025, B1 Pty Ltd ("B1 Pty Ltd") and B2 Ltd (as trustee for the M Unit Trust) ("B2 Pty Ltd") (jointly "the B companies") seek a finding that this court does not have jurisdiction to hear and determine proceedings [redacted] commenced by Summons in the Supreme Court of New South Wales in March 2020 ("the State matter"), and transferred to this Court pursuant to s 5(1) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the Cross Vesting Act") in May 2020.
2. On that basis the B companies seek an order for remittance of the, part-heard, State matter back to the Supreme Court of New South Wales.
3. The transfer to this Court from the Supreme Court of New South Wales was at the application of two of the then three defendants, J Pty Ltd (J Pty Ltd) and Mr Vilas ("the husband"). The third defendant was Ms Vilas, now Ms Aisa, ("the wife"). The transfer application was opposed by the then plaintiffs, B1 Pty Ltd and Mr Kilian ("Mr Kilian"). Mr Kilian is the wife's father.[1]
4. After a contested hearing, the short reasons for transfer from the Supreme Court of New South Wales to this court were recorded as:[2]

Having read evidence and the respective submissions of the parties, I consider that it is in the interests of justice in these proceedings that the transfer occur. The plaintiff has not filed a Commercial List Statement, but it is clear that the present dispute has a very close connection with the parties and the proceedings pending in the Family Court so that the Court is the natural forum for determination of the dispute which forms the basis of these proceedings. The proceedings were not irregularly commenced hence I consider the costs of the Motion should be reserved, which order has the effect that the costs issue will be determined by the Family Court.

1. The present application is supported by an affidavit of the solicitor for the B companies filed 19 September 2025. That solicitor has acted for the B companies, and their director Mr Kilian, from the commencement of the State proceedings. Mr Kilian was a party to the State matter when they were transferred to this court, but B companies was later substituted for Mr Kilian. The solicitor says he was "made aware" of the jurisdictional issue on about 15 September 2025. The reason for delay is not explained. Delay is not a defence to the application, no matter how tardy, where jurisdiction is in issue.
2. The application is opposed by the current defendants to the State matter. They are the husband, and two corporate entities he controls J Pty Ltd and H Pty Ltd, in its own right and in its capacity as Trustee for the M Unit Trust (M Unit Trust). The corporate defendants are part of the larger Vilas Group and are all controlled by the husband. They were formerly controlled by the husband and the wife. They own and operate the spouse parties' businesses. The spouse parties are, or were, both registered health professionals.
3. The wife was originally a defendant to the State matter. The plaintiffs removed her. The reason for her removal by the plaintiffs is controversial. It is said by the defendants to be because the State proceedings are nothing more than the wife's father seeking to circumvent or defeat the matrimonial proceedings between the husband and wife, and to recover a large portion of the the matrimonial pool to re-gift it to the wife.
4. By the current Amended Statement of Claim the B companies seek repayment of a loan in the principal amount of $1,000,000 plus interest, and for the repayment of a further loan of $125,000, and to recover $1,242,000 in respect of unpaid rent (including substantial interest) and recover $108,300 in respect of unpaid outgoings.
5. The State matter is being heard together with the matrimonial cause for financial relief NCC3703/2019, commenced by the husband against the wife pursuant to Part VIII of the Family Law Act 1975 (Cth) ("the Act") in this Court on 23 March 2020 ("the matrimonial property cause") and added to the then pending parenting proceeding commenced in 2019. The parenting proceeding resolved by consent on day one of a final hearing before me. That hearing was bifurcated due to delays in the preparation of the State matter and the matrimonial property cause.
6. The husband and wife commenced cohabiting in 2005, were married in 2006, separated in November 2019, and divorced in 2021. The spouse parties have two children, Ms X now an adult and Y now 14. There is no issue the matrimonial property cause is properly commenced in this court.
7. The present parties to the matrimonial property cause are the husband, the wife, J Pty Ltd, M Unit Trust and the B companies. The B companies were joined by the husband, J Pty Ltd and M Unit Trust, seeking relief against them under s 90AE of the Act.
8. The spouse parties are, or were at the relevant times, registered health professionals. Through the defendant companies and other entities (together "the Vilas Group") they operate, or operated, the "M Business" (the "M business") and the N Business ("the N business"). The Vilas Group also owns the commercial property at AB Street, Suburb O ("AB Street") from which the M business operates and the commercial property at AC Street , Suburb P ("AC Street ") from which the N business operates.
9. There is no issue funds were advanced. The issue is the proper characterisation of the advances of $1,000,000 and $125,000. The advances were provided to help the spouse parties in particular with their businesses.
10. One of the matters the defendants rely on, and have relied on from the commencement of the matrimonial property proceedings, is an email from the wife to him on 6 September 2017 which said:[3]

Today I had a conversation with Dad. The following points were discussed:

We only owe $125,000 of rent for [suburb O] and $100000 separately for the business.

We are

Currently paying $3,584 per month in interest to him and have been doing so for the last 51 months. He said he would like us to pay him back the money we owe (1125000) over the next 18 months. I told him that it would take us over 10 years to earn that money so we would have to take out another loan. I told him that we are currently earning somewhere between $100,200000 per year and that we are both working full time. I told him that we feel he has led us on over the years and then dumped us with his problem (the auditor) making us pay him the rent owed all at once. I told him, that he has been causing us massive amounts of stress. I reminded him that stress is not good for anyone's health. I told him my IPAH has gotten considerably worse over the last 3 months. He told me that his AF is getting better.

(Emphasis as per the original)

1. The reference to "the auditor" is a reference to other documentary evidence the defendants rely on to argue that the only reason there were references to loans and repayments was because the B companies were subject to audit and cover was required.
2. The husband and defendants also rely on an alleged conversation with the wife in which he says she told him in April 2018 that "[w]e don't have to pay the interest or pay back the money provided...it will come out of the estate". [4] The husband relies on a range of other corroborative evidence which, if accepted, would support the submission that there was an agreement between the wife and Mr Kilian regarding the use by Mr Kilian of a substantial part of the wife's inheritance from her late mother's estate, of which Mr Kilian was the executor, to balance out or pay down or cancel out the advances or part of them.
3. The B companies' claim for unpaid rent is for AB Street property. The M Unit Trust entity entered into a commercial lease with B companies on 1 April 2010. The spouse parties ran the suburb O business there. B companies sold AB Street to the spouse parties on 7 September 2017. B companies introduced a claim for unpaid rent and interest to the State matter in June 2021.
4. The defendants say all outstanding liabilities were dealt with as part of the sale of the property, and if dealt with by B companies on non-commercial terms, was merely another example of the reality that the wife's father was helping his daughter, then son-in-law, and grandchildren, who were experiencing severe financial stress.
5. Central to the issue of accrued jurisdiction is the defendants' allegation that Mr Kilian is the sole director of and fully controls the B companies, and that all of the relevant conduct of the B companies is a reflection of Mr Kilian's will.
6. The B companies' submission on this application is that they "are commercial trading entities unrelated to parties or the entities of the husband". [5]
7. Mr Kilian owns 85,601 shares in B companies and B1 Pty Ltd owns the remaining 5,000 shares in B companies. Mr Kilian owns one half the ordinary shares of B1 Pty Ltd, the wife owns one sixth of the shares, and her two siblings own the other two parcels of one sixth each. (There is one J Class share whose effect is unclear).
8. The defendants allege the wife is aligned with Mr Kilian, who they say is the B companies, in relation to the debts claimed in the State matter.[6] This, they allege, is why the wife is no longer a defendant in the State matter.
9. The defendants submitted in their case outline provided prior to the part-heard final hearing,[7] that but for the breakdown of the marriage, the B companies, at the direction of Mr Kilian, would never have called in any loans or enforced any agreements. The defendants submit the "claims now maintained by the [B companies] are in design to increase the Wife's leverage in these proceedings rather than being bona fide."[8]
10. That submission is contested by the B companies, however, it runs through every aspect of the defendants defence and claims in both the State matter and the matrimonial property cause.
11. The defendants point to the fact that the first demand for payment by Mr Kilian and B1 Pty Ltd was not made until 17 January 2020, two months post separation, and the introduction of the rent claim many years after the sale and purchase of Property 1.
12. They point to the fact the wife is not a defendant, when certain documents suggest that the payments, and any loans, were clearly and solely made to her, and suggest that if there was a bona fide claim, and if the B companies were truly merely commercial trading entities seeking to recover lawful debts, then the wife would be a, if not the, defendant.
13. One such document relied on is an email from Mr Kilian to the husband of 27 June 2013 stating in part:[9]

Transfer of funds ($1m) shall be from me to [B1 Pty Ltd] and then to [Ms Vila's] account and then to you/[J Pty Ltd]. It has to follow this path to be against [Ms Vila's] loan account at [B1 Pty Ltd].

1. Another is an email on 6 August 2013 from Mr Kilian to the husband saying:[10]

You may want to check with [Mr Q] how the interest is to be paid because it is a loan from [B1 Pty Ltd] to [Ms Vilas]...

1. Mr Q is the accountant for the B companies and a witness in their case.
2. The defendants also rely on evidence that the spouse parties' eldest child, Ms X, told the then Independent Children's Lawyer ("ICL") in 2023 that Mr Kilian had told her he was going to bankrupt her father, the husband, but that "[w]hen I got upset Grandpa told me not to worry because he would give the money he got off my dad to my Mum, so Y and I wouldn't miss out." Ms X later clarified the ICL's summary as Mr Kilian saying once he bankrupted the husband he would then "split the money I get from your Dad between myself and your Mum".[11] The husband has been permitted to rely on this evidence.[12] Ms X confirmed the conversation by affidavit. In pre-trial oral submissions for the B companies the substance of that conversation was not put in issue, only it's proper interpretation.
3. The defendants also rely on the email from Mr Kilian to the husband's mother of 20 May 2020, in which Mr Kilian said, amongst other things: [13]

You may have not been aware that the supreme court has referred my claim on [J Pty Ltd] to the federal court and subsequently to the family court. This decision means [B1 Pty Ltd] and I are parties to the family court matter. It allows [B1 Pty Ltd] total access to all correspondence and any information relating to it without restriction regardless of costs to [Vilas Group]. This is now being pursued by my legal people and will include every financial record to date and those current.

You may also wish to consider your position. Some weeks ago you entreated me to consider a favourable settlement based on the welfare of [Ms X] and [Y].

This was declined by me on the occasion due to the unfortunate presence in the discussion of you son [Mr S] whom had trouble understanding why I was concern by you and your family's appalling treatment of my daughter. My information from your family on past history does not give [Mr S] a reputation worth repeating.

(Emphasis added)

This less than inspiring behaviour from [Vilas] leads me to follow other actions given now I am able to since I am a party to the family law action [Vilas Group] has joined me to.

I shall deeply investigate the cash flow and distribution of the businesses monies and their distribution. I shall be unrelenting in my investigation and as an excuse why [Vilas] does not, as usual, wish to fulfil his obligations, there will be no succour.

I hope for his sake he pays me to avoid the collection process which I will instruct my collector to pursue with extreme zeal and public notification.

(Bold emphasis added)

1. The husband also relies on the evidence concerning the setting off, or waiver of, debts or balancing of gifts, by Mr Kilian directing the use of part of the wife's inheritance from her late mothers' estate of which he was the executor.
2. All of this is contested by the B companies and said to be irrelevant to the question of jurisdiction. However, the determination of jurisdiction depends upon the nature of the claims, and not their truth or falsehood,[14] and it is the claims, including the material relied on in support of them, which in the matrimonial financial proceedings includes voluminous documentary records and case outlines as there are no formal pleadings, to which I have had regard.
3. Both matters are currently two weeks part-heard, having run in December 2024, and are set to recommence after a nine-month hiatus today, Tuesday 7 October 2025. The proceedings are listed for three further days to conclude the oral evidence, and at the request of the parties for a further one day on 28 November 2025 for oral submissions, to allow the parties time to prepare detailed written submissions at the close of the evidence.
4. The order for concurrent final hearing in this court was made by consent in September 2020. That consent order was made after the then plaintiffs Mr Kilian and B1 Pty Ltd made oral application to have the State matter heard separately from the matrimonial property cause in this court. It is apparent from the transcript that that argument was not finding favour, and Mr Kilian and B1 Pty Ltd agreed to a consent order for joint hearing of the two proceedings. However, the issue of jurisdiction was not specifically raised, contested or decided at that time.
5. While the defendants to the State matter, and all other parties in the matrimonial property cause submit the court has accrued jurisdiction to hear the State matter, it was common ground that once jurisdiction was put in issue the court was required to determine that issue prior to taking any other further steps, and in particular prior to the resumption of the part heard trial.
6. The relevant principles are as recently summarised by the Full Court in Akbar & Gandega [2023] FedCFamC1A 174 ("Akbar") paragraphs 1-4, per Austin J, are:

[1] The first duty of every court is to ensure it has jurisdiction to entertain the proceedings before it (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; 97 ALJR 419; 66 Fam LR 369; [2023] HCA 15 at [27] and [92]; Eberstaller v Poulos (2014) 87 NSWLR 394; 313 ALR 165; [2014] NSWCA 211 at [1]).

[2] For that purpose, every court has jurisdiction to decide whether it is seized of jurisdiction (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26 at [3] (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs); Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130; 31 Fam LR 339; [2004] HCA 20 at [63]; Re Ross-Jones and Marinovich; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 at 193-4, 213, 215-16 and 223; [1984] HCA 82; 56 ALR 609 at 614-15, 628-9, 630-1 and 636; [1984] HCA 82; 9 Fam LR 888 at 892-3, 905-6, 907-8 and 912; DMW v CGW [1982] HCA 73; (1982) 151 CLR 491 at 507; [1982] HCA 73; 44 ALR 225 at 235-6; [1982] HCA 73; 8 Fam LR 677 at 686).

[3] Here, there was no enquiry about the existence of jurisdiction to entertain the causes of action at common law and in equity asserted by and on behalf of the husband against the appellant, appurtenant to the determination of the matrimonial cause for financial relief contested between the spouses under Pt VIII of the Family Law Act 1975 (Cth) (the Act).

[4] There was none. Jurisdiction was mistakenly assumed, induced by the manner in which the causes of action were instituted and prosecuted by the spouses without any objection by the appellant. But the parties could not consensually invest the Court with jurisdiction or power it did not possess (Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 133; [1991] HCA 9; 99 ALR 193 at 226-7; [1991] HCA 9; 14 Fam LR 593 at 623).

1. The B companies submitted[15] that Akbar was instructive, as here the connection between the State matter and matrimonial property cause was also purely co-incidental, citing Akbar at [28]-[34]. I reject that submission. No comparison can be made between the facts in Akbar and the alleged facts in these two proceedings.
2. In these circumstances the Application was given an urgent mention on Monday 29 September 2025, and an interim hearing of the Application was listed for and heard on Thursday 2 October 2025. This was as I considered it essential that the valuable and scarce court hearing time allocated not be lost,[16] so that a decision either way would be required to be able to use the time, either to proceed with the present course, or to allow the husband and wife to spend the weekend preparing how to conclude the matrimonial property proceeding alone.
3. In that regard I note that these are the oldest matters in the Newcastle docket, and that it is not clear when this matter would otherwise be able to be relisted before me, given the extent of Magellan, Evatt, and Special Indigenous List matters in my docket.
4. The question of whether or not this court has an "accrued" jurisdiction to hear and determine the State matter together with the matrimonial property cause is dependent on the specifics of this case. The relevant principles are as set out in the oft cited passage from the decision of Justices Gummow and Hayne in Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 ("Re Wakim") at 585 (omitting footnotes):

139 The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

140 In Fencott it was said that ''in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.'' The references to ''impression'' and ''practical judgment'' cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy ''depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships''. There is but a single matter if different claims arise out of ''common transactions and facts'' or ''a common substratum of facts'' notwithstanding that the facts upon which the claims depend ''do not wholly coincide''. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are ''completely disparate'', ''completely separate and distinct'' or ''distinct and unrelated'' are not part of the same matter.

1. I note the B companies submissions in relation to Warby v Warby [2001] FamCA 1469; (2001) 166 FLR 319, and the Full Court's illumination of the factors identified in Re Wakim, and that a rigid filter is difficult to define. I note the decision in McKay, In the Marriage of [1984] FamCA 46; (1984) 59 ALR 117 pre-dated Re Wakim and is, in my view, distinguishable on its facts. I note the authorities cited concerning personal injury cases, which are distinguishable on their facts.
2. The issue before me is the application of the relevant binding principles to these proceedings and their unique alleged facts.
3. To ascertain the relevant issues, I am required to pay "close attention to the pleadings (if any) and to the factual basis of each claim." The pleadings in the State matter are the Amended Statement of Claim filed 27 August 2024[17] and the amended Points of Defence filed 30 September 2024,[18] which itself refers to filed affidavit evidence.
4. There are no substantive pleadings in the matrimonial property cause, as this is not a pleadings jurisdiction. While the B companies submitted at [26] of their written submissions "[s]uch 'factual basis' does not attract a consideration of the evidence underlying the factual basis", the issue is complicated by the fact that there are no substantive pleadings in a matrimonial property cause.
5. In these circumstances, it was agreed for all parties during oral submissions that, in the usual way in this court, the question of what the issues are before the court is to be determined by reference to the parties filed evidence and case outlines. In this case that includes extensive affidavits, voluminous documentary evidence annexed or exhibited to affidavits, and in particular in case outlines which serve a similar purpose to pleadings.
6. It is for these reasons that I have cited various pieces of specific evidence relied upon by defendants as particularising the defendants' case.
7. The husband and defendants relied on the filed affidavit evidence from the following witnesses:

(1) Affidavit of the applicant husband, Mr Vilas filed 18 October 2024;

(2) Affidavit of the applicant husband, Mr Vilas filed 1 November 2024;

(3) Affidavit of Ms X, daughter of the applicant husband filed 18 October 2024;

(4) Affidavit of Ms T, sister-in-law of the applicant husband filed 18 October 2024;

(5) Affidavit of Mr U, brother of the applicant husband filed 18 October 2024;

(6) Affidavit of Mr S, brother of the applicant husband filed 18 October 2024;

(7) Affidavit of Ms V, sister-in-law of the applicant husband filed 18 October 2024;

(8) Affidavit of Mrs R, mother of the applicant husband filed 18 October 2024;

(9) Supplementary Affidavit of Mrs R filed 2 November 2024; and

(10) Affidavit of Mr W of Z Financial Services filed 14 November 2024.

1. The following witnesses were cross examined in the husband's and his companies case:

(1) Mr Vilas, the applicant husband;

(2) Ms X, daughter of the applicant husband;

(3) Mrs R, mother of the applicant husband;

(4) Mr S, brother of the applicant husband; and

(5) Mr W of Z Financial Services.

1. Certain affidavits were read without the requirement for cross examination.
2. The wife relied on the filed affidavit evidence from the following witnesses:

(1) Affidavit of the first respondent wife, Ms Vilas filed 18 October 2024;

(2) Affidavit in reply of the first respondent wife, Ms Vilas filed 1 November 2024;

(3) Affidavit of Mr AA, General Physician of the first respondent wife filed 18 October 2024;

(4) Affidavit of Ms BB, Consultant Psychiatrist of the first respondent wife filed 18 October 2024; and

(5) Affidavit of Ms CC, General Practitioner of the first respondent wife filed 18 October 2025;

1. The following witnesses were cross examined in the respondent wife's case:

1. The B companies relied upon affidavit evidence from the following witnesses:

(1) Affidavit of Mr Kilian, director of B1 Pty Ltd filed 18 October 2024;

(2) Affidavit in reply of Mr Kilian, director of B2 Pty Ltd filed 1 November 2024;

(3) Affidavit of Mr DD, partner at FF Financial Services filed 18 October 2024;

(4) Affidavit of Mr Q, director of GG Financial Services Pty Ltd, accountants for Mr Kilian filed 18 October 2024;

(5) Affidavit of Mr Q, director of GG Financial Services Pty Ltd, accountants for Mr Kilian filed 1 November 2024;

(6) Affidavit of Ms HH, domestic partner of Mr Kilian filed 18 October 2024; and

(7) Affidavit of Mr JJ, Principal Solicitor at KK Legal Services, Solicitors for Mr Kilian filed 1 November 2024.

1. None of the B companies' witnesses have been called or cross examined. The trial was adjourned on day nine, as it was agreed that in the usual way Mr Kilian as the main B companies witness would be called first in the B companies case, and it was apparent that Mr Kilian could not be cross examined in a single day. The matter was therefore adjourned on day nine to avoid Mr Kilian being under cross examination for an extensive period, until a time for the resumed hearing could be allocated.
2. The following expert affidavits were relied upon under joint instruction of the applicant husband and the first respondent wife:

(1) Affidavit of Mr LL, Chartered Accountant at MM Financial Services, valuer of the Vilas Group, filed 22 October 2024;

(2) Affidavit of Ms NN, Forensic Accounting Specialist at OO Financial Services filed 8 November 2024, valuer of the wife's interest in B1 Pty Ltd and B2 Pty Ltd.

(3) Affidavit of Mr PP of QQ Financial Services, filed 25 November 2024, the valuer of the plant and equipment of B1 Pty Ltd and B2 Pty Ltd;

(4) Affidavit of Ms RR, Practicing Valuer at SS Financial Services filed 17 October 2024;

(5) Affidavit of Mr TT, Practicing Valuer at SS Financial Services filed 17 October 2024; valuer of the real properties at:

(a) AB Street, Suburb O,

(b) 1 AD Street, Suburb UU,

(c) 2 AD Street, Suburb UU,

(d) AE Street, Suburb ZZ,

(e) AC Street , Suburb P,

(f) AF Street, Suburb VV,

(g) AG Street, Suburb UU,

(h) AH Street, Suburb WW

(6) Affidavit of Mr EE, Practicing Valuer at SS Financial Services filed 17 October 2024; and

(7) Affidavit of Ms YY, Practicing Valuer at SS Financial Services, filed 17 October 2024;

(1) Ms NN, Forensic Accounting Specialist;

(2) Mr LL, Chartered Accountant at MM Financial Services.

1. The B companies submitted that I should not take into account the oral evidence of the witnesses in cross examination over nine days. The husband and his companies and the wife did not agree, noting that just because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete the court should not artificially restrict itself in its understanding of the real issues where nine days of evidence has been taken.
2. I accept that a consideration of the filed trial affidavits, including documents, and case outlines at trial, is the most appropriate course in determining the claims and issues. Those documents set out the factual claims and the basis on which they are made. The testing of those claims in cross examination does not assist where, on this issue, I am not seeking to determine the truth of the various claims at this stage.
3. To determine the matrimonial property cause the court must determine the property of each of the parties, which includes determining their assets and liabilities.[19]
4. The State matter involves debts allegedly owed by the husband, and the defendant companies, which hold much of the spouse parties' commercial assets. The state debts, if payable, would consume the larger part of the husband's and joint matrimonial pool, but not the wife's personal interests in real property and the B companies. If the monies advanced by the B companies are not debts, the court will be required to consider whether the advanced funds were gifts, and if so to who and how they should be treated. The treatment of the wife's inheritance would also be in issue, given it has allegedly been in part set off against the alleged debts or gifts.
5. The characterisation of parental advances as gifts or loans are features common to matrimonial property causes heard every day of the week in this court.[20] If this were no more than a case where the wife's father advanced some monies to buy a house or start a business, and there was now an issue about whether or not it was a loan or a gift, and the major factor relied on was "the relationships between or among" the parties, and of "the laws which attach rights or liabilities to their conduct and relationships", then it is unlikely that I would find this to be a case to which the accrued jurisdiction attached.
6. Nor is the fact that the State matter proceedings are part-heard and have been heard together with the matrimonial property cause, and that it would be easiest and most convenient to finish hearing them together, relevant or supportive of a finding of an accrued jurisdiction.
7. It is in looking at the totality of "what the parties have done", both during the marriage and post separation, that has caused me to form the view, that on balance, both proceedings do fall within the scope of one single controversy.
8. My decision is based on a consideration of the totality of the allegations by all parties to both proceedings, and by what they have done, in addition to the complexity of the interactions and the still to be tested allegations concerning Mr Kilian's motives in directing the recovery of the alleged debts which would be relevant to the determination of both sets of proceedings.
9. On balance, considering all of the material filed and submitted prior to the commencement of the final hearing, I consider and find that there are such common transactions and facts as to constitute a common sub-stratum of facts, even though the facts and issues in the two matters do not wholly coincide, and even though I accept it might be possible to hear and determine the two proceedings separately.
10. However, when closely considered, in their totality, and noting that I have cited only a small fraction of the material contained in the filed affidavit and documents, I consider these two proceedings "are so related that the determination of one is essential to the determination of the other".
11. I have put aside the oral evidence from my mind in making this finding, accepting the B companies' submissions that it is an issue for pre-trial determination and that I should not consider the oral evidence. However, if I was wrong to do that, I note that a consideration of the oral evidence to date, in my view, strongly confirms the finding there is a single controversy and accrued jurisdiction to hear and determine the matters together.
12. I wish to emphasise that I consider this to be an unusual set of facts. The relationship of Mr Kilian to the wife is a necessary, but not a sufficient factor.
13. It is the totality of the actions of the parties and the long term intermingling of the financial affairs of Mr Kilian, the B companies, the estate of the wife's late mother, the husband, the wife, the Vilas Group and the spouse parties businesses, and the issue of whether or not Mr Kilian's conduct of the State matter is intended primarily to influence the outcome of the matrimonial property cause as alleged, which distinguishes this case from the common case in which issues arise around whether monies advanced by a parent were a loan or a gift.
14. That is not a decision reached lightly, and the assessment was finely balanced in my mind during consideration of the appropriate orders and reasons.
15. I wish to emphasise that in most cases of a parental loan versus gift dispute the issues and matters are sufficiently severable and distinct so that any action on such an alleged debt should be commenced and determined in a court of competent jurisdiction, and not commenced in, transferred to, or heard in this court.
16. The defendants submitted that the fact that the B companies have been joined to the matrimonial property proceedings by the husband and his companies, who seeks relief which affects them pursuant to s 90AE of the Act, is a factor which adds to the argument there is accrued jurisdiction. The B companies contest the validity of the s 90AE orders as sought. They submitted that the preconditions for the exercise of the court's power under Pt VIIIAA have not been met there being no evidence which could satisfy them,[21] and that as formulated the orders sought are against Mr Kilian who is not a party to those proceedings, are directed towards a "creditor" when the issue is in dispute, and as formulated seek to improperly increase the property pool.[22] There do appear to be significant potential difficulties with the s 90AE orders sought as presently formulated.
17. However, given that I reached my finding that there is accrued jurisdiction without having to consider that issue, I have not taken it into account as a factor. As the issue does not need to be determined I will not make any further comment about s 90AE. That may be an issue for another day.
18. To the extent res judicata was maintained as an argument in relation to the transfer order of the Supreme Court of New South Wales in opposition to the present application, I do not consider that principle applies as there was no right to appeal the transfer decision under the Cross Vesting Act. This court, and the appellate courts that supervise this court's jurisdiction, is the appropriate venue to determine this court's jurisdiction.
19. Similarly, to the extent still pressed I do not accept the argument that an estoppel in terms of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 arises to stop the transfer back, by reason of the failure of the B companies to raise this issue at the time the oral application was made to have the proceedings heard separately in this court on 18 September 2020. As with issues of delay, such an estoppel cannot cloak this court in jurisdiction it does not otherwise possess.
20. Given the need to make an urgent decision, to allow the parties to be ready to proceed on 7 October 2025, the matter was mentioned and orders were published at 1.00 pm on Friday 3 October 2025 without the provision of reasons, as although I had formed my view it had not been possible to also finalise and deliver written reasons by 3 October 2025 and the parties needed to know the outcome, whichever way, to prepare for 7 October 2025.
21. These reasons are published in support of and to explain the orders made and entered last Friday 3 October 2025 dismissing the application and reserving costs.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.

[1] Exhibit 2, Written Submissions in the Supreme Court of the plaintiffs dated 7 May 2020; Exhibit 3, Written Submissions in the Supreme Court of the defendants dated 7 May 2020.

[2] Exhibit 1, Orders and Reasons of Justice of the Supreme Court of New South Wales dated [redacted] 2020.

[3] Husband's Submissions Bundle for Trial (MFI 18 in the substantive final hearing), paragraph 39.

[4] Husband's Submissions Bundle for Trial (MFI 18 in the substantive final hearing), paragraph 40.

[5] MFI 1, Second and Third Respondent Written Submissions filed 1 October 2025, paragraph 42.5.

[7] Husband's Submissions Bundle for Trial (MFI 18 in the substantive final hearing).

[8] Husband's Submissions Bundle for Trial (MFI 18 in the substantive final hearing).

[9] Husband's Submissions Bundle for Trial (MFI 18 in the substantive final hearing) paragraph 43; Exhibit I.10 in substantive hearing.

[10] Husband's Submissions Bundle for Trial (MFI 18 in the substantive final hearing) paragraph 45; Exhibit I.12 in substantive hearing.

[11] Affidavit of Ms X filed 18 October 2024, paragraphs 12-16.

[12] Vilas & Vilas [2023] FedCFamC1F 1141.

[13] Affidavit of Mrs R filed 5 November 2024, paragraph 19 and Annexure JK1.

[14] MFI 1, Second and Third Respondent Written Submissions filed 1 October 2025, paragraph 15; Kirk v Industrial Relations Commission [2010] HCA 1 at 60 citing R v Bolton.

[16] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

[19] Stanford v Stanford [2012] FamCAFC 1; (2012) 247 CLR 108.

[20] Biltoft v Biltoft [1995] FamCAFC 45; (1995) FLC 92-614; Gargano v Gargano (2010) FamCA 115; Kessey v Kessey [1994] FamCA 162; (1994) FLC 92-495; Bonnici v Bonnici [1991] FamCA 86; (1992) FLC 92-272.

[22] Bergman v Bergman [2009] FamCAFC 27; Dovgan and Dovgan [2021] FamCA 306 at [295].