Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd

LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5 Family Law Act 1975 (Cth) s 75(2), 79, 90E

Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Baumgartner v Baumgartner (1987) 164 CLR 137 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 BHP Billiton Ltd v Utting [2005] NSWSC 260 Green v Green (1989) 17 NSWLR 343 CASES CITED : Hore v Albury Radio Taxis Co-op Society Ltd (2002) 56 NSWLR 210 James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357 Morris v Morris (1982) 1 NSWLR 61 O'Sullivan v Young (1972) QdR 39 Spiliadia Maritime Corporation v Cansulex Ltd [1987] AC 460 Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd (1974) 131 CLR 333

PARTIES : Benlair Pty Ltd - plaintiff Terrigal Grosvenor Lodge Pty Ltd - defendant

COUNSEL : P Hallen SC/G Roberts - plaintiff M Holmes QC - defendant

SOLICITORS : Michael Conley Lawyers - plaintiff Fraser Clancy Lawyers - defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

6536/05 Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd JUDGMENT 1 His Honour: By its notice of motion filed 16 March 2006 the plaintiff makes application to transfer the proceeding in this Court (the proceeding) to the Family Court of Australia pursuant to s 5(1) Jurisdiction of Courts (Cross-Vesting) Act 1987 (the Act). It is opposed by the defendant. 2 The proceeding was commenced by summons filed 23 December 2005. The plaintiff claims a declaration that the defendant holds the land comprised in Folio 1304/1068128, known as No. 351-361 Terrigal Drive, Erina (the land) on trust for the plaintiff, alternatively a declaration that the land is subject to an equitable charge in favour of the plaintiff to secure an amount equal to the value of improvements made by it and the business known as Erina Kindergarten. It also claims orders restraining the defendant from interfering with its quiet enjoyment of, or otherwise dealing with, the land adverse to the plaintiff's occupation. 3 On 23 December 2005 the court made orders, ex parte, in accordance with the orders sought in the summons. 4 On 2 February 2006, upon the plaintiff's usual undertaking as to damages, by consent and without admissions the orders were continued until further order, and directions were made for the filing and service of points of claim, points of defence, and affidavits. As yet, no points of claim, points of defence, or affidavits on behalf of the defendant have been filed or served. 5 The background to the plaintiff's present application is the following. 6 The defendant is the registered proprietor of the land on which it operates the aged care facilities known as the Mathew John Nursing Home and the Maxine Louise Care Facility. Since about January 2001 the plaintiff has been carrying on business as the Erina Kindergarten and Pre-School from premises situated on part of the land. 7 Maxine Louise Klumper (the wife) and John Gerard Klumper (the husband) were married on 6 September 1995. They finally separated in about September 2004. Their children are Matthew Klumper aged 9 years and Jean-Marie Klumper aged 7 years. 8 The husband is the father of Veronica Klumper and Paul Klumper, his children by a former marriage. 9 The wife is the sole director and shareholder of the plaintiff. 10 The husband was a director of the defendant from February 1971 to April 1990; and from 16 July 1992 to 27 June 2002; and on 3 November 2003. Its current directors are Paul Klumper, appointed 4 June 2001, and Veronica Klumper, appointed 3 November 2003. Paul Klumper and Veronica Klumper are current shareholders. One Warwick La Hood is also a shareholder, and is said to hold his shares beneficially for the children of the wife and the husband. 11 By his application of 2 April 2003 to the Family Court of Australia (No. SYF 2903/03) the husband commenced proceedings for orders in respect of the children of the marriage. On 10 March 2006 the wife filed a response in which she joined as respondents the defendant, Paul Klumper, Veronica Klumper, El Lago Pty Ltd, and Albany Investment (NSW) Pty Ltd. In the response she seeks orders concerning the residence and maintenance of the children, and also orders for the alteration and adjustment of the interests of herself and the husband in the property of the marriage. The issues in the proceeding in this Court 12 Although no points of claim or points of defence have been filed, it was common ground that the plaintiff's claim for equitable relief by way of a constructive trust will raise issues of the kind considered in Baumgartner v Baumgartner (1987) 164 CLR 137, and that its alternative claim for relief by way of the imposition of an equitable charge on the land will raise issues of the kind considered in Morris v Morris (1982) 1 NSWLR 61. Thus, essentially, the question for determination in these proceedings is whether, in the circumstances, by reason of equitable principles, the plaintiff has any, and if so what, proprietary interest in certain land owned by the defendant. 13 In respect of each claim it will be necessary to consider whether, in accordance with equitable doctrines, it will be unconscionable on the part of the defendant to refuse to recognise the existence of an equitable interest of the plaintiff (Baumgartner p 147; Green v Green (1989) 17 NSWLR 343, p 353). If it is decided that an equity arises in favour of the plaintiff the court will determine how in all the circumstances justice requires that such equity be satisfied and whether, for example, the appropriate remedy is the imposition of a constructive trust or an equitable charge (Morris p 64). 14 It may be anticipated that factual issues will include the terms of any arrangement with the defendant under which the plaintiff incurred expenditure and acted to its detriment on the understanding that by so acting it was acquiring a beneficial interest in the land. 15 In her affidavit of 22 December 2005 the wife describes the circumstances in which the kindergarten was established and developed on the land between about January 2001 and late 2005. She alleges that land was made available to the plaintiff by the husband on behalf of the defendant, and that renovations to existing buildings were carried out by employees of a company in which he was a shareholder and at his direction. She says that on various occasions the plaintiff caused substantial building and construction work to be carried out for the improvement and expansions of the kindergarten which involved expenditure in the total sum of about $240,000.00 on the faith of representations made to her by the husband that the land would be subdivided and that the part on which the kindergarten was situated would be the plaintiff's. It is alleged that over the relevant period there was an increase in the number of children enrolled from 40 to 96, and of the plaintiff's employees from about 12 to 22. She says that during the first period of separation the plaintiff received on 27 March 2003 a demand for repayment of $1,300,000.00 from Brentwood Village Ltd, and on 28 March 2003 a demand from the defendant that it enter into a lease of the premises failing which proceedings for recovery of possession might be taken. She says that after reconciliation with the husband on about 24 April 2003 there were no further negotiations about these matters. She says that on 31 October 2005 the husband advised her of the defendant's proposal to evict the plaintiff, and handed her a letter from the defendant to the plaintiff of the same date in which the defendant requested agreement to a lease on specified terms by 30 November 2005 failing which it would require the plaintiff to vacate by 31 December 2005. Annexures to the affidavit include the letter and notice to quit of 5 December 2005, which precipitated the institution of these proceedings. The issues in the Family Court proceeding 16 The plaintiff is not a party to the Family Court proceedings. The wife proposes to join it as a party should the proceeding be transferred to the Family Court. 17 The relevant issues in the Family Court proceeding are indicated in the response by the relief claimed by the wife for maintenance and adjustment of property interests. The claims include the following:

(1) A declaration that Paul Klumper and Veronica Klumper each hold his and/or her interest in the defendant wholly upon trust for the husband, and an order that each transfer his or her interest to him;

(2) Orders that the husband cause the defendant to transfer free of encumbrance all of its interest in the land to the wife or to her nominee, and to discharge any and all loans secured on the land;

(3) An order that the husband pay to the wife or as she may direct an amount of $50,000,000.00, or the equivalent of 50 percent of the value of the matrimonial asset pool, whichever is the greater. 18 The claim in respect of spousal maintenance under s 75(2) Family Law Act 1975 (Cth) requires consideration of a number of matters including the income, property, and financial resources of each of the parties; the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. 19 The claims for alteration of property interests attract the jurisdiction of the Family Court under s 79, which enables it to make, for the benefit of either or both parties to the marriage, such settlement or transfer of property as it determines. Section 79(2) requires that an order shall not be made unless in all the circumstances it is just and equitable to do so. Under s 79(10) a person whose interests would be affected by the making of an order is entitled to become a party to the proceedings in which an application for an order is made. 20 Under s 90AE, the Family Court may make an order under s 79 binding upon a third party, including (s 90AE(2)(b)) one which alters the rights, liabilities, or property interests of a third party in relation to the marriage. Under s 90AE(4)(g) the court is required to consider matters raised by the third party as a result of it being accorded procedural fairness. 21 In the proceeding before this Court the controversy is not between the parties to a marriage or between a party to a marriage and a third party. Although I understand it to be common ground that both sets of proceedings may involve a number of common issues and common witnesses, the defendant strongly contends that the claims in the proceeding in this Court are not within either the jurisdiction of the Family Court under the Family Law Act, or within its accrued jurisdiction. The Jurisdiction of Courts (Cross-vesting) Act 1987 22 The preamble to the Act includes: "(b) to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases, and (c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court".

Relevantly, s 5 provides: "5 Transfer of proceedings (1) Where: (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court, and (b) it appears to the Supreme Court that: (i) (Repealed) (ii) having regard to: (A) whether, in the opinion of the Supreme Court, apart from any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court, (B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, and (C) the interests of justice, it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be,

(iii) (Repealed) the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be. … (9) Nothing in this section confers on a court jurisdiction that the court would not otherwise have". 23 The Explanatory Notes to the 1987 Bill includes the following: "6. The Jurisdiction of Courts (Cross-vesting) Bill 1987 seeks to cross-vest jurisdiction in such a way that federal and State courts will, by and large, keep within their "proper" jurisdictional fields. To achieve this end, the Commonwealth Bill, this Bill and the proposed legislation of other States make detailed and comprehensive provision for transfers between courts which should ensure that proceedings begun in an inappropriate court, or related proceedings begun in separate courts, will be transferred to an appropriate court. The provisions relating to cross-vesting will need to be applied only in those exceptional cases where there are jurisdictional uncertainties and where there is a real need to have matters tried together in the one court. The successful operation of the cross-vesting scheme will depend very much upon courts approaching the legislation in accordance with its general purpose and intention as indicated in the preamble to the Commonwealth and State legislation. Courts will need to be ruthless in the exercise of their transferral powers to ensure that litigants do not engage in "forum-shopping" by commencing proceedings in inappropriate courts". 24 The Second Reading Speech (NSW Legislatively Assembly, Hansard 29 April 1987, pp 10750, 10751) includes the following: "The legislation now before the House has been developed by the Special Committee of Solicitors General and approved by the Standing Committee of Attorneys General as the most realizable and effective means of removing jurisdictional disputes across Australia. Similar legislation has been introduced into the Commonwealth Parliament, and either has been or will be introduced in each State, thereby achieving a truly national solution to this most important defect in Australian law. The bill now before the House will avoid inconvenience and expense currently faced by litigants by achieving the following reforms. First, uncertainties as to the jurisdictional limits of State and federal courts will be removed, particularly in the areas of trade practices and family law. Second, the lack of power in the courts to ensure that proceedings which are instituted in different courts, but which ought to be tried together, will be remedied, so that all related proceedings will be heard and determined in one court. It is not anticipated that the new legislation will be utilized on many occasions, but the cases in which difficulties have occurred to date warrant action being taken by respective governments. … Under the scheme, if proceedings are commenced in an inappropriate court, or if related proceedings are begun in separate courts, the courts will have power to transfer proceedings to the most appropriate court, having regard to the nature of the dispute, the laws to be applied and the interest of justice. … Clause 5 operates to ensure that proceedings are always dealt with by the most appropriate court". The principles 25 The principles applicable to the discretionary exercise under s 5 of the Act were confirmed in BHP Billiton Ltd v Schultz (2004) 221 CLR 400. It was held that the statute requires the court to ensure that cases are heard in the forum dictated by the interests of justice. Gleeson, CJ, McHugh, and Heydon JJ pointed out that "It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate" (para 14). 26 Further, their Honours said (para 15): "… The interests of justice are not the same as the interests of one party, and there may be interest wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s 5 is not disembodied, or divorced from practical reality". 27 Their Honours approved (para 13) the passage from the judgment of Street, CJ in Bankinvest AG v Seabrook (1988) 14 NSWLR 711, pp 713-714 in which he said: "… It calls for what I might describe as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute". 28 In BHP Billiton guidance was given as to the relevant factors to be considered in identifying which is the more appropriate forum. These may vary from case to case, but ordinarily would include connecting factors such as matters of convenience and expense, the availability of witnesses, the substantive law by which the claim is to be determined, and the experience and specialist nature of the court or tribunal relevant to the claim (see also BHP Billiton Ltd v Utting [2005] NSWSC 260, paras 4, 5). 29 In BHP Billiton, Kirby, J pointed out that the power involved judicial evaluation of a number of factors with regard to criteria expressed in very general language ("the interests of justice", "more appropriate") (para 172). 30 In essence, as I understand them, the cases hold that in deciding which is the "more appropriate" court for the trial of the relevant proceeding the court must identify the court in which it may be tried more suitably for the interests of all the parties and the ends of justice (Spiliadia Maritime Corporation v Cansulex Ltd [1987] AC 460, p 476; James Hardie & Co Pty Ltd v Barry (2000) 50 NSWLR 357, para 91). 31 The requirement of s 5(1)(b)(ii) of the Act to have regard to the matters in sub-paras (A), (B), and (C) is one which requires them to be given weight as a fundamental element in the decision-making process, although, arguably, they need not be the basis of the decision or the only matters which are taken into account (Hore v Albury Radio Taxis Co-op Society Ltd (2002) 56 NSWLR 210, paras 48, 49 per Campbell, J). Submissions 32 The plaintiff submitted that the proceeding relates to its interest in that part of the defendant's land on which the kindergarten is operated. In the Family Court the wife's claims are for the alteration of property interests of her and the husband. Relevant to these claims is the value of the wife's interest as sole shareholder in the plaintiff, which will take into account the extent, if any, of the plaintiff's interest in the land. As it is also claimed that the husband has a beneficial interest in, and is the de facto controller of, the defendant, the value of any such interest will take into account the extent of the defendant's interest in the land following the determination of the plaintiff's claim. 33 It was submitted that the conversations and events relevant to the plaintiff's claim involved the wife and the husband and should be considered in the context of the marriage. It was put that as it is alleged in the Family Court proceeding that the companies were and are the alter egos of the parties to the marriage, the proceeding in this Court would be more appropriately tried in that court as part of the maintenance and property claims. It was accepted that the nature and extent, if any, of the husband's interest in the defendant was not an issue in the proceeding in this Court. 34 It was argued that as the determination of the extent to which, if at all, the plaintiff has an interest in the defendant's land is a matter relevant to the value of the shareholding interests in each company, it is appropriate that it be undertaken by the Family Court as the issues for consideration are linked with those already before that court. It was put that in such circumstances it is in the interests of justice that all issues relevant to the maintenance and property claims be heard and determined by the Family Court as the more appropriate court, and that an order transferring the proceeding to it should be made. 35 In short, it is put that there is a substantial commonality of issues in both sets of proceedings which, having regard to the interests of justice under s 5 as not being "… disembodied, or divorced from reality" (BHP Billiton, para 15) should be appropriately dealt with by the Family Court. 36 In submission in reply, the plaintiff submitted that this Court should not decide whether the Family Court had jurisdiction to hear the plaintiff's claim if these proceedings were transferred to it (T pp 79, 80). It was put that the question was properly one for the Family Court and the parties would be at liberty to argue it there, having regard to s 5(9) of the Act which provides that nothing in s 5 confers on a court jurisdiction that it would not otherwise have. It was put that the prospect of there being an issue of jurisdiction to be decided by the Family Court should not preclude the making of an order for transfer. 37 In opposition to the application the defendant submitted that the proceeding concerns only the plaintiff's claim for equitable relief against the defendant to which the Family Law Act has no application. It was put that the Family Court has no jurisdiction to grant the relief by way of the declarations and orders claimed in the summons and, in particular, it is not to be found in ss 75, 79, or 90E of that Act. 38 In any event, it was put, the issues in the proceeding are discrete, and do not sufficiently overlap those in the Family Court proceeding so as to justify an order on the basis of convenience. It was pointed out that, at present, the plaintiff is not a party to the Family Court proceeding and no issue is raised in it which affects its interests. 39 The defendant further submitted that there was no factor which provided a reason to order transfer having regard to the provisions of each of s 5(1)(b)(ii)(A) and (B), and that having regard to the substantive law applicable to the plaintiff's claim it is plain that this Court is the more appropriate for its trial and determination and it was not in the interests of justice to transfer it. Determination 40 In the exercise of its discretion the court is required to have regard to each of the matters in sub-paras (A), (B), and (C) of s 5(1)(b)(ii), bearing in mind that the "relevant proceeding" is the proceeding in this Court. In this application it was not submitted that account should be taken of matters additional to these. 41 Turning first to (A), the question for opinion is whether the proceeding in this Court would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Family Court. Unsurprisingly, it is common ground that the proceeding was capable of being instituted in this Court. 42 However, the plaintiff contended that the proceeding was also capable of being instituted in the Family Court. As I understand the submission, it was that the question of capacity is to be considered as at the time of the hearing of the cross-vesting application when, as in this case, the relevant Family Court proceedings were on foot. It was put that a sufficient basis for the opinion that the proceeding would have been capable of being instituted in the Family Court is that, at the time of the hearing of the application, the Family Court has, or it was arguable that it has, jurisdiction to try the plaintiff's claim as part of the proceeding presently before it. It was also put that in discharging the requirement to have regard to the matter in (A), the court was not required to decide any question as to the scope of the Family Court's jurisdiction to determine the proceeding. 43 The defendant submitted that the proceeding would not have been capable of being instituted in the Family Court, and that regard to (A) provided no ground for transfer. 44 The issue is one of the proper construction of (A). Its language is unambiguous. It requires the court to form an opinion whether (apart from any cross-vesting legislation, and apart from any accrued jurisdiction of the Federal Court or the Family Court) the proceeding in the Supreme Court would have been incapable of being instituted in it and would have been capable of being instituted in the Federal Court or the Family Court. 45 To have an opinion one way or the other necessarily requires the court to consider whether each court has jurisdiction to deal with the proceeding. If the Supreme Court decided that it lacked jurisdiction to determine the relevant proceeding and that the other court had jurisdiction to do so, it is likely that it would come to the opinion that the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the other court. 46 Having regard to its context, in my view the word "instituted" is intended to mean "commenced" or "initiated" (cf: O'Sullivan v Young (1972) QdR 39, p 48; Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd (1974) 131 CLR 333, pp 335-336). It follows that the requirement is to consider whether or not the relevant proceeding was capable of being commenced in the Supreme Court and in either the Federal Court or the Family Court. 47 Under this provision, therefore, the opinion as to which court has jurisdiction to determine the proceeding will be a matter of weight in deciding whether it is more appropriate that the relevant proceeding be determined by another court. It may readily be inferred that the legislature regards consideration of this question as an important step in effecting the purpose of s 5 to ensure that proceedings are always dealt with by the most appropriate court (Second Reading Speech p 10751) by means of a system whereby a proceeding will be transferred to the appropriate court if it is instituted in a court which is not the appropriate court (Preamble, (c)). 48 Relevantly, the Second Reading Speech (p 10750) included the following: "Under the scheme, if proceedings are commenced in an inappropriate court, or if related proceedings are begun in separate courts, the courts will have power to transfer proceedings to the most appropriate court, having regard to the nature of the dispute, the laws to be applied and the interest of justice".

(See also statements from the Explanatory Note at para 23 above). 49 It is likely, therefore, that if the Supreme Court was of the opinion referred to in (A) that opinion would be accorded great weight in favour of deciding that the proceeding had been commenced in an inappropriate court and that an order should be made to ensure that it be dealt with by the most appropriate court. 50 Having considered the questions posed under (A) my opinion is that the proceeding in this Court was capable of being instituted in it and would have been incapable of being instituted in the Family Court. Accordingly, it weighs against an order for transfer. 51 With regard to (B), it is common ground that the matters for determination in this case do not involve questions as to a law of the Commonwealth and not within the jurisdiction of this Court, and no matter relevant to the opinion arises. Accordingly, under (B) nothing arises which supports an order for transfer. 52 Under (C) the court is required to have regard to the interests of justice. 53 It was common ground that there were no considerations dependent upon the location of parties and witnesses which favoured one court more than the other as a forum. 54 The principles to which I have earlier referred as to the exercise of discretion under s 5(1)(b)(ii) of the Act indicate the importance of keeping in mind the nature of the relevant proceeding and the applicable substantive law. The proceeding in this Court will determine whether the plaintiff is entitled to the property interests claimed against the defendant. It is concerned with the property interests of these parties, and not with those of the parties to the marriage. The issues between the plaintiff and the defendant will not be affected by the hearing and determination of the issues between the various parties in the Family Court proceeding. 55 There is no doubt that this Court is an appropriate court to determine the proceeding. 56 The defendant has argued that the Family Court has no jurisdiction to determine the proceeding. The plaintiff submitted that there is jurisdiction, but if there is a dispute it should be left to the Family Court to decide. Presumably, if the Family Court found that it had no jurisdiction to deal with the plaintiff's claims it would remit the proceeding back to this Court. 57 As the matter presently stands, I find it highly likely that if the proceeding is transferred a contested issue of jurisdiction will be raised for determination. Although I express no view as to the probable outcome, at present I am unpersuaded of the Family Court's jurisdiction to determine the proceeding. I find it difficult to accept that this Court would readily conclude that it was in the interests of justice to transfer a proceeding from a court whose jurisdiction was agreed to one whose jurisdiction would be challenged and would have to be decided. 58 Accordingly, in my opinion considerations of the interests of justice preclude the finding that it is more appropriate that the proceeding be determined by the Family Court. It is presently in an appropriate court, the jurisdiction of which is not in doubt. It cannot be in the interests of justice to transfer the proceeding to a court whose jurisdiction is arguable and uncertain, and which, if jurisdiction is found to be lacking, will remit it back to this Court. To make a transfer order in these circumstances would be inconsistent with the statutory purpose to ensure that proceedings are always dealt with by the most appropriate court. In my opinion the proceeding may be tried more suitably for the interests of the parties to it and the ends of justice in this Court rather than the Family Court (Spiliada, p 476). 59 Furthermore, the consequence that the determination of the plaintiff's claims against the defendant may be relevant to the valuation of the interests of shareholders in each, and that evidence relevant to the issues in the proceeding concern the conduct of wife and husband are not considerations which persuade me that, with regard to the interests of justice, the Family Court is the more appropriate court. 60 I am unpersuaded that it is more appropriate that the proceeding be determined by the Family Court and, accordingly, the plaintiff's notice of motion must be dismissed. 61 The parties made no submissions on the question of costs. Without hearing argument, my view is that costs should follow the event and that the appropriate order is that plaintiff pay the defendant's costs of the notice of motion. Unless the parties apply to my associate on or before 4pm 5 May 2006 for liberty to argue the question, there will be an order that the plaintiff pay the defendant's costs. 62 The court orders that the plaintiff's notice of motion be dismissed.

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