Nicita v Nicita

Decision date: 02 June 2025

Jurisdiction: Equity - Applications List

Before: Brereton J

Decision: See [28]

Catchwords: CIVIL PROCEDURE – cross-vesting – application to transfer the proceedings to Federal Circuit and Family Court of Australia – where the Supreme Court proceedings include claims by the plaintiffs for a declaration that the first and second defendant hold property on remedial constructive trust for their benefit – where the relevant property in the Supreme Court proceedings is the only asset of value in the FCFCA proceedings – where the FCFCA has jurisdiction to hear the matter – whether it is in the interests of justice to transfer the proceedings – balancing the interests of justice – proceedings transferred

Legislation Cited: Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Cases Cited: Bankinvest AG v Seabrook (1988) 14 NSWLR 711; (1988) 90 ALR 407; (1988) 92 FLR 153
BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61
Sultan v Dabboussi [2024] NSWSC 683
Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440
Vaughan v Frost [2010] NSWSC 492
Xue v Xue; Xue v Xue [2020] NSWSC 501

Texts Cited: N.A.

Category: Procedural rulings

Parties: Colomba Nicita (first plaintiff)
Rocco Nicita (second plaintiff)
Anthony Nicita (first defendant)
Solmaz Viarsagh (second defendant)

Representation: Counsel:
S A Lees (plaintiffs)
E Cox SC (second defendant)
No other appearances
Solicitors:
Kardos Scanlan (plaintiffs)
Watkins Tapsell (second defendant)

File Number(s): 2024/443417

Publication restriction: N.A.

JUDGMENT (ex tempore – revised from the transcript)

1. By notice of motion filed on 20 March 2025, the second defendant seeks an order that the matter be transferred to the Federal Circuit and Family Court of Australia to be joined to proceedings between Ms Bastani Viarsagh and Mr Nicita, bearing case number SYC2678/2024, pursuant to s 4, 5(1)(a) and (b) of the Jurisdiction *of Courts (Cross-*vesting) Act 1987 (NSW) and s 79(10) of the Family Law Act 1975 (Cth).

2. The plaintiffs oppose the application.

3. The proceedings in this Court were commenced by statement of claim filed on 28 November 2024. The plaintiffs are an elderly married couple. The first defendant is their son. The second defendant is the estranged wife of the first defendant.

4. In the Supreme Court proceedings, the plaintiffs seek inter alia a declaration that the first and second defendants hold their interest in certain property at Connells Point on a remedial constructive trust for the plaintiffs. It is alleged that both the husband/son (first defendant) and wife (second defendant) hold the property on constructive trust, or alternatively, it is just the husband/son who does so. The claim has some complexity.

5. In broad terms, it is alleged that at least part of the money used by the defendants to acquire the Connells Point property in 2013 was money held on constructive trust by the husband/son arising from a breach of trust by the son. It is alleged that the wife holds her interest on resulting trust for the husband and that they both hold their interests subject to a constructive trust in favour of the plaintiffs in these proceedings, the parents of the husband/son. It is also alleged that in 2013, there was a meeting between the plaintiffs and the defendants during which the defendants agreed to be indebted to the plaintiffs in respect of essentially the same underlying events that gave rise to the alleged constructive trust. The plaintiffs seek orders for the appointment of a statutory trustee for the sale of the Connells Point property. The first defendant has filed a submitting appearance in this Court.

6. The second defendant is the applicant wife in family law proceedings in the Federal Circuit and Family Court of Australia (Division 2). The first defendant is the respondent husband. In those proceedings (which I will call the family law proceedings), the wife seeks an alteration of property interests pursuant to s 79 of the Family Law Act. The Connells Point property is the only asset of value in the matrimonial pool in the family law proceedings.

7. Section 5(1) of the Jurisdiction of Courts (Cross-vesting) Act provides:

(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 Federal Circuit and Family Court of Australia, 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 Federal Circuit and Family Court of Australia,

(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 Federal Circuit and Family Court of Australia, as the case may be,

(iii) (Repealed)

the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Federal Circuit and Family Court of Australia, as the case may be.

8. In Sultan v Dabboussi [2024] NSWSC 683, Williams J observed at [13] as follows:

The Court is required to have regard to each of the matters in s 5(1)(b)(ii)(A), (B) and (C) in determining whether it is more appropriate that these proceedings be determined by the Federal Circuit and Family Court of Australia. However, (A), (B) and (C) are not cumulative requirements. If neither (A) nor (B) is satisfied, the Court may nevertheless conclude having regard to the interests of justice that it is more appropriate that these proceedings be determined by the Federal Circuit and Family Court of Australia: Zhang v Levingson [2023] NSWSC 1559 at [26]-[30] (Slattery J), and the authorities there referred to.

The second defendant accepts that neither of the criteria in s 5(1)(b)(ii)(A) or (B) are applicable. The fact that neither of those criteria is engaged is a factor that suggests that the Supreme Court is the more appropriate forum: see Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 at [67]-[68]. The plaintiff accepts, however, that the interests of justice under s 5(1)(b)(ii)(C) is the most significant factor for the Court on this application.

9. It follows that I must decide whether, having regard to the interests of justice, it is more appropriate that the proceedings, now before this Court, be determined by the Federal Circuit and Family Court of Australia. If it is, I must transfer the proceedings to that Court.

10. The plaintiffs accept that the Federal Circuit and Family Court of Australia would be able to determine their interest in the Connells Point property. However, they contend that the interests of justice do not mean that it is more appropriate that the proceedings be determined in the Federal Circuit and Family Court of Australia for the following reasons.

11. First, they contend that the Supreme Court proceedings can be concluded more quickly and cheaply in this Court than if they were transferred and heard together with the family law proceedings. There is evidence that the family law proceedings are not likely to be heard until mid-2026 and potentially not until mid-2027. Those proceedings involve complex parenting disputes that are likely to complicate the proceedings. As I have indicated, the plaintiffs are elderly. The first plaintiff is 76 years of age and is in good health. The second plaintiff is 89 years of age and has stomach cancer. He wishes to have his Supreme Court proceedings determined before he dies in order to impose less of a burden on his wife. There is evidence that the Supreme Court proceedings are likely to require one to two days and could be heard this year or in the first half of 2026. In short, they contend that the interests of justice favours the Supreme Court proceedings remaining in this Court because the likely timeliness of a decision is significant having regard to their age.

12. Second, they submit that the Supreme Court proceedings can deal with the parties' liabilities, rights or interests in respect to the Connells Point property ahead of the hearing of the family law proceedings. They submit that this Court will determine their interests in the Connells Point property as a matter of law and this will not then need to be agitated and determined by the Federal Circuit and Family Court of Australia.

13. Third, they submit that it would be highly distressing for the plaintiffs to have to participate in a lengthy hearing of the family law proceedings concerning fiercely contested allegations of physical, sexual and psychological abuse involving their son and grandchildren.

14. I accept that these matters weigh in any consideration of the interests of justice. Nevertheless, I have concluded that the interests of justice considered as a whole indicate that it is more appropriate that the proceedings in this Court be determined by the Federal Circuit and Family Court of Australia.

15. The proceedings in this Court were commenced well after the family law proceedings were commenced. The latter proceedings were commenced on 10 April 2024. By an order made on 25 September 2024 in the family law proceedings, the first defendant was ordered to serve the plaintiffs with orders made by the Federal Circuit and Family Court of Australia should they wish to intervene in the proceedings. Instead of intervening in those proceedings, the plaintiffs commenced the proceedings in this Court on 28 November 2024.

16. The statement of claim in this Court indicates that the plaintiffs first made demands for repayment from the defendants after they had permanently separated, and more than ten years after the events that are said to give rise to the debt and the plaintiffs’ interest in the property. It appears to me that the occasion for the dispute that underlies the proceedings in this Court is the breakdown in the marriage between the defendants. There is no evidence that the plaintiffs have a pressing financial need for the return of funds that they contend are owing to them. They receive and rely on the old age pension and are paying for their legal fees from their savings.

17. The plaintiffs have raised their claim to the Connells Point property during a pendency of the matrimonial proceedings. If they prevail, it will be to the detriment of the second defendant. I do not think that the plaintiffs can reasonably complain if they become intertwined in the matrimonial dispute.

18. The following statement in Valceski v Valceski at [77] is significant:

Third parties who intervene in matrimonial disputes in this way - especially associates, such as parents and private companies, of one or other of the spouses - cannot complain if their dispute is treated as part of the larger matrimonial dispute, which it normally is. Where third parties who assert rights against matrimonial property do so concurrently with pending matrimonial property proceedings, it will ordinarily be appropriate for those issues to be resolved in the matrimonial proceedings, and for the third party to join in those proceedings for that purpose, rather than to commence separate litigation, in another court, which almost inevitably results in duplication of evidence, issues, time and costs.

It seems to me that this statement has resonance in this case.

19. I accept that the resolution of legal issues as between the plaintiffs and the defendants in this Court would mean that those issues would not have to be determined afresh in the family law proceedings. However, it seems to me to be likely, or that there is at least a serious risk, that evidentiary matters traversed in this Court will have to be traversed again in the family law proceedings. That is because the family law proceedings will involve consideration of the following matters:

20. the identification of the pool of property of the parties to the marriage;

21. an assessment of the respective financial and non-financial contributions to the property; and

22. the making of appropriate adjustments to reflect the means and needs of the parties.

Furthermore, the Federal Circuit and Family Court of Australia has power under s 90AE of the Family Law Act to make orders that could substitute the husband for the wife as the debtor to the parents. This Court does not have that power.

20. The Supreme Court proceedings is really only concerned with the first of the three matters noted above, yet the evidence that will need to be considered in respect of that matter may also be relevant in respect of the other and broader issues that arise in the family law proceedings. It is strongly in the interests of justice that the evidentiary field is traversed just once. That can only happen in the family law proceedings. Otherwise, there is a significant risk of duplication, to the detriment of the parties and in the use of scarce judicial resources. There is also a risk of inconsistent findings.

21. In balancing the interests of justice, these considerations outweigh the detriment to the plaintiffs in what is likely to be a later determination of their rights and the need to participate in the family law proceedings.

22. Decisions about transferring proceedings under the cross-vesting legislation have been described as a “nuts-and-bolts management decision”: see Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 713-714 per Street CJ, which was cited by Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [13]. These management decisions will turn on the facts. A good example of where the facts pointed the other way is the decision of Adamson J in Xue v Xue [2020] NSWSC 501. In that case, the Supreme Court proceedings involved a written loan agreement from father to son and was to be enforced as a simple debt claim against the son. The evidentiary underpinnings in that case were of a very different character to those likely to arise in this case. Examples of decisions where proceedings were transferred, based on different facts, include Vaughan v Frost [2010] NSWSC 492 and Sultan v Dabboussi.

23. I am conscious that it is likely that the family law proceedings will be determined after the time that would be likely to be required for this Court to determine the current proceedings. Delay is a concern, especially given the age of the plaintiffs. However, they will be free to raise questions of delay and the desirability of expedition in the family law proceedings. I have no reason to think that the administration of justice will not be addressed properly and efficiently in that Court. The interests of all parties can be weighed properly in that Court.

24. The notice of motion seeks an order that the matter be transferred to the Federal Circuit and Family Court of Australia to be joined to the proceedings in that Court between husband and wife. Written submissions relied on by the second defendant seeks an order that the proceedings be transferred to Division 2 of the Federal Circuit and Family Court of Australia. That is where the family law proceedings are being heard at present. In Sultan v Dabboussi, Williams J ordered that the proceedings in that case be transferred to the Federal Circuit and Family Court of Australia (Division 2) with a view to being heard and determined together with other identified proceedings in that Court.

25. It seems to me that s 5 of the Jurisdiction of Courts (Cross-vesting) Act empowers, and in this case compels, me to transfer the proceedings to the Federal Circuit and Family Court of Australia. I do not think that I can compel that Court to join these proceedings with other proceedings in that Court. Nor do I think that I can specifically transfer the proceedings to one of the two divisions of that Court. These reasons disclose that these proceedings are being transferred because I consider the issues in the proceedings in this Court should be determined by the Federal Circuit and Family Court of Australia with the family law proceedings. I do not consider that I can do more than that.

26. As to costs, the plaintiffs submitted that if I order that the proceedings be transferred (i.e. the second defendant succeeds on the notice of motion), I should order that the costs of these proceedings be reserved for determination by the Federal Circuit and Family Court of Australia. Orders to that effect were made by Williams J in Sultan v Dabboussi. The second defendant submitted that costs should follow the event.

27. In my view, the costs of the proceedings generally should be reserved for determination by the Federal Circuit and Family Court of Australia. However, the second defendant's notice of motion was the subject of separate contest and is discrete. The second defendant has succeeded. The costs of the notice of motion should follow the event.

28. I make the following orders:

29. Pursuant to s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), the proceedings are transferred to the Federal Circuit and Family Court of Australia.

30. The plaintiffs are to pay the second defendant’s costs of the notice of motion filed on 20 March 2025.

31. Costs are otherwise reserved to the Federal Circuit and Family Court of Australia.

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