Redelman v Levin [2026] NSWSC 1230 | Case summary | Zoe

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Redelman v Levin [2026] NSWSC 1230 | Case summary | Zoe

These reasons concern an application by the second defendant for these proceedings to be transferred to the Federal Circuit and Family Court of Australia or, alternatively, for a stay of these proceedings. I heard the application in the Real Property List on 2 October 2026. At the conclusion of that hearing, I made orders transferring the proceedings to the Federal Circuit and Family Court of Australia on the basis that my reasons for doing so would be published as soon as possible. These are those reasons.
The plaintiffs in these proceedings are husband and wife. The first defendant is their daughter. The second defendant is the husband of the first defendant.
The first and second defendants are the registered proprietors of a property at 5 Gumara Street, Randwick (the Randwick property).
The first and second defendants separated in about November 2025.
Their respective solicitors exchanged correspondence in February 2026 concerning the financial and property consequences of the breakdown of their marriage. On 10 February 2026, the first defendant’s solicitor wrote that, in the absence of proper financial disclosure by the second defendant, the first defendant would seek orders dividing the matrimonial asset pool on terms which included that she would retain a property owned by the parties at Bondi (the Bondi property), that the Randwick property would be sold with the sale proceeds to be applied to the costs of sale and repayment of what was described as a registered mortgage to her parents, and that she would then receive 90% of the net asset pool (after deducting the Bondi property, a car to be retained by her, and her superannuation entitlements).
I infer that the second defendant’s solicitor replied disputing that the Randwick property was subject to a mortgage. In a further letter dated 25 February 2026, the first defendant’s solicitor acknowledged that there is no mortgage registered against the title to the Randwick property, but noted that there was a caveat lodged by the first defendant’s parents securing a loan made to the first and second defendants in the amount of $4,000,000. The first defendant’s solicitor sought confirmation as to whether the second defendant disputed the existence or validity of the interest in the Randwick property claimed by the first defendant’s parents and, if so, information as to the basis of that dispute and all documents, evidence and information relevant to that dispute.
On 8 April 2026, the second defendant filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking parenting orders and property orders. Those proceedings have been assigned file number SYC2605/2026. It is convenient to refer to them as the family law proceedings.
In relation to property, the Initiating Application filed by the second defendant (the husband in the family law proceedings) seeks final orders including:
orders for the sale of the Randwick property with the net sale proceeds (after payment of the agent’s selling commission, auction expenses, and legal costs and disbursements of and incidental to the sale) to be held in the trust account of the conveyancer or solicitor acting for the husband and wife on the sale, pending the sale of the Bondi property;
orders for the sale of the Bondi property with the net sale proceeds (after payment of the agent’s selling commission, auction expenses, and legal costs and disbursements of and incidental to the sale) to be held in the trust account of the conveyancer or solicitor acting for the husband and wife on the sale, pending the sale of the Randwick property; and
orders that the matrimonial asset pool be divided so as to effect an overall division of 35% to the husband and 65% to the wife following the sale of both properties, and orders identifying the assets and liabilities that are to be taken into account for the purpose of that division. The Initiating Application does not refer to the alleged $4,000,000 loan, it is clear from the February 2026 correspondence referred to above that the wife will contend that this is a liability to be taken into account in determining the net matrimonial asset pool. The husband accepts that this issue will arise in the family law proceedings. The Case Outline filed by the husband on 17 August 2026 states that substantive property issues, including the alleged $4,000,000 “parental loan” should be reserved for final hearing of the family law proceedings.
The plaintiffs commenced the present proceedings in this Court on 21 May 2026 claiming:
judgment in the sum of $4,000,000 in respect of a debt that they allege is owing by the first and second defendants under a loan agreement dated 25 March 2022, plus interest;
a declaration that the first and second defendants’ interest in the Randwick property is subject to an equitable charge securing all amounts payable under the loan agreement pursuant to a charging clause in the loan agreement; and
orders appointing the plaintiffs to conduct a judicial sale of the Randwick property and ancillary orders.
The first defendant has admitted the plaintiffs’ claim and filed a cross-claim against the second defendant for contribution of 50% of any judgment sum, order for payment of interest, and costs order entered against her in favour of the plaintiffs, and declarations and orders that the second defendant is liable to indemnify her in respect of any liability that she may have to the plaintiffs. The first defendant’s claim for contribution or indemnity is founded on an alleged agreement between herself and the second defendant which is said to have been partly oral and partly implied from conduct or, alternatively, equitable principles.
The second defendant has filed a defence in which he admits signing the loan agreement but denies that the plaintiffs advanced a sum of $4,000,000 and alleges that the second plaintiff said to him when he raised concerns about the amount stated in the loan agreement: “What are you worried about? It’s only if you get divorced.” The second defendant’s defence also pleads what is in substance a cross-claim to set aside the loan agreement on the grounds of alleged unconscionable conduct, alleged undue influence, and alleged misrepresentation. The second defendant’s defence also includes his defence to the first defendant’s cross-claim, in which he denies the alleged partly oral and partly implied agreement on which her contractual claim for contribution and indemnity is founded and denies liability in contract or in equity to contribute to or indemnify the first defendant in respect of any liability she may be found to have to the plaintiffs.
By notice of motion filed on 10 August 2026, the second defendant seeks a stay of these proceedings pending determination of the family law proceedings. In written submissions filed in support of the motion, the second defendant has re-cast his application as one for an order for transfer of these proceedings to the Federal Circuit and Family Court of Australia pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), and for a stay of these proceedings in the alternative.
The plaintiffs and the second defendant oppose the transfer or stay of these proceedings.
Section 5(1) of the Jurisdiction of Courts (Cross-vesting) Act provides:

As the plaintiffs and the first defendant properly accept, s 5(1) confers power on this Court to transfer proceedings to the Federal Circuit and Family Court of Australia if, after having regard to each of the matters in s 5(1)(b)(ii)(A), (B) and (C), it appears to the Court that it is more appropriate that the 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, as in the present case, 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. [1]
In identifying whether, having regard to the interests of justice, it is more appropriate that these proceedings be determined by the Federal Circuit and Family Court of Australia, relevant considerations include whether that Court has jurisdiction to determine these proceedings, the extent of any overlap between the factual matters raised in these proceedings and in the family law proceedings, considerations of cost and efficiency, and the convenience of the parties and any witnesses. [2]
The second defendant, as the applicant for transfer, bears no onus of proof, and the plaintiffs’ choice of this Court as the forum for these proceedings is given no particular weight unless both courts are equally appropriate forums for the determination of the proceedings. [3]
In opposing a transfer of the proceedings, the plaintiffs and the first defendant do not suggest that the Federal Circuit and Family Court of Australia lacks jurisdiction to determine the plaintiffs’ claims, the first defendant’s cross-claim and the second defendant’s claim to set aside the loan agreement (which is, in substance, a second cross-claim in these proceedings). However, they submit that, having regard to the interests of justice, it is not more appropriate that the proceedings be determined in the Federal Circuit and Family Court of Australia for the following reasons:
the plaintiffs are not parties to the family law proceedings, the second defendant has not sought any relief against them in the family law proceedings (including any orders determining the plaintiffs’ rights under the loan agreement), and the plaintiffs should not be compelled to become parties to the family law proceedings between their daughter and son-in-law in order to “recover a debt of a commercial character”;
the plaintiffs’ claim is not a matrimonial property dispute merely because the proceeds of the loan were applied to the first and second defendants’ purchase of their former matrimonial home;
there is no overlap of issues or factual matters between these proceedings (which require a determination of what they describe as the plaintiff’s contractual claim or debt claim) and the family law proceedings (which require a determination of how the property interests of the first and second defendants should be adjusted following the breakdown of their marriage), and there is no genuine risk of inconsistent findings if the two proceedings were heard and determined separately;
the plaintiffs’ claim and the first defendant’s cross-claim can be determined in this Court and, if the proceedings are not transferred, those claims are likely to be determined prior to the determination of the family law proceedings;
if the proceedings in this Court are determined first, that will assist the determination of the issues raised by the family law proceedings because the existence, enforceability and amount owing under the plaintiffs’ loan is directly relevant to identifying the defendants’ matrimonial asset pool in the family law proceedings. The Federal Circuit and Family Court of Australia could have regard to this Court’s judgment in these proceedings in identifying the asset pool before determining the applications for orders adjusting the interests of the first and second defendants in those assets; and
the transfer of these proceedings to the Federal Circuit and Family Court of Australia would delay the determination of these proceedings, and reduce the prospects of the first and second defendants negotiating a resolution of the family law proceedings because such negotiations would have to grapple with the uncertainty of the outcome in respect of the plaintiffs’ claim which concerns a potential substantial liability affecting the matrimonial asset pool. Those outcomes are contrary to s 56 of the Civil Procedure Act 2005 (NSW).
The second defendant, who is representing himself in these proceedings, submits that the two proceedings are factually interconnected, notwithstanding that these proceedings raise issues concerning contractual and equitable proprietary rights and the family proceedings raise issues concerning the adjustment of property interests. These proceedings are not a dispute about a commercial debt, but a dispute about financial assistance provided by parents to their daughter and son-in-law for the purchase of their family home. The second defendant submits that evidence given in these proceedings concerning that family transaction, the circumstances in which it was entered into, conversations between family members about the transaction, and the parties’ subsequent conduct (including the plaintiffs’ issue of a demand for repayment after the first and second defendants had separated) would be relevant to the family law proceedings. Although the Initiating Application filed in the family law proceedings did not seek any declaratory relief against the plaintiffs in respect of the alleged $4,000,000 liability or the loan agreement, the second defendant’s affidavit filed together with the Initiating Application did address those matters and the circumstances in which the loan agreement was executed. The second defendant’s case outline, filed subsequently, expressly identified the validity and treatment of the alleged loan as a substantive issue for final hearing in the family law proceedings.
I accept that this Court has jurisdiction in respect of the plaintiffs’ claim, the first defendant’s cross-claim, and the second defendant’s cross claim. I also accept that this Court is likely to be in a position to hear and determine those claims and cross-claims earlier than the Federal Circuit and Family Court of Australia is likely to be in a position to hear and determine the family law proceedings, which raise a larger number of issues and which include claims for parenting orders. I accept that the delay in the resolution of these proceedings that would likely result from at transfer of these proceedings to the Federal Circuit and Family Court of Australia would be inherently prejudicial to the plaintiffs, but the plaintiffs did not identify any specific prejudice that would flow from such delay (such as prejudice arising from their particular financial circumstances, their age and state of health, or any other life circumstances).
It is not possible for the Court to assess whether the first and second defendants might have better prospects of successfully negotiating a settlement of the family law proceedings if this Court were to first determine these proceedings. That would depend on many factors not known to the Court. In any event, the determination of these proceedings will not, by itself, quell the wider dispute in the family law proceedings.
I also accept that, if these proceedings are determined by this Court, the first and second defendants will be bound by the judgment and orders (subject of course to any appeal rights) and will not be entitled to relitigate in the family law proceedings the matters determined by this Court in these proceedings. This Court’s determination of those matters would inform the determination of the family law proceedings because it would be relevant to the identification of the net assets of the marriage.
In considering the interests of justice and the more appropriate forum for the determination of these proceedings, each of the matters referred to at [20] and [22] above provides some support for the conclusion that this Court is the appropriate forum. I regard the matter at [21] above as a neutral factor. However, those matters together with the other matters referred to below, considered as a whole, support the conclusion that the Federal Circuit and Family Court of Australia is the more appropriate forum.
These proceedings are not properly characterised as a mere contractual claim (as the first defendant put it) or a claim for the recovery of a commercial debt (as the plaintiffs put it). These proceedings are a dispute about the plaintiffs’ claimed equitable charge in the Randwick property, which is one of the significant assets forming part of the matrimonial asset pool of the first and second defendants, and the amount secured by any such charge. The submissions of the plaintiffs and both defendants acknowledge that the determination of the matters raised by these proceedings will impact on the net value of that asset pool which will be the starting point for the Federal Circuit and Family Court of Australia to determine the claims for orders adjusting the property interests of the first and second defendants in those assets. The issues raised for determination in the two proceedings are interconnected.
In my opinion, there is at least a serious risk that evidentiary matters traversed in the proceedings in this Court would have to be traversed again in the course of the Federal Circuit and Family Court of Australia hearing the wider dispute in the family law proceedings and determining the entitlements of the first and second defendants to the matrimonial asset pool. That is particularly so in respect of evidence of conversations alleged by the first defendant to have occurred between herself and the second defendant concerning the alleged loan from the plaintiffs and the defendants’ respective responsibilities concerning repayment. That is also so in respect of evidence relied on by the first defendant in support of her pleaded contentions in these proceedings that the loan monies were applied substantially for the benefit of the second defendant, that it would be unconscionable, unjust or inequitable for her to bear a greater share of the liability to the plaintiffs than the share properly attributed to her, and that the second defendant is liable to indemnify her or alternatively contribute to the liability in a proportion greater than 50%. I reject the submission made on behalf of the plaintiffs and the first defendant that there is no overlap of issues or factual matters between these proceedings and the family law proceedings.
It follows that allowing these proceedings to continue in this Court would likely lead to a duplication of evidence, time and costs for the first and second defendants. If the second defendant continues to appear for himself in these proceedings, that burden will sound not in terms of increased legal costs, but in terms of the increased time that he will be required to spend in order to represent himself and grapple with the competing demands of the two proceedings which will be on foot simultaneously. This will present particular challenges for him if he continues to be without legal advice and representation. For the first defendant, the increased legal costs will not be insignificant.
These proceedings, if not transferred to the Federal Circuit and Family Court of Australia, would be likely to be ready to be heard and determined prior to the family law proceedings. However, allowing that to occur would cause the duplication, inefficiency, and increased complexity and costs referred to above. As McGrath J observed in Liu v Jia [4] at [60], delay in the resolution of the issues in these proceedings which would result from the transfer of the proceedings to the Federal Circuit and Family Court of Australia is the side effect of avoiding that duplication, inefficiency, increased complexity and costs. As I have already noted, the plaintiffs do not identify any specific prejudice to them that would flow from that delay. This case is distinguishable from Pham v Enterprise ICT Pty Ltd, [5] in which Darke J apparently declined to transfer proceedings in this Court to the Federal Circuit Court of Australian in circumstances where the proceedings in this Court had been managed in the Real Property List for about nine months and were ready to take a hearing date. In the present case, the plaintiffs commenced their proceedings in this Court a little over four months ago and the proceedings are not yet ready to take a hearing date. The parties would need to expend further time and cost to prepare the matter for hearing, which will be duplicated if the proceedings are not transferred to the Federal Circuit and Family Court of Australia.
The plaintiffs’ statement of claim indicates that the alleged terms of the loan agreement entitled them to demand repayment of the loan at any time from 6 March 2025, yet demand was first made on 12 March 2026, after the breakdown of the first and second defendants’ marriage. That marital breakdown appears to be the occasion for the dispute that gave rise to the proceedings that the plaintiffs commenced in this Court, after the second defendant had commenced the family law proceedings. The relevance of the loan and the proprietary interest claimed by the plaintiffs in the Randwick property were made clear by the first defendant in correspondence concerning the family law dispute, even before the second defendant commenced the family law proceedings. The following observations of Brereton J in Valcevski v Valcevski at [77] are directly applicable to the present case:

It was open to the plaintiffs to apply to be joined to the family law proceedings pursuant to s 79AA(1) of the Family Law Act 1975 (Cth) and to prosecute their claims within those proceedings.
For all of those reasons, I consider that, having regard to the interests of justice, it is more appropriate that these proceedings be determined by the Federal Circuit and Family Court of Australia. Section 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) therefore requires that these proceedings be transferred to the Federal Circuit and Family Court of Australia.
Consistently with the approach taken by Brereton J in Nicita v Nicita [6] and McGrath J in Liu v Jia [7] the order will simply be for the transfer of these proceedings to the Federal Circuit and Family Court of Australia. It is a matter for that Court to determine the Division to which the proceedings are to be assigned and whether they are to be consolidated with or heard together with the family law proceedings. That Court will have the benefit of these reasons for the decision to transfer the proceedings in making those case management decisions.
It remains open to the plaintiffs in these proceedings to apply to be joined as parties to the family law proceedings. That may prove to be unnecessary depending on any case management orders made by the Federal Circuit and Family Court of Australia for the hearing of the family law proceedings and these proceedings.
My decision that these proceedings must be transferred to the Federal Circuit and Family Court of Australia renders it unnecessary to consider the second defendant’s alternative application for a stay.
For those reasons, the Court made the following orders on 2 October 2026:
Order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) that these proceedings be transferred to the Federal Circuit and Family Court of Australia.
Order that the parties’ costs of the second defendant’s application for transfer of these proceedings to the Federal Circuit and Family Court of Australia or, in the alternative, a stay of these proceedings, are to be the parties’ costs in the cause in the Federal Circuit and Family Court of Australia.