Perugini v Perugini

1. [1]

   By way of a summons filed on 5 June 2023, the plaintiff, Maria Perugini, seeks orders pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the Act) to have proceedings in the District Court of New South Wales removed to this Court and thereafter transferred to the Federal Circuit and Family Court of Australia (FCFCOA). The first defendant, Aldo Perugini, consents to the orders sought. The second defendant, ARP Developments Pty Ltd (ARP), was unrepresented in the proceedings, but is wholly owned and controlled by Mr and Ms Perugini who are directors and equal shareholders. Mr Perugini is also the company secretary.

Background

1. [2]

   The background to the matter was set out in affidavits by the plaintiff (sworn on 8 August 2023) and the plaintiff’s solicitor, Mr David Sutherland (affirmed on 12 September 2023) which were read without objection. The Court was also assisted by the written submissions of Mr Bryce Douglas-Baker, who appeared for the plaintiff.

2. [3]

   Mr and Ms Perugini were married in 1976 and separated on 5 January 2015. They have not finalised a divorce or entered into a binding financial agreement under Pt VIIIA of the Family Law Act 1975 (Cth). The second defendant was registered on 4 May 2000 and, through it, the plaintiff and first defendant jointly carried on a construction business.

3. [4]

   By a statement of claim filed in the District Court of New South Wales on 21 April 2021, the first defendant commenced proceedings against the second defendant for the recovery of a debt (the District Court proceedings). He claimed a total of $531,355 pursuant to an alleged contractor agreement and an invoice subsequently issued on 4 April 2023. Initially, the plaintiff was not a party to the District Court proceedings and the second defendant was unrepresented. Through a letter from his solicitor dated 17 May 2023, the first defendant refused the plaintiff’s request to have the second defendant represented. The plaintiff was joined as a party to the District Court proceedings by orders of the Judicial Registrar on 14 July 2023.

4. [5]

   On 2 June 2023, the plaintiff filed an initiating application in the FCFCOA seeking financial (property) orders and, as part of that process, the determination of the first defendant’s claim against the second defendant and the winding up of the company. A court-ordered mediation between the plaintiff and first defendant took place on 18 August 2023, during which the parties agreed to seek to have the District Court proceedings removed to this Court and transferred to the FCFCOA. The parties undertook to give effect to that agreement by way of consent orders issued by the FCFCOA on 24 August 2023.

5. [6]

   The parties obtained consent orders from the District Court on 23 August 2023, in which they agreed to do all things reasonably necessary to bring about a transfer of the District Court proceedings to this Court, and from this Court to the FCFCOA.

The cross-vesting legislation

1. [7]

   Section 8 of the Act relevantly provides:

2. [8]

   As observed by Davies J in Amaca Pty Ltd v Mortimer [2023] NSWSC 117 at [4], the test for removing proceedings from another court in New South Wales into this Court is not a particularly demanding one:

3. [9]

   The relevant test for the transfer of proceedings from this Court to the FCFCOA is provided by s 5(1) of the Act, which provides as follows:

4. [10]

   In Comino v Kremetis [2023] NSWSC 32 at [70], Chen J summarised the well-established authorities considering the s 5(1)(b)(ii)(C) “residual provision”, namely, whether it is in “the interests of justice” to transfer proceedings from this Court:

Consideration and determination

1. [11]

   The terms of s 8(1)(b) of the Act contemplate that a transfer of proceedings to this Court may be made so as to facilitate a transfer from this Court to the FCFCOA. In my view, the evidence and the submissions made by the plaintiff warrant consideration of a transfer from this Court to the FCFCOA. I am accordingly of the view that the proceedings should be transferred from the District Court to this Court.

2. [12]

   I am satisfied that it is in the interests of justice for the proceedings to be transferred from this Court to the FCFCOA. It is clearly the more appropriate jurisdiction, given the close nexus of the second defendant to the property interests of the plaintiff and first defendant that arise from their employment during the course of their marriage.

3. [13]

   It is also appropriate, for the same reasons, that costs of the cross-vesting application should be costs in the cause.

Orders

1. [14]

   I make the following orders: