Australia, July 2 -- New South Wales Land and Environment Court issued text of the following judgement:

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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19743318a8382c906defbba3)

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