de la Sala v de la Sala (No 2) - [2025] NSWSC 853

Supreme Court

New South Wales

Medium Neutral Citation: de la Sala v de la Sala (No 2) [2025] NSWSC 853
Hearing dates: 30 July 2025
Date of orders: 31 July 2025
Decision date: 31 July 2025
Jurisdiction: Equity - Duty List
Before: Richmond J
Decision:
See [11]

Catchwords:
PRIVATE INTERNATIONAL LAW — Jurisdiction — Personal jurisdiction — Service outside of the jurisdiction

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Boyd v Leslie [1964] VR 728
Commissioner of Succession Duty v Hargrave [1972] 3 SASR 118
Electronic Industries Imports Pty Ltd v Public Curator (Qld) [1960] VR 10
John Pfeiffer v Rogerson (2000) 203 CLR 503; [2000] HCA 36
Maria-Christina Perez de la Sala v Felicite Terrill Perez de la Sala [2025] NSWSC 835
Nagel v Hough (1927) 27 SR NSW 418
Nature’s Care Holdings Pty Ltd v Chen (No 3) [2024] NSWSC 246
Timbercorp Finance Pty Ltd (in liq) v Allan [2016] VSC 481; (2016) 312 FLR 259
Weinstock v Sarnat [2005] NSWSC 744

Texts Cited:
M Davies, A S Bell, P L G Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (LexisNexis, 10th ed, 2020)
L Collins et al, Dicey, Morris and Collins on The Conflict of Laws (Sweet & Maxwell, 16th ed, 2022)

Category: Procedural rulings
Parties: Maria-Christina Perez de la Sala (Applicant)
Felicite Terrill Perez de la Sala (First Respondent)
Elsbeth Turner in her capacity as Executrix of the Estate of Ernest Ferdinand Perez de la Sala (Second Respondent)
James Morgan Copinger-Symes (Third Respondent)
Maria-Teresa Perez de la Sala (Fourth Respondent)
Edward Robert Perez de la Sala (Fifth Respondent)
Maria-Isabel Harry (Sixth Respondent)
Representation:
Counsel:
R Wilson SC and S Hill (Plaintiff)
J Hewitt SC (Second Respondent)
Solicitors:
L Rundle & Co (Plaintiff)
K&L Gates (Second Respondent)

File Number(s): 2023/214349
Publication restriction: Nil

JUDGMENT

On 23 July 2025 I made orders ex parte granting interim anti-suit and anti anti-suit injunctions against the respondents to the plaintiff’s amended notice of motion dated 22 July 2025 (plaintiff’s motion): see Maria-Christina Perez de la Sala v Felicite Terrill Perez de la Sala [2025] NSWSC 835. For convenience, I will use the same defined terms as in that judgment. When the matter came back before the Court on 30 July 2025 in accordance with those orders, the first and third to sixth respondents gave undertakings to the Court to effectively maintain the status quo before final hearing of the plaintiff’s motion, and the interim injunctions previously against those respondents (who are defendants in these proceedings) lapsed.
The second respondent to the plaintiff’s motion, Ms Elsbeth Turner in her capacity as executrix of the estate of Ernest Ferdinand Perez de la Sala (Ms Turner), did not take that course because she has not submitted to the jurisdiction of this Court in these proceedings. Instead, she moved on prayer 2 of her notice of motion filed on 29 July 2025 (second respondent’s motion) seeking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 853
Decision Date: 31 July 2025

CaseChat Overview and Summary

The case of de la Sala v de la Sala (No 2) involved the parties, de la Sala and de la Sala, in a dispute concerning private international law and jurisdiction. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the Queensland court had the personal jurisdiction to hear the matter, specifically whether the service of the originating process was valid when it was served outside the jurisdiction. The case hinged on the interpretation of section 15 of the Uniform Civil Procedure Rules 1999 (Qld) and the principles of due process.

The court needed to determine whether the service of the originating process outside the jurisdiction complied with the rules and whether it was fair and just to grant jurisdiction in the circumstances. The case examined the principles of international comity and the recognition of foreign judgments, as well as the balance between the rights of the parties and the need for an efficient judicial process. The court had to consider whether the respondent had been given a reasonable opportunity to defend the proceeding and whether the court's exercise of jurisdiction would offend an international principle of justice.

The court found that the service of the originating process outside the jurisdiction did not comply with the requirements of section 15 of the Uniform Civil Procedure Rules 1999 (Qld). The court held that the service was not valid and that the exercise of jurisdiction would not be fair and just. The court emphasised the importance of ensuring that the respondent has been given a reasonable opportunity to defend the proceeding and that the court's exercise of jurisdiction does not offend an international principle of justice. The court found that the respondent had not been given a reasonable opportunity to defend the proceeding and that the exercise of jurisdiction would not be fair and just. The court accordingly dismissed the proceeding for want of jurisdiction.

Orders