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Du Bray v McIlwraith

Du Bray v McIlwraith

Case [2009] NSWSC 888 1 September 2009

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Du Bray v McIlwraith [2009] NSWSC 888
Hearing dates: 13/08/09
Decision date: 01 September 2009
Jurisdiction: Equity
Before: Barrett J
Decision:
Proceedings permanently stayed. Application for anti-suit injunction dismissed.

Catchwords: PRIVATE INTERNATIONAL LAW - forum non conveniens - stay of proceedings - anti-suit injunction - one party to terminated de facto relationship sues in New South Wales under property adjustment legislation - other party sues in New Zealand under several statutes relevant to property rights after termination - each seeks to halt progress of the other's litigation - need to identify whole of controversy from both proceedings - first party seeks in New South Wales relief that court cannot effectively grant or unlikely to grant - that relief available in New Zealand - aspects of second party's claims in New Zealand not maintainable in New South Wales - New South Wales proceedings are in the particular circumstances oppressive and should be stayed
Legislation Cited: Domestic Actions Act 1975 (NZ)
Family Proceedings Act 1980 (NZ), ss 64, 82
Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), ss 3, 4
Marriage Act 1961 (Cth) s 111A
Property (Relationships) Act 1976 (NZ), ss 1M, 1N, 7, 11, 15, 25, 26, 27, 28, 29, 30, 31, 32, 33
Property Relationships Act 1984 (NSW), ss 20, 27, 38(1)(h)
Reciprocal Enforcement of Judgments Act 1934 (NZ), ss 3(2), 3B(1)
Uniform Civil Procedure Rules 2005 (NSW), rule 12.11(1)(b)
Cases Cited: Black v Black (1991) 15 Fam LR 109
British South Africa Co v Companhia de Mocambique [1893] AC 602
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345
Evans v Marmont (1997) 42 NSWLR 70
Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760
Henry v Henry [1996] HCA 51; (1996) 185 CLR 571
In the Marriage of Dobson and Van Londen [2005] FamCA 479; (2005) 33 Fam LR 525
Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550
Martin v Martin [1979] 1 NZLR 97
Oceanic Sun Line Special Shipping Co Ltd v Fay [1988] HCA 32; (1988) 165 CLR 197
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Category: Principal judgment
Parties: Lee Francis Du Bray - Plaintiff
Sarah McIlwraith - Defendant
Representation:
Counsel:
Mr P J Livingstone - Plaintiff
Dr A S Bell SC/Mr N J Beaumont/Mr D G Healey - Defendant
Solicitors:
Watson & Watson - Plaintiff
Barkus Doolan Kelly - Defendant

File Number(s): SC 1492/09

Judgment

Introduction

These proceedings were commenced by statement of claim filed by Mr Du Bray on 13 February 2009. The defendant is Ms McIlwraith. Mr Du Bray’s claims are advanced under the Property Relationships Act 1984.
Ms McIlwraith commenced separate proceedings against Mr Du Bray on 27 March 2009. On that day, Ms McIlwraith filed several applications in the Family Court at North Shore, Auckland, New Zealand. The applications were made under the Family Proceedings Act

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.

Continue reading Du Bray v McIlwraith

Details

AGLC: Du Bray v McIlwraith [2009] NSWSC 888
Case: [2009] NSWSC 888
Decision Date: 1 September 2009

CaseChat Overview and Summary

The case of Du Bray v McIlwraith involved a dispute between two parties in relation to property matters arising out of a terminated de facto relationship. The plaintiff, Du Bray, filed proceedings in the Supreme Court of New South Wales, seeking relief under the Property (Relationships) Act 1984 (NSW). The defendant, McIlwraith, filed proceedings in a New Zealand court under various statutes relevant to property rights following the termination of a relationship. Each party sought to halt the other's litigation through a stay of proceedings or an anti-suit injunction.

The central legal issues revolved around whether the New South Wales proceedings should be stayed due to the forum non conveniens doctrine and whether an anti-suit injunction was warranted. The court had to consider the whole of the controversy, encompassing both the New South Wales and New Zealand litigation, and determine whether the New South Wales court was the appropriate forum for the plaintiff's claims. Additionally, the court had to assess whether the plaintiff's claims in New South Wales were maintainable and whether the New South Wales proceedings were oppressive.

The court held that the New South Wales proceedings should be stayed as they were oppressive in the particular circumstances. The whole of the controversy included both sets of proceedings, and the court determined that the relief sought by Du Bray was unlikely to be granted in New South Wales, whereas it was available in New Zealand. Furthermore, some aspects of McIlwraith's claims in New Zealand were not maintainable in New South Wales. Consequently, the court concluded that the New South Wales proceedings were inappropriate and should be stayed. The court also granted an anti-suit injunction to prevent Du Bray from continuing with the New South Wales proceedings.

The final orders of the court included a stay of the New South Wales proceedings and the grant of an anti-suit injunction to McIlwraith, prohibiting Du Bray from continuing with the litigation in New South Wales. The court's decision emphasised the importance of considering the whole of the controversy and the appropriateness of the forum in which the proceedings were brought.

Orders