Du Bray v McIlwraith

[2009] NSWSC 888

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

1. 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.

2. 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 1980 (NZ), the Domestic Actions Act 1975 (NZ) and the Property (Relationships) Act 1976 (NZ).

3. I shall refer to the New Zealand enactments just mentioned as “the FPA Act (NZ)”, “the DA Act (NZ)” and “the PR Act (NZ)” respectively. The Property Relationship Act of New South Wales will be referred to as “the PR Act (NSW)”.

The present applications

4. Competing applications in these proceedings were heard by me on 13 August 2009.

5. Ms McIlwraith has entered no appearance. She applies under rule 12.11(1)(b) of the Uniform Civil Procedure Rules 2005 for an order setting aside service of Mr Du Bray’s statement of claim. She also seeks an order staying the proceedings. The applications are brought by notice of motion filed on 14 April 2009.

6. Mr Du Bray applies, by notice of motion filed on 15 April 2009, for orders restraining Ms McIlwraith from taking any further step in the New Zealand proceedings commenced by her and from commencing or continuing any action against Mr Du Bray under any of the New Zealand enactments mentioned.

Threshold matters

7. This present proceeding and the proceedings commenced by Ms McIlwraith in New Zealand arise from the same circumstances, namely, that Mr Du Bray and Ms McIlwraith lived together in a domestic relationship outside marriage for a period of about fourteen years from early 1995 and that that relationship has ended. The claims, in each case, concern property and financial matters.

8. Before questions of substance are addressed, it is as well to note some important threshold matters. The most important is probably that it is accepted that each court – this court in these proceedings commenced by Mr Du Bray and the Family Court in New Zealand in the proceedings commenced by Ms McIlwraith – has jurisdiction in relation to the parties and the financial aspects of their affairs following the termination of their relationship. So much is accepted by them, even though there are some questions about the extent of the jurisdiction exercisable in each case.

9. A second matter goes to timing. Although, as I have said, the originating process in these proceedings was filed before the originating processes in the New Zealand proceedings were filed, the evidence warrants an inference that each party retained lawyers in both countries at an early stage. A New Zealand lawyer retained by Ms McIlwraith wrote to Mr Du Bray on 3 February 2009 with a view to exploring the possibility of a property settlement between the parties (although the emphasis was on seeking a consensual outcome, the letter made it obvious that legal proceedings were in Ms McIlwraith’s mind.) New Zealand lawyers for Mr Du Bray replied the very next day, 4 February 2009. Thus, while the statement of claim in theses proceedings was filed on 13 February 2009, it cannot be said that the proceedings subsequently commenced in New Zealand by Ms McIlwraith were merely a response or reaction to Mr Du Bray’s New South Wales proceedings. It is more consonant with the realities of the situation to regard the respective proceedings as having arisen together out of the breakdown of the relationship.

10. A third matter to be noted is that neither proceeding has advanced far beyond its inception. In each case, only limited evidence has been filed. And just as this court has been asked, through the applications now before me, to find that the proceedings in one country should be afforded precedence over the proceedings in the other, so too Mr Du Bray has taken steps in the New Zealand court to challenge that court’s jurisdiction on forum non conveniens grounds.

11. A fourth matter warranting preliminary comment is the parties’ connections with the respective jurisdictions. The relationship began in Auckland, where the parties met. On the evidence as it stands at this point, it appears that they lived together in Auckland for some four and a half years until August 1999, when they moved to Western Australia. At a later stage, from about November 2001 to September 2007, they lived in Sydney, after which Ms McIlwraith alone went to London for study purposes and remained there until July 2008 when she returned to Sydney where Mr Du Bray continued to reside. Within a few days, Ms McIlwraith moved to Auckland and set up a home for herself and Mr Du Bray. He, while still apparently based in Sydney, made frequent trips to Auckland and involved himself in home preparations. The facts thus briefly related emerge from the evidence as it stands at this point.

12. While, in due course, aspects of this outline may become the subject of contrary evidence, it is clear that substantial periods were spent by the parties in both New Zealand and New South Wales during their relationship. The longest period of continuous co-habitation (of the order of six years) was in New South Wales. The home was re-established in New Zealand about six months before separation. The first four and a half years or so had also been spent in New Zealand.

13. These circumstances – coupled with the fact that Ms McIlwraith was born a New Zealand citizen and became an Australian citizen in 2002 and that Mr Du Bray is an Australian citizen but, according to Ms McIlwraith, satisfies the residence qualification to become a New Zealand citizen – demonstrate a substantial connection of the parties and their relationship with both New Zealand and New South Wales.

Possible outcomes

14. From Ms McIlwraith’s perspective, the optimal position sought is that the New Zealand proceedings continue to the exclusion of these proceedings. From Mr Du Bray’s perspective, the optimal position sought is that these proceedings proceed to the exclusion of the New Zealand proceedings.

15. On the applications presently before me, the outcome that can emerge is:

(a) that these proceedings be stayed either permanently or until the New Zealand proceedings have been determined; or

(b) that Ms McIlwraith be restrained from pursuing the New Zealand proceedings, either permanently or until these proceedings have been determined;

(c) that each party may continue his or her proceeding without restraint imposed by this court.

16. I turn now to consider the respective claims.

Mr Du Bray’s claims in these proceedings

17. In these present proceedings, Mr Du Bray claims orders as follows:

“1. That the Defendant pay to the Plaintiff the sum of $450,000.00 pursuant to section 20 of the Property Relationships Act(1984) NSW within 28 days.

2. That the Plaintiff indemnify the Defendant in relation to loans made by the Plaintiff to the Defendant or any company or entity associated with the Defendant.

3. That the Defendant vacate within 14 days the premises situated at and known as [address], Auckland, New Zealand.

4. That the Plaintiff be declared to be entitled to the contents of [same address] with the exception of the Defendant’s jewellery, consumables, shoes and clothing.

5. Interest.

6. Costs.”

Ms McIlwraith’s claims in the New Zealand proceedings

18. In the proceedings she has commenced under the PR Act (NZ), Ms McIlwraith seeks orders:

“1. Classifying all property of the relationship as either movable or immovable.

2. Determining the respective shares of myself and the abovenamed respondent in our relationship property.

3. Declaring the status and ownership of any property of myself and/or the abovenamed respondent not being relationship property.

4. Vesting specific items of relationship property in each of the respondent and myself absolutely or in such shares as this Court deems fit.

5. Such further or other Orders as the Court deems just and expedient.”

19. By a separate application also under the PR Act (NZ), Ms McIlwraith seeks an order permitting her to occupy “the former matrimonial home” at the particular address in Auckland.

20. In her proceeding under the DA Act (NZ), Ms McIlwraith claims orders:

“a) determining the nature and extent of the property of my relationship to the respondent; and

b) directing the same of all or part of the property and the division or settlement of the proceeds in such shares and upon such terms as the Court thinks fit; and/or

c) partitioning or dividing the property; or

d) vesting property owned by the respondent in each or either of us as tenants in common in such shares as this Court thinks fit; and/or

e) declaring that property owned jointly shall be owned as tenants in common in such shares as this Court thinks fit; and/or

f) directing the respondent to pay me such sum or sums of money as this Court thinks fit.”

21. Ms McIlwraith has also initiated two distinct applications for spousal maintenance under the FPA Act (NZ), one for interim maintenance and the other for permanent maintenance.

The New Zealand statutory regime

22. The New Zealand statutory provisions are the subject of expert evidence in the form of a report by Professor Nicola Peart of the University of Otago, whose specialised field of legal study and research is property division on the breakdown of domestic relationships. It is appropriate that I summarise the general effect of those provisions.

23. I begin with the PR Act (NZ). That Act applies alike to married couples, “civil union couples” and couples who live together in a de facto relationship. Section 1N states the underlying principles:

“The following principles are to guide the achievement of the purpose of this Act: 

(a) the principle that men and women have equal status, and their equality should be maintained and enhanced: (b) the principle that all forms of contribution to the marriage partnership, civil union, or the de facto relationship partnership, are treated as equal; (c) the principle that a just division of relationship property has regard to the economic advantages or disadvantages to the spouses or partners arising from their marriage, civil union, or de facto relationship or from the ending of their marriage, civil union, or de facto relationship; (d) the principle that questions arising under this Act about relationship property should be resolved as inexpensively, simply, and speedily as is consistent with justice.”

24. Professor Peart comments as follows on that section and the preceding s 1M:

“The Courts commonly refer to sections 1M and 1N. They are reflected in the following core values that underpin decision making under this Act:

· The Act does not distinguish between a marriage, civil union and de facto relationship. However, it is important to note that this is true only for de facto relationships that have endured for at least 3 years . . . 

· The Act is premised upon contributions to the relationship, not contributions to property.

· The principle of equality dominates the Act:

i. the parties are equal in status; ii. they are presumed to contribute equally to their relationship; and iii. all forms of contributions are equal. See s 18 where contributions are defined to include financial and property contributions, domestic contributions, childcare as well as assistance and support of the other partner. Section 18(2) states that monetary contributions are not to be presumed to be of greater value than non-monetary contributions.

· To ensure a just division, the Court is empowered to award compensation for economic disparity that arises from the division of functions within the relationship.

· The Act seeks to resolve relationship property claims simply, efficiently and inexpensively. Parties are encouraged to settle their claims by agreement. Proceedings are brought only if the parties cannot agree and are confined to those matters that remain at issue.”

25. The PR Act (NZ), according to Professor Peart, “replaces the general law”, so that, for example, constructive trust principles that formerly applied are displaced by it.

26. The “de facto relationship” concept relevant to the operation of the PR Act (NZ) is such that, on the evidence as it currently stands, the relationship between Mr Du Bray and Ms McIlwraith is within the concept. Each of them therefore has a right to apply for relief under the PR Act (NZ). Section 25(1)(a) provides that the court may, on such an application, make any order it considers just:

“(i) determining the respective shares of each spouse or partner in the relationship property or any part of the property and (ii) dividing the relationship property or any part of that property between the spouses or partners.”

27. Professor Peart outlines as follows the method of proceeding under the PR Act (NZ):

“Division of property under the PRA involves ten steps:

1. identifying the assets beneficially owned by each party at separation 2. classifying their assets as movable or immovable property 3. classifying those assets as relationship property or separate property 4. valuing those assets 5. classifying the parties’ debts as personal debts or relationship debts and deducting them from the relationship property 6. dividing the relationship property between the parties 7. compensating one or both parties for post separation contributions 8. compensating a party whose rights under the Act are defeated by dispositions of relationship property to trust or companies 9. compensating a party for economic disparity resulting from the division of functions within the relationship 10. Orders and costs.”

28. I should make particular reference to step 2. Section 7 of the PR Act (NZ) is in these terms:

“(1) This Act applies to immovable property that is situated in New Zealand. (2) This Act applies to movable property that is situated in New Zealand or elsewhere, if 1 of the spouses or partners is domiciled in New Zealand -

(a) at the date of an application made under this Act; or (b) at the date of any agreement between the spouses or partners relating to the division of their property; or (c) at the date of his or her death.

(3) Despite subsection (2), if any order under this Act is sought against a person who is neither domiciled nor resident in New Zealand, the Court may decline to make an order in respect of any movable property that is situated outside New Zealand.”

29. Professor Peart comments on this as follows:

“In regard to immovable property the Court’s jurisdiction is limited to immovable property in New Zealand. The Act follows the general conflicts of law principle that rights to immovable property are governed by the lex situs. Accordingly, the Court of Appeal held in Samarawickrema v Samarawickrema [1995] 1 NZLR 14 (CA) that the Court had no jurisdiction to make an order that directly or indirectly affected land overseas. Such property cannot be classified as relationship property, nor can it be divided between the parties.”

30. I consider next the FPA Act (NZ). That Act too applies in relation to marriage, civil union and de facto relationship. Section 64(1) is in these terms:

“Subject to section 64A, after the dissolution of a marriage or civil union or, in the case of a de facto relationship, after the de facto partners cease to live together, each spouse, civil union partner, or de facto partner is liable to maintain the other spouse, civil union partner, or de facto partner to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse, civil union partner, or de facto partner, where the other spouse, civil union partner, or de facto partner cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).”

31. Section 64A imposes a requirement that each party assume, within a reasonable time, responsibility for meeting his or her own needs. Section 64(2) sets out a number of causative factors that must be addressed upon an application for maintenance. Provision is made in s 82 for interim maintenance orders.

32. Professor Peart’s opinion canvasses in some detail (by reference, of course, to Ms McIlwraith’s untested account of relevant matters) the likely outcome of Ms McIlwraith’s applications under the PR Act (NZ) and the FPA Act (NZ). She does so on the footing that real property in Australia must be left out of account. The details of the analysis and the conclusion may be left to one side for present purposes. It is sufficient to record that, in Professor Peart’s opinion, Ms McIlwraith is likely to be awarded maintenance (although not on any long-term basis, given that she is young, without child-care responsibilities and qualified and experienced so as to obtain employment fairly readily), interim occupation of the Auckland home (possibly subject to payment of rent) and a substantial sum of money.

33. Ms McIlwraith’s proceedings under the DA Act (NZ) are not covered by Professor Peart’s report. The stated purpose of that Act is to abolish common law actions for adultery, enticement of spouse, harbouring a spouse or child, enticement or seduction of a child and breach of promise to marry. An added purpose is “to provide for the settlement of property disputes arising out of the termination of agreements to marry”. It is under this last-mentioned aspect of the legislation that Ms McIlwraith brings her action. She alleges an agreement to marry, made in September 2002, termination of that agreement and entitlement “to be returned to the position I would have occupied had the agreement not been made”.

Mr Du Bray’s claims and a particular matter concerning New Zealand land

34. With this conspectus of the New Zealand legislation, the claims brought by Ms McIlwraith in New Zealand and Professor Peart’s opinion in mind, I turn to consider Mr Du Bray’s application under the PR Act (NSW). As has been seen (paragraph [17] above), he claims an order that Ms McIlwraith pay him money, an order that he indemnify Ms McIlwraith against loans made by him to her (so that, one gathers, she does not have to repay the loans) and an order that Ms McIlwraith give him possession of the xxx property in New Zealand.

35. A key submission made by Dr Bell SC on behalf of Ms McIlwraith is that the last-mentioned order, if made by this court, would be of no utility because it would not be enforceable in New Zealand in respect of the New Zealand real property.

36. Dr Bell accepted that, by virtue of the Jurisdiction of Courts (Foreign Land) Act 1989 of New South Wales, the jurisdiction of this court is not excluded or limited merely because the proceedings relate to land outside New South Wales. That is the effect of s 3 which abolishes the rule in British South Africa Co v Companhia de Mocambique [1893] AC 602 under which an English court had no jurisdiction to adjudicate upon the right of property in or (importantly, for present purposes) the right to possession of foreign immovables, even though the parties may be resident or domiciled in England. Under s 4 of the Jurisdiction of Courts (Foreign Land) Act, a New South Wales court is not required to “exercise jurisdiction under this Act if the court considers that it is not the appropriate court to hear the proceedings”.

37. Dr Bell then focussed attention on the Reciprocal Enforcement of Judgments Act 1934 (NZ), which I shall call “the REJ Act (NZ)”. That Act is concerned with a “judgment” (defined to include any order made in civil proceedings) and draws a distinction between a “money judgment” and a “non-money judgment”. An order that one person give possession of land to another is within the definition of “non-money judgment”. Part 1 of the Act deals with registration in the High Court of New Zealand of certain foreign judgments. The person in whose favour a particular foreign non-money judgment has been given (called the “judgment creditor”, even though money is not payable under the judgment) may apply for such registration – but only if, first, the non-money judgment is a “specified non-money judgment” for the purposes of Part 1 and, second, the judgment is a judgment of (relevantly, for present purposes) a superior court of a country to which Part 1 extends. Registration is a pre-requisite to enforcement of a foreign judgment in New Zealand.

38. By virtue of s 3(2) of the REJ Act (NZ), coupled with the Reciprocal Enforcement of Judgments Order 1940 (NZ), Part 1 of the Act extends to New South Wales and this court is designated a “superior court”. The second of the conditions just mentioned is therefore satisfied. For the first condition to be satisfied, however, it would be necessary for s 3B(1) to give a non-money judgment of this court the status of a “specified non-money judgment”. Section 3B(1) causes to be “specified non-money judgments” such non-money judgments of a relevant superior court (including this court) as are the subject of an order made by the Governor General of New Zealand under that section. The evidence of Mr Vickerman, a New Zealand barrister, is that no orders have been made by the Governor General under s 3B(1).

39. It follows, it seems to me, that any order that this court made requiring Ms McIlwraith to deliver possession of the Auckland property to Mr Du Bray would be a “non-money judgment”, as defined by the REJ Act (NZ), but would not be a “specified non-money judgment”, with the result that it could not be registered under Part 1 of the Act.

40. Dr Bell also referred to Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760 where it was held that principles of comity do not have, in relation to the recognition and enforcement of foreign judgments, a wider operation than the REJ Act (NZ).

41. An order of this court conferring a right to possession of New Zealand land could not be enforced against the land by process of a New Zealand court. But it may be going too far to say that, as a result, this court is powerless, in these proceedings, in relation to the New Zealand land (compare Professor Peart’s comment at paragraph [29] above about the mirror-image jurisdiction of the New Zealand court). It seems likely that, under s 38(1)(h) of the PR Act (NSW), this court could, as a matter of statutory power, grant a permanent injunction enjoining Ms McIlwraith from continuing in possession of the New Zealand land. Whether it would, in reality, do so as a matter of discretion in circumstances where the only apparent sanction (by way of committal for contempt and consequential steps) lay against a person resident and for the time being physically outside the jurisdiction is, however, a separate and significant question.

42. The overall conclusion must be that this court either cannot effectively grant or would be unlikely to grant an order in the present proceedings securing and compelling the result that Mr Du Bray seeks with respect to the Auckland residential property, that is, that Ms McIlwraith give him possession of it.

Whether the claims brought in one jurisdiction could be brought in the other

43. Having thus examined the question of relief in relation to land, I should pay attention to the wider and more general question whether, in other respects, the party who has chosen to sue in a particular jurisdiction (that is, Mr Du Bray in New South Wales and Ms McIlwraith in New Zealand) could pursue in the other jurisdiction the claims actually initiated in the chosen jurisdiction.

44. In Mr Du Bray’s case, the position seems to me to be straightforward. If he were to sue in New Zealand, the PR Act (NZ) would clearly support an order that Ms McIlwraith pay money to him, an order that he indemnify her against debts she owes him and an order that she deliver up to him possession of the Auckland property. The scope of ss 25 to 32 of the PR Act (NZ) and the ancillary powers of the court under s 33 are sufficient to enable the New Zealand court to make all the orders that Mr Du Bray seeks in these New South Wales proceedings, although it must be said at once that the principles upon which the New Zealand court, applying the PR Act (NZ), would proceed in addressing claims for such orders would not correspond with those that this court would apply under the PR Act (NSW).

45. As Professor Peart says of the PR Act (NZ) in her report, “the principle of equality dominates the Act”; the parties “are presumed to contribute equally to their relationship”; and “all forms of contributions are equal”. There is, under s 11 of the PR Act (NZ), a statutory presumption of equality of sharing in the family home, the family chattels and any other relationship property. Where the relationship has lasted for more than three years, the presumption can be rebutted only if there are extraordinary circumstances that make equal sharing repugnant to justice: s 13. The presumption is very difficult to rebut: Martin v Martin [1979] 1 NZLR 97.

46. The PR Act (NSW) does not adopt any such prima facie position of equality. While it is true that contributions as homemaker or by way of emotional support extended to a breadwinner are not less relevant or less deserving of weight than the material and financial contributions of that breadwinner and that, in that sense, all forms of contribution are equal (Kardos v Sarbutt [2006] NSWCA 11; (2006) 34 Fam LR 550), the inquiry is always as to the extent and worth of the respective contributions actually made. It is by reference to the result of that inquiry that the New South Wales court must decide under s 20 what is just and equitable: Evans v Marmont (1997) 42 NSWLR 70. There is certainly no presumption of equal contribution: Black v Black (1991) 15 Fam LR 109. Nor do the parties’ needs play any direct part in the statutory assessment.

47. Under s 15 of the PR Act (NZ), the court has special powers where, on division of the relationship property, it is satisfied that the income and living standards of one party after the end of the relationship are likely to be significantly higher than those of the other because of the effects of division of functions within the relationship while the parties were living together. The section empowers the court to order the party enjoying the likelihood of higher income and living standards to make a payment to the other party. This provision operates after the general principles of the legislation have been applied to produce a division of relationship property. Professor Peart’s report refers to an award under this provision as an award of “compensation for economic disparity”. There is, of course, no corresponding concept or remedy under the PR Act (NSW).

48. In Ms McIlwraith’s case, there are at least four forms of relief sought in the New Zealand proceedings that this court would not or might not grant in proceedings under the PR Act (NSW). The first is compensation for economic disparity as just mentioned.

49. Second, Ms McIlwraith seeks maintenance in the New Zealand proceedings. Her claims in that respect and Professor Peart’s assessment of them are discussed at paragraph [29] above. The assessment is that some award will be made. Under the PR Act (NSW), however, the court can award maintenance only if the applicant has child care responsibilities or has suffered adverse effects on earning capacity by the circumstances of the relationship: see s 27. Ms McIlwraith has no children and no child care responsibilities and worked as a solicitor (first in New Zealand and later in both New South Wales and Western Australia) until 2001 when she resigned to be with Mr Du Bray in New South Wales where he was pursuing business opportunities. If, as seems most likely, the relationship did not curtail Ms McIlwraith’s ability to earn a living as a solicitor again, she is in no position to claim maintenance under the PR Act (NSW).

50. Third, Ms McIlwraith seeks an order under the PR Act (NZ) permitting her to occupy property in Auckland: see paragraph [19] above. The principles already discussed regarding enforcement in New Zealand of orders of this court requiring delivery of possession of New Zealand land (see paragraphs [37] to [42] above) make it highly unlikely that this court would make such an order in proceedings under the PR Act (NSW).

51. Fourth, an action of the kind Ms McIlwraith’s has initiated under the DA Act (NZ) (see paragraph [20] above) has no counterpart in New South Wales. In Australia, as in New Zealand, the cause of action for breach of promise to marry has been abolished (see Marriage Act 1961 (Cth) s 111A) but there is no statutory basis in New South Wales for adjusting the property interests of persons formerly engaged to be married unless the additional elements necessary to ground an action under the PR Act(NSW) are also present.

52. It is thus clear that the proceedings Ms McIlwraith has initiated in New Zealand are based, as to a substantial part, on causes of action not available in New South Wales and that those proceedings are capable of producing for her results that cannot be achieved by suing in New South Wales.

The legal principles to be applied

53. Against this background, I turn to the question whether the litigation initiated by one party should be made to take precedence over the litigation initiated by the other party, in the sense that one action should be pursued to its conclusion to the exclusion of the other or, in the alternative, before there is resort to any residual scope for the other to produce additional – and, in essence, supplementary – results.

54. In approaching that question, I must have regard to the following passage in the joint judgment of Dawson J, Gaudron J, McHugh J and Gummow J in Henry v Henry[1996] HCA 51; (1996) 185 CLR 571 at 591:

“[T]he problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or other should be seen as vexatious or oppressive within the Voth sense of those words.”

55. The concluding reference here is, of course, to Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 where it was emphasised that, in deciding whether a stay of local proceedings should be ordered, the question to be addressed is whether the local court is a clearly inappropriate forum; not as to the appropriateness or comparative appropriateness of the foreign forum. If the local court is a clearly inappropriate forum, a stay will ordinarily be ordered because it is, in the relevant sense, “vexatious” or “oppressive” to the defendant for the plaintiff to continue to press his or her claims in that court.

56. In the light of the subsequent decision in CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345, it seems clear that the “clearly inappropriate forum” approach is apt only where, as it were, each court is able to deal with the whole of the controversy marked out by the totality of the litigation in both countries. Dawson J, Toohey J, Gaudron J, McHugh J, Gummow J and Kirby J there said, at 400-401:

“In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are "productive of serious and unjustified trouble and harassment" or "seriously and unfairly burdensome, prejudicial or damaging". 

57. Their Honours went on to say that the trial judge had fallen into error by considering only whether New South Wales was an appropriate forum for litigating the issues in the New South Wales proceedings “and not whether, having regard to the controversy as a whole, the NSW proceedings are vexatious and oppressive, in the Vothsense of those terms”. As Mr Livingstone pointed out, the need to consider the controversy as a whole has been recognised by the Full Court of the Family Court of Australia as applicable alike to the question whether local proceedings should be stayed and the question whether pursuit of foreign proceedings should be enjoined: In the Marriage of Dobson and Van Londen [2005] FamCA 479; (2005) 33 Fam LR 525 at [46].

58. At a later point in the joint judgment in CSR v Cigna (also at 401), it was said that proceedings that are brought for the dominant purpose of preventing another party from pursuing remedies available in the courts of another country and not available in this country are “seriously and unfairly . . . prejudicial [and] damaging” and therefore oppressive in the Voth sense. The quoted words – which also appear in the passage set out at paragraph [56] above - are from the judgment of Deane J inOceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 at 247.

Assessment

59. Although Mr Du Bray’s proceedings in this court were commenced before Ms McIlwraith filed her several initiating processes in New Zealand, the true position, as I have said (at paragraph [9]), is that the two pieces of litigation proceeded together out of the breakdown of the parties’ relationship. Mr Du Bray had lawyers in New Zealand advising him on 4 February 2009, that is, before he commenced his proceedings in this court. On that day, his New Zealand lawyers responded to the letter of 3 February 2009 from Ms McIlwraith’s New Zealand barrister seeking to explore the possibility of a property settlement but obviously contemplating legal proceedings if that could not be achieved. I accept the submission made on Mr Du Bray’s behalf by Mr Livingstone that the jurisdictional prerequisites to proceedings under the PR Act(NSW) exist but, in light of the matters just mentioned, Mr Du Bray must be taken to have initiated his proceedings under that Act in the full knowledge of the nature and extent of the claims that Ms McIlwraith might seek to bring in New Zealand (that is, the claims that she in fact brought on 27 March 2009) and with the intention of creating a platform from which he could seek to obtain a stay of anticipated New Zealand proceedings in which Ms McIlwraith sought to vindicate those claims – claims, it must be emphasised, that, for the several reasons stated, are wider and more comprehensive as to both rights and remedies than claims open to Ms McIlwraith in New South Wales.

60. It follows that Mr Du Bray’s New South Wales proceedings are of the oppressive character referred to at paragraph [58]. That oppressive character is amplified by the fact that, for reasons already canvassed, the relief Mr Du Bray seeks in respect of the Auckland property is either relief that this court cannot effectively grant or would be unlikely to grant. Submissions on behalf of Ms McIlwraith suggested that the oppressive character of the New South Wales proceedings is further amplified by the extreme unlikelihood that any monetary award would be made in favour of Mr Du Bray and against Ms McIlwraith under the PR Act (NSW). That submission was made on the basis of an assessment of the evidence as it stands at this point. There is some force in that submission, given that the great bulk of the parties’ wealth seems to reside with Mr Du Bray but I am reluctant to afford much weight to the proposition at this early stage.

61. Subject to two possible qualifications that I am about to mention, the conclusion that the present proceedings initiated by Mr Du Bray are oppressive in the relevant sense means that this court should order that they be permanently stayed. To the extent that he considers himself to have claims of the kind he seeks to litigate in these proceedings, he may pursue those claims by way of cross-claims in the New Zealand proceedings – a course that will, in any event, see him on much firmer ground, as a matter of jurisdiction, with respect to the claim for an order for possession of the New Zealand real property.

62. The first possible qualification comes from the circumstance that proceedings under the PR Act (NZ) are, according to Professor Peart’s report, incapable of producing orders directly or indirectly affecting land outside New Zealand. It may be that proceedings under the PR Act (NSW) would be, in due course, an appropriate vehicle for such claims. But, of course, Mr Du Bray does not seek any order directly or indirectly affecting land outside New Zealand. In so far as he seeks specific relief in relation to land at all, he seeks it in relation to land in New Zealand. The limitation upon the PR Act (NZ) jurisdiction with respect to land should thus not cause this court to qualify the conclusion that these proceedings should be permanently stayed.

63. The second possible qualification goes to the question whether the stay should subsist only until the New Zealand proceedings have been concluded. That approach might be appropriate if there were some element of the relief sought in the New South Wales proceedings that could not be obtained by Mr Du Bray by cross-claiming in the New Zealand proceedings, so that these proceedings needed to be kept alive, although dormant, so that that aspect might in due course be addressed. No such need exists. For reasons already noted, all the claims Mr Du Bray seeks to pursue here can be pursued by him in the New Zealand proceedings and, as a matter of jurisdiction, his claim for possession of New Zealand land rests on a much more secure foundation in that country.

59. Neither of the postulated qualifications operates.

Disposition

65. The orders of the court are accordingly as follows:

1. Order that the notice of motion filed by the plaintiff on 15 April 2009 be dismissed. 

2. Order that these proceedings 1492/09 be permanently stayed. 

3. Order that the plaintiff pay the defendant’s costs of both the notice of motion filed by the defendant on 14 April 2009 and the notice of motion filed by the plaintiff on 15 April 2009. 

66. In view of Order 1, there is no real need to deal with the defendant’s claim for an order that service of the statement of claim be set aside.

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Amendments

11 May 2020 - Paragraph [34] - anonymised reference to property

Decision last updated: 11 May 2020