Eastgate and Cardiff & Anor

The case of *Eastgate and Cardiff & Anor* involved a husband who filed an application under the *Family Law Act 1975* (Cth) seeking to include property held by a New Zealand discretionary trust in property settlement proceedings. The wife and the trustees of this trust, who were also New Zealand citizens, sought a stay of the Australian proceedings to allow a New Zealand court to determine their application for a declaration that neither party had a personal interest in the trust property. The parties had resided in Australia for 15 of their 20 years together, and the trust, established by the wife, held property in both New Zealand and Australia.

The primary legal issue before the court was whether it should grant a stay of the Australian proceedings to permit a New Zealand court to determine the matter, pursuant to section 19 of the *Trans-Tasman Proceedings Act 2010* (Cth). This required the court to be satisfied that the New Zealand court had jurisdiction to deal with the matters in issue. A secondary issue arose in the alternative, where the wife and trustees sought a declaration from the Australian court regarding the applicable law to govern the trust.

The court dismissed the application for a stay, finding that it was not satisfied that a New Zealand court would have jurisdiction to deal with the matters in issue, particularly in light of section 7 of the *Property (Relationships) Act 1976* (NZ), which does not confer jurisdiction over "foreign immovable property" or certain "movable property" when parties are not domiciled in New Zealand. The court also noted the lack of authority supporting the submission that it could stay part of the proceedings to allow a New Zealand application to be decided. Furthermore, the court dismissed the alternative claim for a declaration as to the applicable law, finding no authority for an interlocutory judge to make such a binding order and no evidence before the court regarding the effect of applying New Zealand law to the trust.

Consequently, the applications for a stay and for alternative orders were dismissed. The court also made orders regarding the filing and service of any applications for costs.