Gepps Pty Ltd v O'Brien
[2020] VSC 448
•23 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2019 04318
| GEPPS PTY LTD | Plaintiff / Defendant by First Counterclaim |
| v | |
| CHRISTINE BARBARA O’BRIEN | Defendant / Plaintiff by First Counterclaim |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2020 |
DATE OF JUDGMENT: | 23 July 2020 |
CASE MAY BE CITED AS: | Gepps Pty Ltd v O’Brien |
MEDIUM NEUTRAL CITATION: | [2020] VSC 448 |
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PRACTICE AND PROCEDURE – Amendment to pleadings – Application to cross-vest the proceeding to the Supreme Court of Tasmania – Proper basis for amendment to defence and counterclaim – Avoid multiplicity of proceedings – Amendment to defence and counterclaim allowed – Evidentiary issues appropriate to be determined at trial – Proceeding cross-vested to the Supreme Court of Tasmania– Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.01 – Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5(2) – Tasmanian Land Company v Van Dairy Group Pty Ltd [2018] VSC 618.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C R Northrop | Matthew Shaw & Associates |
| For the Defendant | Mr S J Gannon | Antippa Lawyers |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
Evidence............................................................................................................................................... 3
Amendment Application.................................................................................................................. 4
Ms O’Brien’s submissions............................................................................................................ 4
Gepps’ submissions...................................................................................................................... 5
Analysis.......................................................................................................................................... 5
Cross-vesting application................................................................................................................. 8
Gepps’ submissions...................................................................................................................... 8
Ms O’Brien’s submissions.......................................................................................................... 11
Applicable principles.................................................................................................................. 12
Analysis........................................................................................................................................ 15
HER HONOUR:
The plaintiff, Gepps Pty Ltd, is the trustee of a family trust. It was controlled by Paul Harris (‘the deceased’) until his death. It is now controlled by his son, Nathan Harris. He is a director of Gepps and the executor of the deceased estate. Gepps is the registered proprietor of a residential property in Victoria. The defendant, Ms O’Brien, lives at the property and says that she lived there with the deceased, and was his domestic partner. After his death, she commenced proceedings in the Supreme Court of Tasmania for provision from the deceased estate. Some months later, Gepps commenced these proceedings seeking, unsuccessfully, summary possession of the property. The issue of ownership and possession was identified as more appropriate for determination at trial.
This ruling concerns two issues. Firstly, Ms O’Brien has made a counterclaim and wishes to amend her defence and counterclaim in respect of monies allegedly owed to her by the deceased. The amendment is opposed. Secondly, both parties agree that this proceeding and the Tasmanian one should be consolidated. There is a dispute as to which jurisdiction is most appropriate. Gepps seeks to have the consolidated proceeding in the Supreme Court of Tasmania.[1] Ms O’Brien seeks to have the consolidated proceeding in this Court.
[1]Supreme Court of Tasmania proceeding 2019/1053.
Summary
Ms O’Brien will be given leave to amend her defence and counterclaim.
The proceeding will be transferred to the Supreme Court of Tasmania.
Background
The deceased died on 7 September 2018.
On 2 May 2019, Ms O’Brien commenced the Tasmanian proceeding seeking provision pursuant to the Testators Family Maintenance Act 1912 (Tas) (‘Tasmanian TFM Act’).[2]
[2]Exhibit ‘DFMZ-1’ to the affidavit of Daniel Zeeman sworn 26 May 2020 (‘first Zeeman affidavit’).
On 18 September 2019, Gepps filed an originating motion in this Court seeking summary possession of property occupied by Ms O’Brien. Gepps is the registered proprietor of the property.
Orders made on 15 October 2019 by Derham AsJ contain the following background to the proceeding (‘the 15 October 2019 orders’), which I gratefully adopt.
B.The plaintiff is the trustee of the Harris Family Trust constituted by Deed of Settlement dated 5 February 1976, as amended by an amending Deed dated 5 January 1995 (Trust). The plaintiff claims to have purchased the Property as trustee of the Trust and became registered as proprietor on 23 September 2011.
C.At the time of the purchase of the Property the Trust was controlled by Paul Geoffrey Harris, who was the sole director of the plaintiff. Paul Geoffrey Harris died on 7 September 2018 (the Deceased). The defendant claims that she was the domestic partner of the deceased and that the Property was bought as her home with the Deceased in circumstances giving rise to a constructive trust in her favour. The defendant claims that she and the Deceased lived together on a bone fide domestic basis from 2011 until the Deceased died in 2018, a period of about 9 years.
The Other Matters of the 15 October 2019 orders, record the reasons for disallowing the application for summary possession. Firstly, Ms O’Brien had made a claim of constructive trust in respect of the property. The second reason and an additional finding follow.
D.The are two primary reasons why the Court declines to make an order under ord 53 of the [Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’)] that the plaintiffs recover possession of the Property:
…
(b)The provisions of the Trust include the power of the Trustee to permit the Property to be occupied by a beneficiary (Clause 6(f)) (occupancy clause). The clear inference is that the Deceased, as the sole director and moving mind of the plaintiff before he died, allowed the occupation of himself and the defendant pursuant to this power. The plaintiff contends that under the Trust as amended the defendant is not a beneficiary of the Trust. The defendant claims that under the terms of the Trust as amended the defendant, as a spouse of the Deceased, continues to fall within the objects of the Trust. There is an issue of construction in this respect. Further, the defendant contends that the notice to vacate the Property given by the plaintiff after the death of the deceased was given mala fides, in circumstances where the defendant is the plaintiff in a claim in the Supreme Court of Tasmania pursuant to the provisions of the Tasmanian Testator’s Family Maintenance Act 1912 and the plaintiff seeks to eject the defendant from her home. She claims to be entitled to continue to reside in the Property in accordance with the occupancy clause of the Trust pursuant to the permission given to her by the plaintiff when under control of the Deceased.
E.In addition the defendant contends that the circumstances under which the plaintiff was caused to be nominated as the purchaser of the Property, which the defendant claims was chosen by her as the ‘matrimonial home’ of her and the deceased, raises a matter to be investigated as to whether the Deceased advanced the moneys to the Trust for the purchase, giving rise to a purchase price resulting trust in favour of the estate of the Deceased. The fact that the inventory of assets of the estate of the Deceased shows a loan of approximately $1.281 m due to the estate of the deceased may support this claim.
The 15 October 2019 orders permitted the proceeding to continue as if filed by writ.
On 22 May 2020, Ms O’Brien’s solicitor sent an application to the Supreme Court of Tasmania seeking to have that proceeding transferred to this Court.
On the morning of 27 May 2020, Ms O’Brien filed a summons seeking to amend her defence and counterclaim. Later that day, Gepps filed a summons seeking to transfer the proceeding to the Supreme Court of Tasmania pursuant to cross-vesting legislation.
Evidence
Gepps relies on the affidavits of:
(a) Daniel Frederick Maria Zeeman sworn 26 May 2020 (‘first Zeeman affidavit’) and 5 June 2020. Mr Zeeman is the solicitor acting for Gepps in the Tasmanian proceeding; and
(b) Paul John Alice sworn 27 May 2020. Mr Alice is the Sydney-based solicitor acting for Gepps in this proceeding.
Ms O’Brien relies on:
(a) her affidavits sworn 10 October 2019 (‘first O’Brien affidavit’) and 22 May 2020 (‘second O’Brien affidavit’); and
(b) the affidavits of her solicitor Peter Gregory Antippa affirmed on 11 February 2020 and 5 June 2020 (‘second Antippa affidavit’).
Amendment Application
Ms O’Brien’s proposed amended defence and counterclaim is contained in Exhibit ‘CBO-12’ to her second ‘O’Brien affidavit. The proposed amendment pleads that by agreement with the deceased dated 17 November 2017, she agreed to loan Gepps $244,300 and that amount would be payable on the death of the deceased. It is pleaded this is partly oral, partly in writing (by an acknowledgement of debt signed by the deceased that day) and partly implied (by Ms O’Brien drawing a bank cheque dated 13 November 2017 from her account payable to Gepps). Ms O’Brien says that after the death of the deceased, a demand was made for repayment and, wrongfully, Gepps has not repaid the loan. She counterclaims for the amount plus interest.
Ms O’Brien’s submissions
The defence alleges a counterclaim and constructive trust over the property. All that is sought is an additional five paragraphs and amendment to the prayer for relief. This is a straight forward amendment for a liquidated sum. In her first affidavit, Ms O’Brien deposed as to the loan and also that the deceased paid it back. The situation has changed. After mediation, she reviewed her records and found the monies had not been repaid. At paragraphs [6]–[12] of the second O’Brien affidavit, she deposes as to the circumstances. There is evidence of the loan including the bank cheque and acknowledgement of debt, which are exhibited to the second O’Brien affidavit.[3] Her solicitor made a demand for the monies on 27 April 2020 and there was no reply.[4] There is no evidence of the debt having been repaid. Gepps could shed light on this issue and has not. Whether there is a debt is a matter for trial. Issues of credit are a matter for trial.
[3]Exhibits ‘CBO-7’to ‘CBO-10’ to the second O’Brien affidavit.
[4]Exhibit ‘CBO-11’ to the second O’Brien affidavit.
The application is made pursuant to r 36 of the Rules. If the proceeding is not amended, then it will give rise to a multiplicity of proceedings.
Gepps’ submissions
There is no evidence to support the amendment. There is no explanation for it. It is for a significant sum of money that was referred to explicitly in the first O’Brien affidavit as having been repaid. The allegation is that the payment was made by Ms O’Brien in November 2017 and was repayable on the death of the deceased, which was in September 2018. There is not a long period of time between those two events. What is more likely to have occurred is that the monies were repaid. That is what Ms O’Brien deposed in three earlier affidavits (two filed in the Tasmanian proceedings and the other being the first O’Brien affidavit). And so the explanation in the second O’Brien affidavit that has more closely considered the documents is a bare assertion. As to the alleged acknowledgement of debt by the deceased, it does not refer to a loan at all. It is not expressed in terms of a loan.
Given that there are three affidavits in which Ms O’Brien has deposed that the loan was repaid, the allegation it was not directly contradicts sworn evidence. There is no proper basis for the amendment.
The question of whether or not there is a loan exists is highly relevant to the Tasmanian proceedings.
Analysis
I agree with Ms O’Brien that this is a straight forward amendment. It is necessary to avoid multiplicity of proceedings and necessary for dealing with a real question in controversy between the parties. Rule 36.01(1)(a) and (c) of the Rules are applicable.
(1) For the purpose of—
(a)determining the real question in controversy between the parties to any proceeding; or
…
(c)avoiding multiplicity of proceedings—
the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
In paragraph [50] of an affidavit sworn on 29 April 2019 and filed in the Tasmanian proceeding,[5] Ms O’Brien deposes that she loaned the deceased $240,000 when he bought a property and was short of cash. Further that he “duly paid back the money”.
[5]Exhibit ‘DFMZ-2’ to the first Zeeman affidavit.
In an affidavit sworn on 12 August 2019 and filed in the Tasmanian proceeding,[6] Ms O’Brien deposes as to her financial situation. She does not refer to the loan and answers ‘nil’ to the question of whether she has any interest in any trust or deceased estate.
[6]Exhibit ‘DFMZ-3’ to the first Zeeman affidavit.
In the first O’Brien affidavit, Ms O’Brien reiterates paragraph [50] of her affidavit sworn on 29 April 2019.
However, in the second O’Brien affidavit at paragraphs [6]–[12], Ms O’Brien deposes:
In early November 2017 Paul Geoffrey Harris (“Paul”) requested a loan. We had just returned to our home at [Victorian property address] after visiting Tasmania. Paul went to his post box to collect his mail. When he returned to [Victorian property address] he was upset and told me he had a cash flow problem with a mortgage.
Paul asked me if I would help with his cash flow problem. From our relationship he was aware that I had recently received funds from the sale of my mother’s house. I said that I would help Paul as I loved and trusted him.
Paul was then the sole director and secretary of the plaintiff…
On 13 November 2017 I went to the ANZ Bank in [address] and obtained a bank cheque for the sum of $244,300 made out to the plaintiff, which I then gave to Paul…
…
Now produced and shown to me and marked “CBO-9” is a copy of my ANZ Bank statement showing withdrawal of the sum of $251,538 on 13 November 2017. The sum of $244,300 was for the bank cheque and the balance was money for our personal use.
By written acknowledgement signed 16 November 2017 Paul acknowledged that the sum of $244,300 was my property and was to be repaid to me in the event of his death. Now produced and shown to me and marked “CBO-10” is a copy of the acknowledgement.
It is not appropriate to make a finding of credit on the basis of affidavits filed in this interlocutory application. Ms O’Brien’s evidence on these issues is a matter more appropriately determined at trial.
I am satisfied there is a proper basis for the amendment given the second O’Brien affidavit together with the evidence of the bank cheque dated 13 October 2017 addressed to Gepps and in the sum of $244,300,[7] the receipt of the bank cheque indicating it was purchased by Ms O’Brien,[8] Ms O’Brien’s bank statement showing a withdrawal on 13 November 2017,[9] and the document which is said to be signed by the deceased and dated 16 November 2017.[10] It states:
14th November 2017
Please be advised that the undersigned being a director of GEPPS PTY Ltd authorises the transfer of $244,300.00 (two hundred and forty four thousand three hundred dollars) from the GEPPS ANZ Trading Account [account number].
The amount specified is the property of Ms C. O’Brien, [address in Penguin, Tasmania, and should be returned to her in the event of my death or incapacity.
P.G. Harris
16/11/17
[7]Exhibit ‘CBO-7’ to the second O’Brien affidavit.
[8]Exhibit ‘CBO-8’ to the second O’Brien affidavit.
[9]Exhibit ‘CBO-9’ to the second O’Brien affidavit.
[10]Exhibit ‘CBO-10’ to the second O’Brien affidavit.
On 27 April 2020, Ms O’Brien’s solicitors sent a letter demanding repayment of the alleged loan to Gepps’ solicitors.[11] As Ms O’Brien contends, Gepps has not provided any evidence that the monies were repaid.
[11]Exhibit ‘CBO-11’ to the second O’Brien affidavit.
Whether or not the monies advanced constitute a loan, and if so, whether or not it has been repaid, is a controversy to be determined at trial.
Cross-vesting application
The parties provided written and oral submissions on whether the proceeding should be transferred.[12] Their key submissions are summarised immediately below. Applicable principles were not in dispute and, where necessary, are referred to further below.
[12]Plaintiff’s written submissions filed 5 June 2020 and defendant’s written submissions filed 5 June 2020.
Gepps’ submissions
There does not seem to be any dispute that this proceeding is related to the Tasmanian proceeding. Tasmania is a more appropriate jurisdiction, the natural forum, for the following reasons.
Firstly, this is in essence a dispute about the deceased estate and whether or not Ms O’Brien is entitled to further provision. Probate was granted by the Supreme Court of Tasmania on 5 February 2019.[13] The administration of the estate is under the control of that Court. It is best placed to apply the Tasmanian TFM Act.
[13]Exhibit ‘NPH-1’ to the affidavit of Nathan Paul Harris sworn on 31 May 2019 in the Tasmanian proceeding 2019/1053, which forms Exhibit ‘DFMZ-5’ to the first Zeeman affidavit.
The assets of the deceased estate are located mainly in Tasmania. The primary beneficiary of the estate is in Tasmania. Clause 4 of the deceased’s will deals with the Harris Family Trust.[14] The deceased’s widow is not a primary beneficiary of income from the trust. The principal beneficiaries include the children of the deceased, not her. There are substantive gifts set out in the will. Clause 6 provides for a residential property to be given to the widow of the deceased. Clause 7 gives another property to two children of the deceased and gives his widow a life interest in it. Clause 9 provides for the deceased’s widow to be the residuary beneficiary.
[14]The deceased’s will dated 12 May 2008, in respect of which probate was granted to Nathan Harris and Michael John Bessell, is contained in Exhibit ‘NPH-2’ to the affidavit of Nathan Paul Harris sworn on 31 May 2019 in the Tasmanian proceeding 2019/1053, which forms Exhibit ‘DFMZ-5’ to the first Zeeman affidavit.
The Victorian property was not dealt with in the will and could not have been because the will predates its acquisition. There is an inventory of the assets and liabilities of the deceased estate.[15] The fourth line of assets refers to a loan to be repaid by Gepps to the deceased estate. There is no suggestion that the Victorian property formed part of the deceased estate.
[15]Exhibit ‘NPH-4’ to the affidavit of Nathan Paul Harris sworn on 31 May 2019 in the Tasmanian proceeding, which forms Exhibit ‘DFMZ-5’ to the first Zeeman affidavit.
Secondly, Ms O’Brien commenced the Tasmanian proceedings there and has the same solicitors in each State. Her affidavit in support of her application to the Tasmanian proceeding discusses assets of the deceased estate. Ms O’Brien has a home in Tasmania. Her affidavit refers to a property in Penguin, Tasmania. It is described as her home and that emerges from page 7 of her exhibit. At item 35, there is a reference to the home at Penguin. Her originating motion does not disclose any amount owing by Gepps to Ms O’Brien.
Thirdly, the proceedings are interdependent. All issues raised in the counterclaim here are material to the Tasmanian proceeding. The counterclaim seeks orders to the effect that the Victorian property forms part of the deceased estate, is owned beneficially by Gepps and held on trust for Ms O’Brien, and that she ought be allowed to occupy it until the Tasmanian proceeding resolves or orders are made for adequate provision from the deceased estate. If the Victorian property is held to be part of the deceased estate, then it will become the property of the residuary beneficiary, not Ms O’Brien. On the other hand, it will increase the value of shares in Gepps if it is found to be the owner of the Victorian property, and this will be to the benefit of the residuary beneficiary. So success in the counterclaim may decrease Ms O’Brien’s need for adequate provision in the Tasmanian proceeding. On the other hand, failure may increase her prospect of obtaining further provision from the deceased estate. The position of the residuary beneficiary will also be affected by the orders.
There is a dispute in the Tasmanian proceeding as to whether or not Ms O’Brien falls within the definition of ‘spouse’ in the Tasmanian TFM Act. It refers to the definition of ‘spouse’ in the Relationship Act 2003 (Tas). The factors to be taken into account include the degree of financial interdependence and the ownership, use and acquisition of property. So this question is squarely raised in the Tasmanian proceeding.
The Tasmanian TFM Act provides that the Court may fully enquire into the estate of the deceased person and will have regard to its net value and whether the person making an application is entitled to independent means so it focuses on means in the application and in the contents of order. There is no reference in any of the material that Ms O’Brien has filed in the Tasmanian proceeding to the property in question here is either constituting an asset of the deceased or as a property beneficially owned by Gepps or as a property belonging to her. One claim is for the property held on constructive trust to her benefit. If that is the case then it is necessary to take into account the proceeding in Tasmania.
Fourthly, there are significant factual issues common to both proceedings including the nature of the relationship between Ms O’Brien and the deceased, whether the Victorian property is part of the deceased estate or belongs to Gepps or Ms O’Brien. The closeness of the connection is demonstrated by the similarities in the first O’Brien affidavit and principal affidavit filed in the Tasmanian proceeding. There is the potential for serious conflict to arise in the decision of the two Courts.
In response to Ms O’Brien’s submissions, Gepps made the following further submissions.
At the time this proceeding was commenced, there was nothing to suggest the Victorian property was anything other than a property of the Harris Family Trust. There was nothing to suggest it would be affected by further provision in Tasmania. If Ms O’Brien was going to raise the issues in her counterclaim, she should have raised them in the Tasmanian proceeding.
There is nothing that points to Victoria as the natural forum for the dispute. The physical location of the property is neither here nor there. The equitable principles relied upon in the counterclaim do not depend on Victorian legislation.
As to the affidavits of Ms O’Brien’s witnesses, they are short and there is no reason why appropriate technical procedures could be put in place.
Ms O’Brien’s submissions
It is not in the interests of justice to transfer the proceeding to Tasmania. It is distinctly Victorian in character. Tasmania is not the natural forum to hear the dispute.
Firstly, the property is in Victoria and Ms O’Brien says the parties’ lived at that property together. She continues to live there.
Secondly, it is conceded that there are questions common to both proceeding. A primary issue is the relationship between Ms O’Brien and the deceased. They conducted their life as a couple in Victoria. There are draft affidavits of three witnesses who all live in Victoria. Ms O’Brien’s solicitor is in Victoria.
The connection to Tasmania is that the assets of the estate are in Tasmania. Mr Harris lives in Sydney and has solicitors in Sydney and Tasmania. He has, to date, maintained a steadfast distinction between his role as trustee of the family trust (as director) and his role as executor of the deceased estate.
Thirdly, it was necessary to commence the Tasmanian proceeding there because the grant of probate was made by the Supreme Court of Tasmania.
Fourthly, the questions to be decided in each proceeding are distinct. It is incorrect to say that different superior courts could reach different conclusions on the different issues. It is correct that the outcome in this proceeding will bear on Ms O’Brien’s financial resources.
Fifthly, the Tasmanian proceeding is not procedurally advanced. No affidavits in opposition have yet been filed.
Sixthly, Ms O’Brien has brought her own application for transfer of the Tasmanian proceedings to Victoria. A Victorian court could hear and determine the Tasmanian proceeding. The Tasmanian legislation follows the same format as the Administration and Probate Act 1958 (Vic). There are straight forward principles. It is not specialised legislation. It does not require expertise in Tasmanian law. A transfer to this Court would align and ensure an efficient case managed procedure to progress the family provision proceeding. There is a procedural Testator’s Family Maintenance list in this Court.
If neither proceeding is transferred it makes better sense for this proceeding to be decided first so that the assets of the estate and Ms O’Brien are clearly established. It will then be a question of case management of the proceedings and staying the Tasmanian proceeding. However, the delay in the Tasmanian proceeding is effectively achieving that outcome.
Applicable principles
Section 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) follows.
(2) Where–
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court (in this subsection referred to as the first court ); and
(b)it appears to the first court that–
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of another State or Territory and it is more appropriate that the relevant proceeding be determined by that other Supreme Court;
(ii)having regard to–
(A)whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory;
(B)the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (A) and not within the jurisdiction of the first court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C)the interests of justice–
it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;
the first court shall transfer the relevant proceeding to that other Supreme Court.
In Tasmanian Land Company v Van Dairy Group Pty Ltd,[16] Kennedy J set out the authorities as follows.[17]
[16][2018] VSC 618.
[17]Ibid [36]–[37].
In the High Court case of BHP Billiton Ltd v Schultz (Schultz), the Court highlighted that the cross-vesting legislation requires a court to ensure that cases are heard in the forum dictated by the interests of justice. No question of discretion arises. Rather, the court is required to consider which forum is the ‘natural forum’ on the basis of a consideration of relevant ‘connecting factors’, which do not include the plaintiff’s choice of forum.
In Irwin v State of Queensland (Irwin), a decision of Robson J of the Supreme Court of Victoria, his Honour considered the decision of Schultz as well as a decision of Gillard J in Ewins v BHP Billiton Ltd. His Honour then helpfully set out the relevant principles, which include:
(a)The Act requires that the [first] court should exercise the power of transfer whenever “it appears” that it is in the interests of justice that it should be exercised.
(b)It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that it appears that, in the interests of justice, the second court is more appropriate than the first court.
(c)The Court is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.
(d)The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so the interests of the respective parties, which might in some respects be common (as for example cost and efficiency) and in other respects conflicting, arise for consideration.
(e)The power to exercise the jurisdiction is not a discretionary power but a mandatory obligation. No question of discretion arises.
(f)It is inapt to speak of an applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. Rather the jurisdiction must be exercised when “it appears” to the court that “it is in the interests of justice” that the proceeding be determined in the Supreme Court of another State or Territory rather than the court of where the proceeding has been issued. Unless it so appears, the court does not have power under the Act to transfer the proceedings. To that extent it may be said that an applicant assumes some onus of persuasion.
(g)The court should adopt what has been described as a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute.
(h)The appropriate court is the natural forum as determined by connecting factors to that forum.
(i)Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction.
(j)In many cases there will be a preponderance of connecting factors with one forum so that it can readily be identified as the most appropriate of natural forum. In other cases, there might be significant connecting factors with each of the two different forums. Some of the factors might cancel each other out.
…
(o)The plaintiff’s choice of forum by itself is not a relevant connecting factor.
(p)Each case depends on its own particular facts.
…
Analysis
It is common ground between the parties that this proceeding and the Tasmanian one should be consolidated.[18] Such is their interconnection. Indeed, each party has made its own cross-vesting application. It is agreed that there are common questions to be decided in each proceeding concerning the nature of the relationship between Ms O’Brien and the deceased.
[18]Of course, following this ruling, whether or not the proceedings are consolidated and heard together, concurrently or sequentially is a matter for the Supreme Court of Tasmania.
It is in the interests of justice to transfer the proceeding to the Supreme Court of Tasmania. It is the more appropriate forum for the following reasons.
The allegations in the defence and counterclaim include the following:
(a) Ms O’Brien occupied the Victorian property with the express consent of the deceased as his de facto spouse. It is in issue between the parties whether that consent was in his personal capacity as the beneficial owner of the property or whether by Gepps in its own right because the deceased was the guiding mind of Gepps;
(b) there is no provision in the deceased’s will for Ms O’Brien and she claims provision from the deceased estate in the Tasmanian proceeding;
(c) between September 2011 and the death of the deceased in 2018, they lived at the Victorian property as their principal place of residence and they had a loving, sexual and affectionate relationship as a couple;
(d) the relationship between the deceased and Ms O’Brien was public and known by Mr Harris and indeed, they visited Mr Harris, stayed at his home and attended his wedding as a couple;
(e) the deceased and Ms O’Brien were engaged, and he had told Ms O’Brien he would look after her;
(f) the deceased asked Ms O’Brien to look for a property in which they could live together, and said that he would buy it and put it in her name. Ms O’Brien found the Victorian property and inspected the property prior to purchase. The deceased did not inspect the property or attend the auction and a friend bid on his behalf;
(g) given the representations above, Ms O’Brien assumed the deceased would take care of her welfare and make adequate provision for her proper maintenance and support whether personally or by Gepps or the Harris Family Trust;
(h) at all times the deceased was the sole director and controlling mind of Gepps and made the representations above personally and as a director of Gepps;
(i) with the encouragement and advice of the deceased, Ms O’Brien purchased a property in Penguin Tasmania with the intention they would temporarily reside there while they renovated the deceased’s farming properties and built their retirement home together;
(j) by reason of their relationship, the deceased was free and able to develop and maintain both his own assets and those of the plaintiff, including the Victorian property;
(k) Ms O’Brien cared for and supported the deceased during the illness which led to his death;
(l) Gepps should be estopped from obtaining possession of the Victorian property until such time as proper provision is made for Ms O’Brien’s proper maintenance and support;
(m) Ms O’Brien is a ‘spouse’ within the meaning of cl 1(a) of the Harris Family Trust and the discretionary beneficiaries of that trust include spouses;
(n) clause 6(f) of the Harris Family Trust deed contains a discretionary power for Gepps to allow any beneficiary to have custody or use of immovable property for the time being forming part of the trust fund. Insofar as the Victorian property was part of the trust fund, the deceased caused Gepps to exercise its discretion to permit he and Ms O’Brien to live there until his death;
(o) any benefit to Ms O’Brien in living at the Victorian property can be taken into account in considering what is proper provision for her in the Tasmanian proceeding;
(p) the source of funds which the deceased or Gepps used to purchase the Victorian property is unknown and in issue. The inventory of assets and liabilities of the deceased estate discloses a loan of $1,281,289 from the deceased to Gepps. The purchase price of the Victorian property was $1 million;
(q) insofar as the funds for the purchase of the Victorian property were advanced by the deceased personally, the property is held by Gepps upon resulting trust for the deceased estate; and
(r) alternatively, insofar as the funds for the purchase were partly by Gepps and partly by the deceased personally, the Victorian property is held by Gepps upon resulting trust for the deceased estate in proportion to his contribution to the purchase price.
A defence to the counterclaim has not been filed. It is evident from Gepps’ submissions that the counterclaim is opposed.
Tasmania is the more appropriate jurisdiction to decide these questions given the allegations, and particularly the relief sought, overlap with the Tasmanian proceeding. The Tasmanian proceeding is the main proceeding here. The real issue in dispute concerns the deceased estate and whether provision should be made for Ms O’Brien. Although the property is in Victoria, there is no reason that the Tasmanian Court could not make the appropriate determination. This proceeding does not require specialist expertise in Victorian law. On the other hand, and I accept that the provisions in the Tasmanian TFM Act concern principles that are not unique to Tasmania, the Tasmanian proceeding is brought under Tasmanian statute. The grant of probate is made in Tasmania. The inventory of assets and liabilities discloses that the deceased estate consists mainly of property in Tasmania and liquid assets.
The question of the relationship between Ms O’Brien and the deceased is not confined to Victoria. As is evident from Ms O’Brien’s purchase of the Penguin property, her own pleadings allege the relationship was not confined to Victoria.
As to witnesses, there are draft witness affidavits annexed to the second Antippa affidavit.[19] The first is of Philip Lewis. He says that he purchased the property as a friend of the deceased. The second is of Tanya Russo. She says that she was a neighbour to the deceased and Ms O’Brien. She refers to keeping watch over the Victorian property during the many trips to Tasmania by the deceased and Ms O’Brien. The third is of Keith Jackson. He says that he was a neighbour too. All the affidavits refer to the relationship between the deceased and Ms O’Brien. There is no evidence that the witnesses could not travel to Tasmania if required or provide evidence by videolink if appropriate. In the wake of the COVID-19 pandemic and the regular occurrence of electronic trials, the location of witnesses, parties and their instructing solicitors is perhaps now of less importance than it once was.
[19]Exhibit ‘PGA-17’ to the second Antippa affidavit.
Ms O’Brien is said to be of limited means, on a disability pension and in indifferent health and it is submitted that the Victorian property is close to her [treating] medical professionals. Again, there is no evidence that she could not either travel to Tasmania or provide evidence by videolink if appropriate. She has property there. Significantly, she has herself initiated proceedings in Tasmania. Whilst that may have been necessary for probate reasons, it demonstrates that she is able to instruct solicitors to act in that proceeding, and there is no reason she could not do likewise in respect of this proceeding.
Mr Harris resides in Sydney and will no doubt be a witness. He does not contend there would be any difficulties in providing evidence in Tasmania.
The deceased’s wife, the residuary beneficiary of his will, resides in Tasmania and may be a witness. The orders made in this proceeding may well impact upon her.
As to which Court is the most efficient or specialised, there is no evidence before me that suggests that there would be any significant delay in the proceeding being heard in Tasmania. As with this Court, there is the provision for e-filing and video hearings.
Finally, the evidence is that the Tasmanian proceeding is in its early stages. This proceeding is also in relatively early stages as pleadings are yet to be completed. Given that both are at an early stage, that will be conducive to case management of them together.
Adopting a ‘nuts and bolts’ approach, it is in the interests of justice that this proceeding be heard by the Supreme Court of Tasmania.
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