Hiralal v Hiralal

[2013] NSWSC 984

Supreme Court

New South Wales

Medium Neutral Citation:	Vidyagauri Hiralal v Nitin Hiralal & Ors [2013] NSWSC 984
Hearing dates:	23 & 24 August 2012
Decision date:	29 July 2013
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	Motion dismissed
Catchwords:	EQUITY - trusts and trustees - removal of trustees - recovery of trust assets - proceedings commenced in New South Wales by one of three trustees of a testamentary trust created under will admitted to probate in Fiji - whether New South Wales Supreme Court has jurisdiction to determine the proceedings - whether defendants have been served personally within jurisdiction - whether defendants have been served outside jurisdiction in accordance with UCPR Pt 11 - whether leave to proceed should be given under UCPR Pt 11 - defendants issued subpoenas and filed an unconditional appearance - application for leave to withdraw appearance - whether defendants have submitted to jurisdiction - whether New South Wales is a clearly inappropriate forum for their determination.
Legislation Cited:	Administration and Probate Act 1958 (Vic) s 33 Civil Procedure Act 2001, s 63 Corporations Act 2001 ss 169, 178, 1070A(4) Probate and Administration Act 1898 (NSW) ss 40, 107 Supreme Court Rules 1970 Pt 10 r 2A, s 81 The Hague Convention on the Law Applicable to Trusts and on their Recognition 1984, Articles 6, 7, 21 Trusts (Hague Convention) Act 1991 (Cth) s 6 Uniform Civil Procedure Rules 2001 r 6.19, r 11.2, 11.3, 11.4, 11.6, 11.7, 12.11, 13.4, Schedule 6 (a), (i), (j), (m), (n), (o), (p) and (u), Part 25
Cases Cited:	Australian Olympic Committee Inc v The Big Fights Inc [1999] FCA 1042 Australian Securities and Investments Commission (ASIC) v Sweeney (No 2) [2000] NSWSC 1211 Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743; [2001] NSWSC 477 Baldry v Jackson [1976] 1 NSWLR 19 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 Brookfield v Davey Products Pty Ltd 25 September 1998, Mansfield J, Federal Court of Australia, unreported Brougham v Poulett (1855) 19 Beav 119; 52 ER 294 Brown v Holt [1961] VR 435 Burke v Dawes [1938] HCA 6, (1938) 59 CLR 1 Cambridge Credit Corporation Ltd v Lissenden (1987) 8 NSWLR 411 Carrick v Hancock (1895) 12 TLR 59 Cash v Nominal Defendant (1969) 90 WN (Pt 1) (NSW) 77 Chellaram v Chellaram [1985] Ch 409 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Damberg v Damberg (2001) 52 NSWLR 492 Dawson v Perpetual Trustee Co (Ltd) (1953) 89 CLR 138 Easterbrook v Young (1977) 136 CLR 308 Easterbrook v Young [1974] 1 NSWLR 676 Electronic Industries Imports Pty Ltd v Public Curator of Queensland [1960] VR 10 Ex parte The Public Trustee; Re Birch (1951) 52 SR (NSW) 345 Garsec v His Majesty Sultan of Brunei (2007) 213 FLR 331; [2007] NSWSC 882 George Attenborough & Son v Solomon [1913] AC 76 Haque v Haque [No 2] (1965) 114 CLR 98 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 Henry v Henry (1995) 185 CLR 571 Hooper v Summersett (1810) Wight 16 Howard v National Bank of New Zealand Ltd (2002) 121 FCR 366, [2002] FCA 1257 Hutchinson & Anor v Bank of Scotland Plc [2012] QSC 28 In the Estate of Constantinou [2012] QSC 332 In the Estate of Dunn (decd) [1963] VR 165 Jabbour v Custodian of Israeli Absentee Property [1954] 1 All ER 145 Jaques v Public Trustee of Qld as Executor and Trustee of the Estate of Jaques decd [2008] QSC 108 Juul v Northey [2010] NSWCA 211 Laurie v Carroll (1958) 98 CLR 310 Martin v Martin (1903) 3 SR (NSW) 156. Mccorquodale v Guth [2008] NSWSC 1420 Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 Nagel v Hough (1927) 27 SR (NSW) 418 National Commercial Bank v Wimborne (1978) 5 BPR 11,958 National Commercial Bank v Wimborne (1979) 11 NSWLR 156 Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 222 Nolan v Nolan [2004] VSCA 109 Nudd v Taylor [2000] QSC 344 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Pagels v MacDonald (1936) 54 CLR 519 Paramasivam v Flynn (1998) 90 FCR 489 Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338 Piatek v Piatek (2010) 245 FLR 137; [2010] QSC 412 Puttick v Tenon Ltd [2008] HCA 54 (2008) 238 CLR 265 Re Claremont [1923] 2 KB 718 Re McPhail (decd) [1971] VR 534 Re Mustang Marine Australia Services Pty Ltd (in liq) [2013] NSWSC 360 Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145; (1995) 129 ALR 295 Re Pratt (decd) [1964] NSWR 105; (1963) 80 WN (NSW) 1416 Rein v Stein (1892) 66 LT 469 Saliba v Falzon 1 July 1998, Supreme Court of NSW, Young J, unreported Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 Somportex Ltd v Philadelphia Chewing Gum Corp [1968] 3 All ER 26 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 Stokes v Churchill; Estate of Fryer (1994) NSW ConvR 55-694 Studorp Ltd v Robinson [2012] NSWSC 148 Studorp Ltd v Robinson Robinson v Studorp Ltd [2012] NSWCA 382 Tory v Megna [2012] NSWCA 41 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Walker v Newmont Australia Ltd [2010] FCA 298 Webb (decd), In the Estate of; Webb v Rogers (1992) 57 SASR 193 Webb v Webb [1992] 1 All ER 17 Weinstock v Sarnat [2005] NSWSC 744 Wood v Inglis [2008] NSWSC 1427
Texts Cited:	J D Heydon, M J Leeming, Jacobs' Law of Trusts in Australia LexisNexis Butterworths, Australia, 2006 J Harris, The Hague Convention, Hart Publishing 2002 F.C.Hutley, "The Executor De Son Tort in the Law of New South Wales", 25 ALJ 716 Mason and Handler Succession Law and Practice NSW LexisNexis Nygh's Conflict of Laws in Australia, Lexis Nexis Australia 2010 Williams, Mortimer and Sunnucks, Executors Administrators and Probate, 16th Edition, Sweet and Maxwell, p93
Category:	Interlocutory applications
Parties:	Plaintiff:- Vidyagauri Hiralal First Defendant:- Nitin Hiralal Second Defendant:-Vinod Gokal Third Defendant:- Vibha Hiralal
Representation:	Counsel: Plaintiff:- N. Allan Defendants:- S.J.Stanton; T. Flaherty Solicitors: Plaintiff:- Harish Prasad & Associates First and Second Defendants:- Gateway Legal Third Defendant:-
File Number(s):	2012/82834
Publication restriction:	No

Judgment

1. The point for determination in this judgment is whether this Court has jurisdiction to grant remedies for alleged maladministration of a trust created under a will admitted to probate in Fiji, or whether they must be adjudicated in Fiji. The plaintiff, one of three executors and trustees of the will, and a beneficiary of a trust created by the will, has commenced proceedings here in New South Wales. The other two executors claim by motion that the proceedings were not validly commenced in this jurisdiction, and that even if they were, they should in any event be remitted to Fiji for hearing.

The Issues on the Motion

1. The plaintiff, Vidyagauri Hiralal (Vidya) was married to the late Hiralal Bhagwandas (Bhagwan) for 57 years until his death on 12 June 2010 in Nadi, Fiji. Bhagwan's will appointed three executors and trustees, the deceased's wife, Vidya, the deceased's son, Nitin Hiralal (Nitin) and the deceased's friend, Vinod Gokol (Vinod). Throughout these reasons I will refer to the Hiralal family members by their full or shortened first names, as was done in submissions; and I hope without disrespect to any of them.

1. Bhagwan's will gave all his property to his trustees: to hold on trust until Vidya died or remarried; and after that, the remainder of his property would be distributed among his six children equally. The High Court of Fiji granted probate of the deceased's will on 11 February 2011.

1. Vidya's case is that: she has been excluded from the administration of Bhagwan's estate; has been given no information about the deceased's assets and liabilities; has received limited financial benefit from the trusts created under the will; and, has been left to depend upon the generosity of another son, Harawadan (Hari). She contends that some of the assets, which devolved through the estate and are now held by the trustees on trust for her, are located in New South Wales. And so, she commenced proceedings in this jurisdiction against her co-trustees Nitin and Vinod, as first and second defendants respectively seeking: recovery of these assets and their management under the terms of the trust, and the removal of her two co-trustees on account of their alleged maladministration of the trust.

1. Vidya adds allegations that some of the assets belonging to the estate are held in the name of Nitin's wife, Vibha Hiralal (Vibha). So she too has been joined as the third defendant in the proceedings, and relief for the recovery of those assets is sought against her.

1. Nitin, Vinod and Vibha contest Vidya's allegations on several grounds. They contend that: (1) the plaintiff has not invoked the Court's ancillary jurisdiction in respect of what is a foreign trust by the proper service of originating process upon them, and that the defendants have not as yet submitted to the jurisdiction of this Court; and in the alternative, (2) New South Wales is a clearly inappropriate forum for the determination of the issues the plaintiff raises.

1. Mr N Allan of counsel appeared for the plaintiff in the proceedings and Mr S Stanton of counsel appeared for all three defendants.

Hiralal Family members in the proceedings

1. Vidya and Bhagwan had six children, Bhupendra, Ramesh, Nitin, Hariwadan (Hari), Puspa and Urvashi. The first defendant, Nitin, a commercial airline pilot with Air Pacific, currently lives in Fiji with his wife Vibha, the third defendant.

1. Hari lives in Sydney. He is not a party to these proceedings. Since Bhagwan's death he has provided close support to Vidya, and has been involved in correspondence with the defendants in relation to the estate. Vidya seeks in her Amended Summons that Hari replace Nitin and Vinod, as trustees of the trust created under the will.

1. Ramesh has sworn an affidavit opposing Nitin's removal as trustee, but has not otherwise been involved in the proceedings. None of the other siblings has played any role in the proceedings.

1. Vibha currently lives in Fiji. The evidence suggests that she is an Australian citizen. The evidence also suggests that although Vinod, has business ties with Fiji, he currently resides in New South Wales.

Procedural history

1. Vidya commenced these proceedings by Summons filed on 14 March 2012. The Summons sought: interim relief for the payment of money from the trust, and final relief for the removal of the first and second defendants, Nitin and Vinod, as trustees of the trust and the appointment of Hari in their place as trustee.

1. The plaintiff sought to amend her Summons at the hearing. Mr Allan handed up a draft form of Amended Summons. The case was argued on the basis that, should the Court find that it has jurisdiction, the plaintiff will seek leave to file the Amended Summons. The additional relief sought by the proposed amendments falls into three categories.

1. First, in the proposed Amended Summons Vidya seeks an account in relation to her co-executors and co-trustees' administration of the estate and the trust. Secondly, as an alternative to removal of the first and second defendants as trustees, Vidya seeks orders for monthly distributions to her from the trust of A$6,250. Thirdly, she seeks relief related to a substantial sum of money ("the fund") allegedly deposited into the third defendant's, Vibha's, bank account in October 2008. The relief sought in the proposed Amended Summons includes: (1) orders granting Vidya probate ad colligenda bona of Bhagwan's estate in New South Wales for the limited purpose of protecting the fund; (2) a declaration that the fund, together with any interest accrued thereon, is now held on trust for Vidya in her capacity as trustee of the trust established by Bhagwan's will; and, (3) orders restraining the defendants from dealing with the fund and requiring them to take steps to transfer the fund to the plaintiff.

1. On 25 May 2012 Nitin and Vinod filed the motion raising the issues decided in these reasons. The motion seeks: (1) that the proceedings be dismissed pursuant to Uniform Civil Procedure Act r 13.4 as vexatious or frivolous, disclosing no reasonable cause of action, or as an abuse of process; (2) that the Summons be struck out as disclosing no reasonable cause of action, because the testamentary trust is under the jurisdiction of the High Court of Fiji; (3) a declaration that the Summons may not be validly served under UCPR r 11.2, because it discloses no reasonable cause of action; (4) and, an order that service of the Summons on the defendants be set aside.

1. Nitin and Vinod's Motion was supported by an affidavit of Mr Vijay Naidu, the defendants' solicitor: confirming that his clients do not submit to the jurisdiction of this Court; setting out the circumstances in which the probate of the estate was granted in Fiji; attaching the correspondence between Vidya and the defendants in relation to the administration of the trust; and outlining that, so far, no proceedings for administration of the trust have been commenced in Fiji and no resealing of the probate of Bhagwan's will has yet occurred in New South Wales.

Bhagwan, Vidya and their family

1. The Hiralal family has ties with Fiji, Australia, and India, ties that contribute to the foreign elements in this matter. Bhagwan is variously referred to in the documentary evidence as: Hiralal Bhagwandas, Hiralal Hiralal and Hiralal Bhagwandas Solanki. But these reasons will refer to him simply as "Bhagwan".

1. Bhagwan and Vidya migrated to Fiji from India in 1954. Bhagwan operated business ventures in Fiji, first with his father and brother, and later with some of his sons. Through successive corporate vehicles, B H Solanki and Co, Hira Solanki & Co and recently, Hiralal Investments Limited ("Hiralal Investments"). At the time of Bhagwan's death, Nitin and Bhagwan were directors of Hiralal Investments, a family property development vehicle. Nitin has continued acting as a sole director of this company after his father's death.

1. Vidya did not work for remuneration outside the family home during her husband's life. But Bhagwan, successful in business, funded her domestic and personal expenses including clothing and jewellery, and paid her a monthly allowance.

1. Bhagwan executed the will admitted to probate on 15 June 1993. The will, described in more detail later in these reasons, was intended to ensure that Vidya was provided for during her life, none of Bhagwan's property would pass to his children while Vidya was alive and unmarried.

1. In 2006, after over 50 years living in Fiji, Bhagwan and Vidya, moved to Australia, in part to join one of their sons, Hari, who had already settled in Sydney.

1. On their arrival Bhagwan and Vidya first lived in manager's quarters at the motel Hari operated in Greenacre in Sydney. But in 2009 they moved to a detached rented dwelling at the rear of Hari's Strathfield house. The same year they severed one important material tie with Fiji, when they sold their house in Suva.

1. After their 2006 move to Sydney, Bhagwan and Vidya visited Fiji several times. In late 2009 Nitin invited them to visit there once again. He bought them air tickets for January 2010. Both Vidya and Hari say: initially this trip was intended as just another holiday; and that before his departure Bhagwan had organised care services and doctors' appointments for his proposed return in 2010. But after their arrival in Fiji Nitin arranged permanent accommodation for his parents and arranged a carer for Bhagwan. Vidya says that they were not happy about this turn of events. But they stayed in Fiji. A few months later, on 13 June 2010, Bhagwan died.

1. After Bhagwan's death Vidya remained in Fiji for a period. At Nitin's suggestion she moved in with him and his wife, Vibha. Her account is that she agreed to give up her independent accommodation but was not happy about it. Within a few days of Bhagwan's funeral Nitin organised for the unit that she occupied to be vacated and cleaned.

1. Vidya's evidence is that in late 2010 Nitin began preparations for her to move to India, where some of her family still lived. He told her he would rent a house for her in India. He proposed closing some of her bank accounts and transferring the balances of those accounts and redirecting the payment of her allowance, to India.

1. Vidya says that she was not happy living with Nitin in Fiji. Nor did she want to live in India. In March 2011 she travelled back from Fiji to Sydney at Hari's invitation. Vidya confirms that about that time Nitin transferred to her approximately A$16,500, being the proceeds of bank accounts that, she says, he had previously closed.

1. Vidya is now 77. Her only source of income is from Bhagwan's estate. Hari pays the rent for the Strathfield house where she lives. She has personal savings of approximately A$30,000, saved from the allowance had Bhagwan paid her before his death. She has approximately A$18,000 deposited in a bank account in Australia, money which was previously held in an account in her and Bhagwan's name. She uses money from this account when necessary. She has received some payments from the estate, which will be detailed later in these reasons. She estimates her total annual financial needs, including travel, spending money, and rent at A$78,620 (or A$1,500 per week).

Bhagwan's will and Hiralal family property

1. Bhagwan's 1993 will provided for Vidya's needs during her lifetime and then divided his estate among his six children. The will (clause 4) established the following trust:

GIVE all the rest reminder and residue of my property of whatsoever kind or nature and wheresoever situated (including any cash that should be remaining after payment of any debts) of which I may be possessed or entitled to or over which I may have any disposing power at the time of my death to my trustees on the trusts set out in this clause:

i. My trustees will let my wife have a free use of my home any my chattels for her lifetime while she remains unmarried.

ii. My trustees will give to my wife such sums of money from either the income or capital of my estate until her death or earlier remarriage.

Upon the death (or remarriage) of my wife, my surviving trustees will DIVIDE AND DISTRIBUTE such of my estate as shall then be remaining whether the same consists of capital or income or both) between my following children:

A. Bhupendra Kumar;

B.Ramesh Chandra;

C. Nitin Chandra;

D. Hariwadan;

E. Pushpa; and

F. Urvashi

In equal shares for their own use and benefit absolutely as tenants in common.

1. After providing a substitutional gift upon the death of any of his children, Bhagwan's will conferred powers upon his trustees in the execution of their trust, including powers of sale, powers of leasing, powers of mortgaging and powers of improving the assets of this estate.

1. At the time of his death Bhagwan did not directly own any real estate in Fiji. He held investment properties through Hiralal Investments, and other corporate vehicles. In 2009, after three years in Australia Bhagwan and Vidya sold their family home in Suva, Fiji, the home in which they had lived at the time of Bhagwan's 1993 will. And they did not acquire a new home in either Fiji or Australia. So at his death Bhagwan did not have an asset which answered the description in clause 4i of Bhagwan's will, "my home", and that part of the trust lapsed. As the later analysis shows the remaining part of the trust for Vidya is a general discretionary trust for her benefit.

1. In November 2010 in Fiji, Nitin, Vinod and Vidya executed the documents for a grant of probate of Bhagwan's will. Vidya says that the effect of the grant of probate was not explained to her at the time, and that in any event she is unable to read documents in English. On 11 February 2011 Bhagwan's will was admitted to probate by the High Court of Fiji in Suva.

1. The extent of Bhagwan's property at the time of his death is disputed. Vidya says she did not have a clear understanding of the extent of her husband's assets. Her evidence is that he told her, that they had enough assets that she did not have worry about her future.

1. The November 2010 estate accounts put the gross value of Bhagwan's estate at FJ$1,034,620.96 and the net value at FJ$1,031,000.00, which under the then prevailing FJ$/A$ exchange rate of 0.55 was a net value of approximately A$567,050.00. How these values were reached is not clear.

1. In correspondence after Vidya moved to Sydney, Nitin provided her with a spreadsheet titled "Hiralal's assets", which lists what appears to be the assets of the estate on which the estimate in the grant of probate was based (together with their value in FJ$). The list, totalling FJ$1,034,620.91, that he gave her is as follows:

Savings Account WBC [account number]	$8,018.92
Term Deposit HFC Finance [account number]	$220,000.00
Loan Merchant Club	$250.00
Insurance Policy	$96,000.00
Capital Hira Solanki due	$86.138.04
Capital B.H. Solanki bldg	$144,714.00
Estimate BH market correction	$255,000.00
Advance Hiralal Inv Ltd	$116,600.00
Estimate Hiralal in bldg market correction [sic]	$35,000.00
Shares FMF (market)	$27,000.00
Shares CBA (market)	$20,000.00
Loan Hiralal Investments	$25,000.00
Total Estate Valuation with market correction	$1,034,620.96

1. Vidya says that she was not shown this document in November 2010 when she signed the probate documentation, and that in any event the list is incomplete. She says it should also include two substantial assets: bank funds of approximately A$700,000, and what she calls "gold coins, sovereigns and other gold and silver collectables". The whereabouts of these additional assets is disputed.

1. Fund in an Australian bank account. Vidya and Hari both say that at the time of his death, Bhagwan's estate included a substantial sum of money not included in Nitin's above list of estate assets. Vidya says that this sum is, or should be, currently held in Vibha's bank account in Australia. And she submits that at any trial of this matter she would argue that Vibha held this fund on express trust for Bhagwan during his lifetime, and that it now belongs to the estate/trust. The defendants disagree.

1. And so begins a mysterious and fragmented story about protecting Bhagwan's funds from military strife. In 2006 Fiji suffered a military coup led by Commodore Voreqe Bainimarama. Vidya's evidence is that in 2007 Bhagwan told her that because of Fiji's political instability he had transferred for safekeeping a large sum of money denominated in US dollars to Vibha's bank account in Australia. She says that he later told her:

I've asked Nitin to give it [the money] back to me but he said he need's Vibha's signature.

1. No direct evidence of the transfer of the money from Bhagwan to Vibha was tendered on the motion. But Vidya's evidence includes a 16 September 2008 ANZ Bank term deposit confirmation in Vibha's name. The term deposit was made for 30 days. It was denominated in US dollars, its total balance at maturity, including the deposit amount and interest, was US$502,223.34.

1. Hari also gave evidence in relation to a substantial sum of money not included in Nitin's list of assets in Bhagwan's estate. He says to the best of his knowledge that Bhagwan's estate at the time of his death included an amount "upwards of $550,000 in funds deposited in US dollars with the ANZ Bank office in Martin Place Sydney". Moreover, he says that Vinod confirmed to him in a conversation in 2011 that:

The $700,000 was parked in Vibha's account to avoid being frozen by the authorities.

And that:

Nitin said the $700,000 would be put into the joint names of all the siblings.

1. The defendants did not read any affidavit evidence about the ANZ Bank Account on this application. So, the Court does not have the benefit of their account concerning the disputed ANZ Bank fund. But the correspondence between Nitin's and Vidya's solicitors attached to Vidya's affidavit throws some light on the defendants' position on this issue. In correspondence Vinod denies making any comments to Hari in relation to the fund. But otherwise the solicitors for Nitin have ignored all Vidya's queries concerning the money.

1. The defendants deny in submissions that there were substantial moneys in the ANZ Bank account. And I was told from the Bar table that any such money had been transferred to Fiji, and only approximately A$16,000 is still in Australia.

1. But all this material and the admissions by counsel would certainly support inferences that Bhagwan's money was deposited with the ANZ Bank in Sydney and that the money has since been moved.

1. At the hearing the Court enquired about the whereabouts of the disputed fund and invited the defendants to provide further evidence about it. Counsel for the defendants responded by providing the Court with: (1) some evidence suggesting that a bank account with the ANZ Bank in Vibha's name currently holds approximately A$16,000; and (2) two certificates of title for properties in Fiji, allegedly bought with the funds from Vibha's bank account. This material provides no direct evidence that a large sum which was once in Vibha's Australian bank account was later transferred to Fiji, as the defendants submit. But with other evidence it may be possible to infer that such a transfer has occurred.

1. After the hearing, with the Court's leave, the defendants provided the Court with a further tender bundle of documents relating to the ANZ Bank money. They made no detailed submissions in relation to the effect of these documents except, for stating in correspondence to the Court:

The evidence put on by the First Defendant clearly shows that the funds were transferred from Australia to Fiji and that there are no trust assets [in Australia].

1. The tender of the additional documents is opposed by the plaintiff. She argues that she did not have a fair opportunity to contradict this material. And that the material: is formless and impossible to understand, has not been made relevant, and although it might show money is presently overseas it does not establish that the substantial fund, which was once in the ANZ bank account, has been transferred overseas.

1. What does the additional material in the tender bundle show? And should it be admitted into evidence? The material may be divided into four categories. First, it includes sale of land contracts and executed land transfers in relation to two properties in Fiji, purchased by Nitin. I assume that through this documentation the defendants seek to support their argument, that the fund was, at least in part, used to purchase property in Fiji. But Vidya points out in her submissions that one of these transfers relates to a different property than the certificates of title handed up at the hearing (they bear different lot numbers, and one was transferred to Nitin in January 2012, whereas the other was bought by Hiralal Investments in August 2009). Thus the fresh material really only deepens the mystery of where any of Bhagwan's funds in an ANZ Bank account in Sydney actually went.

1. Secondly, the additional material includes a single loose, unsigned page which seems to summarise expenses Nitin incurred on behalf of the estate, and some of its assets (including a substantial loan made from the estate to a third party, details of which are not provided). The assets and expenses listed add up to A$687,846. But the defendants have not explained how this summary was created, and why is it relevant to the whereabouts of the major fund, or to any other issues in the proceedings.

1. Thirdly, the additional material includes various records, including correspondence and bank receipts, which appear to be tendered in support of the entries in the one page expenses summary.

1. Fourthly, the additional material contains documents relating to Bhagwan's shares in the Commonwealth Bank of Australia (CBA): (1) Nitin's correspondence with a stockbroker in May 2010; (2) a copy of a transfer form dated 18 May 2010 authorising a sale of 215 CBA shares at A$50.00 per share signed by Nitin as Bhagwan's attorney; (3) a power of attorney dated 31 July 2007 granted to Nitin by Bhagwan; (4) and, a February 2010 CBA dividend statement in relation to 215 CBA shares. Again the relevance of these documents is unclear. The defendants made no specific submissions in relation to them.

1. The CBA share documents are confusing: all of them predate Bhagwan's death in June 2010; the tendered power of attorney in fact relates only to land transactions and does not authorise Nitin to execute to execute share transfers on Bhagwan's behalf; and the August 2010 dividend statement which is in evidence records Bhagwan's shareholding as 215, which suggest that the sale in May 2010 did not proceed.

1. This additional (tender bundle) material will be admitted into evidence. This is not a final hearing. The plaintiff has had a full opportunity to respond to the material, the imperfections of which are manifest from this discussion.

1. Gold coins and other collectables. Vidya's evidence is that shortly after Bhagwan's death Hari found a box of "gold coins, sovereigns and other gold and silver collectables" in the apartment where she lived with Bhagwan before his death. She says that she wanted to divide these items between her six children. But she says that Nitin took the valuables and told her that he would divide them between his siblings when he was ready to do so.

1. Hari confirms Vidya's recollections in relation to the coins. And he says that he has not seen any of these items since giving them to Nitin in June 2010 in Fiji. I was told on behalf of the defendants from the Bar table that they are now held in a bank deposit box in Fiji. Through correspondence with the bank Nitin has given instructions that they may be accessed in his and Vidya's joint presence.

1. I infer from this admission by counsel and this correspondence that these coins and collectables exist. The evidence is consistent with them now being in Fiji.

Administration of Bhagwan's assets after his death

1. Vidya's untested evidence supports inferences: that since the grant of probate Nitin has exercised effective personal control over Bhagwan's estate; and that Vidya has been excluded from estate administration decisions. And there is no evidence from any party as to the extent, if any, of Vinod's involvement in estate administration.

1. Vidya has several complaints about the way Nitin is administering estate assets. She first says that she was excluded from the administration of the estate and does not have a good understanding of the administration or extent of the estate assets. She also says that Nitin interfered with a bank account that she held jointly with Bhagwan in Australia. Lastly, she says that she did and does not receive adequate financial provision from the estate. Each of these issues is addressed in more detail below.

1. Accounts of the estate/trust. Some estate accounts were in evidence but were incomplete or were not fully authenticated. The estate accounts tendered include: (1) letters to the Commissioner of Inland Revenue Service in Suva dated 1 May 2011 and 12 April 2012 referring to "Estate of Hiralal Bhagwandas Solanki"; (2) a return of income form for the "Estate of Hiralal B. Solanki" dated 1 May 2011; (3) and balance sheets of the "Estate of Hiralal Bhagwandas Solanki" as at 31 December 2010 and 31 December 2011. The documents for 2010 have been signed by one person, who in the letter and the balance sheet is described as "Trustee". The accounts for 2011 are unsigned.

1. The December 2010 balance sheet show estate assets at FJ$735,195.00 and that its net income for the year was FJ$38,651.18, which under the then FJ$/A$ exchange rate of 0.53 is, respectively, approximately A$389,653.00 and A$20,485.13. In the December 2011 balance sheet estate assets had increased to FJ$788,643.00 and its net income to FJ$61,792.02, which under the then FJ$/A$ exchange rate of 0.54 is, respectively, approximately A$425,867.22 and A$33,367.69.

1. The December 2011 balance sheet lists the following assets together with their value in FJ$:

Savings Account - Westpac Bank	8,775
Term Deposits - HFC Finance	230,626
Loan - Merchant Club	250
Capital - Hira Solanki & Company	47,341
Capital - Hira & Ramesh Solanki Bldg Partnership	2,408
Capital - B.H. Solanki &Company Bldg Partnership	140,382
Advancement to Hiralal Investments Limited	348,089
FIXED ASSETS	6,972
INVESTMENT - Shares in Flour Mills of Fiji	400
INVESTMENT - Shares in Private Company	3,400

1. Bhagwan and Vidya's joint bank account. Vidya says that in late March 2011 she discovered that a term deposit in the ANZ Bank, which she held jointly with her late husband, had been closed without her authority. Her evidence is that A$19,617 was deposited to the credit of this account (being a deposit of A$18,767, plus accrued interest). Vidya's solicitors wrote to the ANZ Bank about this deposit. The Bank refunded to Vidya the sum of A$18,767 but not the interest. No reasons for the refund were provided in this correspondence.

1. But that was not the only correspondence in relation to the refund. Vidya also attached to her affidavit correspondence between Vibha, Nitin and the ANZ Bank in June-August 2011 which the defendants disclosed to her as part of their voluntary discovery in these proceedings. This correspondence is quite aggressive on Nitin's side. In reply to Vibha's queries in relation to the refund, an ANZ representative informed her:

As per my previous email, I am writing to inform you that the amount of $18,676.66 was incorrectly deposited into your E*TRADE Cash Investment Account on 27/10/2010. The funds belong to another person with the same last name and first initial V as yourself due to which there was an error in deposit into your account as advices by ANZ Resolution Centre,

To this Nitin responded (and using the exact form of his response):

Lady I suggest you chk your records.if the money is not located and put back within 48 hours. I will close all ANZ accounts and Etrade accounts [sic]

Nitin HIRALAL

For Vibha Nitin HIRALAL

1. This correspondence continued in a similar vein. Nitin referred to the documentation confirming the grant of probate of Bhagwan's estate and threatened the Bank with legal action. But ultimately he was advised by the ANZ Bank that, as the relevant account belonged jointly to Bhagwan and Vidya, "this matter remains between [him] and [his mother]".

1. Payments to Vidya from the estate. Vidya confirms she has received the following payments from the estate:

(a)   A$6,000 in March 2011 (together with A$16,500 from her closed bank accounts);

(b)   A$22,000 for rental and utilities allowance in December 2011 and early 2012;

(c)   A$1,000 in June 2012; and

(d)   A$4,000 in July 2012.

1. The last two payment were made after Ward J sitting in this Court's Duty List made consent the orders which relevantly provided:

By consent and without admission, and without any defendant waiving their right to contest the jurisdiction of this Court in the manner referred to in their notice of motion signed 10 May 2012, it is ordered:

1. The trust known as the testamentary trust of the late Hiralal Bhagwandas, of which the plaintiff, first and second defendants are trustees (the 'Trustees'), is to be administered under the control of this Court.

2. The Trustees are to direct payment of A$4,000 monthly to the plaintiff beginning 7 June 2012, and then the first business day of each month thereafter, such payment to be by direct deposit into the following account:

a. [account details]

...

5. Until further order all decisions hereafter by the Trustees are to be jointly made and any disagreement between them is to be resolved by approval of this Court.

6. The Court notes the undertaking by the third defendant through her counsel not to deal with any assets referred to in the plaintiff's affidavits served to date.

7. The plaintiff is to serve a copy of these orders upon the ANZ Bank by close of business 5 June 2012.

1. Vidya alleges that, at least before the hearing of this motion last August, these orders had not been fully complied with.

Jurisdiction of the Court

1. The defendants first contend on their motion that this Court does not have jurisdiction to hear the proceedings the plaintiff has brought. Two questions have to be determined: (1) whether this Court has jurisdiction over the defendants, established by personal service of the Summons inside or outside the jurisdiction or alternatively established by the defendants' submission to the Court's jurisdiction; and (2) whether this Court has jurisdiction over the subject matter of the substantive dispute.

In personam jurisdiction over the defendants

1. An Australian Court can exercise in personam jurisdiction over a person only if either, (1) that person was validly served with the originating process, or (2) the person submitted to the jurisdiction of the Court: Laurie v Carroll (1958) 98 CLR 310. The defendants contest the plaintiff's argument that she has passed these gateways to jurisdiction.

Service of the Summons

1. Personal service has been successfully attempted on several of the defendants. The parties agree that Vinod was personally served with the Summons in Hurstville, New South Wales, and that Vibha and Nitin were served in Fiji. In addition, at approximately 4.20pm on 23 August 2012 an employee of the plaintiff's solicitors handed a copy of the Summons to Nitin in the Legal Grounds Café on Macquarie St Sydney and located approximately 200 metres from the Court building.

1. The plaintiff has also served Nitin and Vibha in Fiji. The defendants dispute the validity of this service. They submit that: (1) the authority for service outside the jurisdiction granted by UCPR Pt 11 did not allow the defendants in this case to serve the Summons outside the jurisdiction; (2) in any event, service on Nitin and Vibha in Fiji was invalid because the served Summons did not include the required UCPR r 11.3 notice; (3) the fact that the Summons was served again on Nitin in Sydney on the afternoon of the second day of the hearing, suggests that the plaintiff was not confident that it was served properly in the first place. The plaintiff contends service on Vibha and Nitin was valid.

1. The defendants also dispute the validity of service on Vinod within the jurisdiction. They submit that: (1) he was not a resident in NSW at the time of the service; (2) the Summons served on him did not include the required UCPR r 11.3 notice, even though Vinod was served in the jurisdiction. It is said that because all the defendants were sued in what is described as a "collegiate capacity", a UCPR 11.3 notice is required for service within the jurisdiction on Vinod.

1. Service within the jurisdiction - Vinod and Nitin. It is well established that personal service within the jurisdiction may be validly effected on a person who is merely temporarily present in Australia: Baldry v Jackson [1976] 1 NSWLR 19 at 22 ("Baldry"). Such service will not be valid if that person was forced or tricked into coming to the jurisdiction for the sole purpose of the service: Baldry at [22]-[23]. It is implicit in the reasoning of Baldry that there is no requirement for valid personal service in Australia that the person served be a resident. And the cases have long supported the validity of such service for temporary visitors: Carrick v Hancock (1895) 12 TLR 59.

1. A person may be validly served close in the vicinity of the Court, or within its precincts. But in some circumstances such service, while effective, may constitute a contempt of Court: Baldry at 25, Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145; (1995) 129 ALR 295 at 303-306, Brookfield v Davey Products Pty Ltd 25 September 1998, Mansfield J, Federal Court of Australia, unreported.

1. The plaintiff has validly served Vinod and Nitin within the jurisdiction. The objections raised to the validity of service upon them within the jurisdiction are not persuasive. First as to Vinod, he was served in Hurstville in accordance with UCPR Pt 10 - Service of Documents Generally. The fact that the Summons served upon him did not include a notice under UCPR r 11.3 is no objection to service upon him in New South Wales. Neither the proper construction nor the policy behind UCPR r 11.3 supports a conclusion that service on Vinod is invalid.

1. Vinod is resident in Australia. There is no evidence the plaintiff intended to serve him outside Australia. The only defendants that the plaintiff ever intended to serve outside Australia were Nitin and Vibha. The notice UCPR r 11.3 requires is one "to that effect" namely, to the effect that the originating process "is intended to be served on a defendant outside Australia". The notice need only specify the defendant in respect of whom the intention exists to effect service outside Australia; here the defendants Nitin and Vibha.

1. The lack of a UCPR r 11.3 notice in respect of Nitin and Vibha does not invalidate service which is otherwise valid within Part 10 in respect of a Defendant who was never intended to be served outside Australia. Service on the defendant outside Australia may or may not be able to be effected. Why should that invalidate otherwise proper service within Australia? No good reason is given. Moreover, at least one of the purposes of the UCPR r 11.3 notice is to convey to the defendant served outside Australia the procedural basis which is claimed to ground service of the originating process upon that person outside the jurisdiction. That policy does not imply that the defendant within the jurisdiction needs to know whether there is an intention to serve other defendants outside the jurisdiction. Nor does the defendants' argument that "collegiality" of the defendants require this result. The argument is not grounded in the words of UCPR Pt 11 and it not persuasive.

1. Furthermore, Vinod did not suffer any identifiable prejudice from the absence of a UCPR r 11.3 notice. So the Court would probably exercise its power under Civil Procedure Act, s 63(2)(b) to relieve the plaintiff from any invalidity arising from the taking of this step in the proceedings were it required.

1. Service of Nitin within the jurisdiction is also valid. There is no suggestion he was tricked into coming within the jurisdiction. His position as a temporary visitor is not an objection to service. And service in Macquarie Street some 200 metres from the Court, outside the Court building, is not obviously a contempt of Court in this case. That is not a basis for setting aside service against him.

1. Service outside the jurisdiction - Nitin and Vibha. Service outside Australia is regulated by UCPR Pt 11. The plaintiff says that pursuant to the provisions of that Part, the Summons was validly served in Fiji, on both Nitin and Vibha.

1. The Court has found that Nitin was validly served within the jurisdiction. It is therefore not strictly necessary also to find whether he was validly served outside the jurisdiction. But there is nothing to distinguish the circumstances in which Nitin and Vibha were served outside the jurisdiction, so the Court will deal with the validity of service on both of them together.

1. Relevantly UCPR 11.2 provides:

11.2 Cases for service of originating process

(1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6.

(2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention.

1. UCPR Schedule 6 lists twenty three categories of circumstances in which originating process may be validly served outside Australia. The plaintiff relies on six of these categories.

1. An originating process served abroad must comply with the usual formal requirements under UCPR. Additional requirements for service outside Australia are limited. The originating process needs to be served either personally, or at least in accordance with the law of the country in which service is effected: UCPR 11.6. And UCPR 11.3 requires the served process to include a notice, as follows:

11.3 Notice to the defendant served outside Australia

(1) If originating process is intended to be served on a defendant outside Australia, a notice to that effect must be included in the originating process.

1. A party may apply to set aside an originating process without submitting to the jurisdiction of this Court: UCPR 12.11. The Court's power to set aside originating process is broad, but UCPR 11.7 itself includes two examples in which its exercise may be appropriate:

11.7 Setting aside originating process served outside Australia

(1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia.

(2) Without limiting subrule (1), the Supreme Court may make an order under this rule:

(a) on the ground that the service of the originating process is not authorised by these rules, or

(b) on the ground that the court is an inappropriate forum for the trial of the proceedings.

1. The defendants contend that service of the originating process in Fiji on Nitin and Vibha should be set aside, because: (1) it is not authorised under any of the categories in UCPR Schedule 6; (2) it did not include a UCPR 11.3 notice; and (3) the Court is an inappropriate forum (forum non conveniens) for the trial of the proceedings. The plaintiff disputes each of these contentions.

1. The defendants' forum non conveniens argument will be dealt with after resolution of the jurisdictional issues. But the defendants' other two submissions are analysed below.

1. UCPR r 11.3 notice. The UCPR does not prescribe the form of the UCPR r 11.3 notice. The form of such a notice was prescribed in the predecessor Supreme Court Rules 1970 Pt 10 r 2A - Form 13A - before the introduction of the UCPR: Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743; [2001] NSWSC 477 at [57]. But the parties are no longer required to use Form 13A: Re Mustang Marine Australia Services Pty Ltd (in liq) [2013] NSWSC 360 at [3]. The required notice must now only be "to the effect that" originating process is intended to be served on a defendant outside Australia: UCPR 11.3.

1. Even if the UCPR 11.3 notice requirement was not complied with, the Court may treat non compliance as an irregularity not invalidating service of the Summons under Civil Procedure Act s 63:

63 Directions with respect to procedural irregularities

(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

(2) Such a failure:

(a) is to be treated as an irregularity, and

(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.

(3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):

(a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,

(b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.

(4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.

1. Civil Procedure Act s 63 has been applied to failures to comply with the requirements of service outside the jurisdiction: Studorp Ltd v Robinson [2012] NSWSC 148 at [53] (this aspect was not discussed on appeal: Studorp Ltd v Robinson Robinson v Studorp Ltd [2012] NSWCA 382). And the predecessor provision to s 63 - Supreme Court Act 1970 s 81 - has been applied to excuse a failure to give a notice in the form of Form 13A: Australian Securities and Investments Commission (ASIC) v Sweeney (No 2) [2000] NSWSC 1211 at [61].

1. The Summons served on Nitin and Vibha did not include an expressly worded notice that it was intended to be served in Fiji. But Nitin's and Vibha's address on the Summons in the "Details about the defendants'" section was their address in Fiji. In contrast, Vinod's address was listed as Hurstville, Australia.

1. The plaintiff has complied with UCPR r 11.3. In my view the inclusion of Nitin's and Vibha's addresses in Fiji is sufficient "notice" within UCPR r 11.3 that the originating process is intended to be served on them outside Australia so as to satisfy UCPR r 11.3. Because the UCPR does not prescribe the form of the r 11.3 notice, no particular form of words is mandated. It is difficult to see why the specification of a complete and apparently accurate foreign address for the defendants concerned is not a sufficient indication of the required intention for the purposes of UCPR r 11.3 itself.

1. But even if it were not, the departure from UCPR r 11.3 here is so minor that it should be excused under Civil Procedure Act s 63(2). Counsel for Nitin and Vibha could not identify any prejudice to them from the absence of the words "this originating process is intended to be served upon the defendants outside Australia", in addition to their Fijian addresses.

1. The Schedule 6 Categories. The plaintiff submits that service on Vibha and Nitin outside Australia was valid because these proceedings fall within each of UCPR Schedule 6 (a), (i), (j), (m), (n), (o), (p) and (u), which provide:

Originating process may be served outside Australia in relation to the following circumstances:

(a) if the proceedings are founded on a cause of action arising in New South Wales,

...

(i) if the proceedings are properly commenced against a person served or to be served in New South Wales and the person to be served outside New South Wales is properly joined as a party to the proceedings,

(j) if the subject-matter of the proceedings, so far as concerns the person to be served, is property in New South Wales,

...

(m) if the proceedings are for the construction, rectification, setting aside or enforcement of a deed, will or other instrument or of a contract, obligation or liability, affecting property in New South Wales,

(n) if the proceedings are for an injunction as to anything to be done in New South Wales or against the doing of any act in New South Wales, whether damages are also sought or not,

(o) if the proceedings are for the administration of the estate of a person who dies domiciled in New South Wales, or are for relief which might be granted in proceedings for administration of such an estate,

(p) if the proceedings are for the execution of trusts which are governed by the law of New South Wales, or are for relief which might be granted in proceedings for the execution of such trusts,

...

(u) if the proceedings are commenced to enforce in New South Wales a judgment wherever given,

1. I am satisfied that the requirements of UCPR Sch 6(i) have been satisfied. These reasons do not explore in detail the parties' arguments in relation to the other subsections.

1. The principles governing the application of UCPR Sch 6(i) are well established. It applies if a served foreign party had been resident within New South Wales, could properly have been sued as a defendant in the proceedings together with another defendant, who in fact resides in New South Wales: Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684 at [136] ("Sigma"). There is no requirement for the foreign party and the defendant to be jointly liable, or even sued in the alternative provided they could properly have been joined as a defendant: Sigma at [137].

1. UCPR r 6.19 prescribes when two persons may be sued together as defendants in any originating process. They may be sued together if separate proceedings against each of them would give rise to common questions of law and fact and all the rights to relief claimed arise out of the same transaction or series of transactions. But the defendants accept that Vibha and Nitin could properly be joined as parties to these proceedings. The defendants' concession is rightly made. As the co-executor and trustee with Vinod, Nitin is properly joined to the proceedings under UCPR r 6.19. As the whereabouts of alleged estate assets such as the money in the ANZ Bank account and the administration of those assets are common questions of fact, Vibha is also properly joined as a defendant.

1. Therefore the requirements of UCPR Sch 6(i) are satisfied. Moreover, the evidence clearly supports service outside Australia under UCPR Sch 6(j) against Vibha because the account with the ANZ Bank is property in NSW; and against both Nitin and Vibha in respect of the same property under Sch 6(m), because of the need to enforce the trusts created by the will in relation to that property.

Have the Defendants submitted to the jurisdiction

1. The Court has now found that each of the defendants, Nitin, Vinod and Vibha has been validly served within the originating legal process and that they are all amenable to the jurisdiction of this Court. It is therefore not strictly necessary to decide whether or not the defendants have also submitted to the jurisdiction.

1. But this is a wholly alternative basis for finding jurisdiction and depends in part upon findings of fact based on oral evidence. As these proceedings may yet take many courses, it is desirable that I decide the plaintiff's alternative case for this Court's jurisdiction.

1. The plaintiff alleges that the defendants submitted to the jurisdiction of this Court in two ways: by filing an appearance, and by issuing subpoenas. The defendants seek leave to withdraw the appearance. They say, it was filed as a result of a mistake and as a result of compulsion. And they deny that issuing the subpoenas amounted to a submission to the Court's jurisdiction, because the subpoenas were only issued for the purposes of the forum non conveniens application, and not in relation to the substantive proceedings.

1. The appearances and subpoenas were filed in July-August 2012. The defendants sought the issue of the two subpoenas in July 2012. One was to a real estate agent in Strathfield for production of a copy of a residential tenancy agreement and documents in relation to the current lease of Vidya's house in Strathfield. The other was a subpoena to Mr Kiran Singh, branch manager of an ANZ Bank branch in Wentworthville to attend to give evidence on 23 and 24 August 2012.

1. The subpoena for production was returnable on 7 August 2012. On 10 August 2012 (Friday) Ms Catherine Vincent, a Sydney agent for the defendants' solicitor, attended the Court's registry to inspect the produced documents. She says the Court's Registry staff told her that she would not be able to inspect the documents unless her clients had filed an appearance.

1. Ms Vincent returned to her office and emailed Mr Naidu, the defendants' solicitor to inform him about this development. She said that she intended to file an appearance. She received no reply. And on 14 August 2012 (Tuesday) she filed an appearance. On the same day, she forwarded a copy of the appearance to the plaintiff's solicitors and to Mr Stanton of counsel, who appears for the defendants. Ms Vincent says, and I accept that at the time she was unaware of the legal implications of filing of an appearance.

1. Mr Naidu says that from Friday 10 August 2012 when Ms Vincent sent her email in relation to the filing of the appearance through to Tuesday 14 August 2012 when she completed the filing, he was on holidays on Plantation Island, an island close to the main island of Fiji. And although he had his iPhone with him, he did not check his email until he got back into the office on Tuesday 14 August 2012.

1. On 15 August Mr Stanton emailed Ms Vincent querying:

Catherine

Why? We have objected to jurisdiction and have disputed service.

1. The defendants now wish to withdraw the filed appearance, which, they say was filed by mistake and under compulsion. The plaintiff says that the defendants submitted to jurisdiction of this Court by: (1) filling the appearance; (2) issuing the subpoenas.

1. Leave to withdraw an appearance. It is accepted that a party who filed an unconditional appearance, as the defendants did, submits to the jurisdiction of the Court: Howard v National Bank of New Zealand Ltd (2002) 121 FCR 366, [2002] FCA 1257 at [19]. The defendants did not contend otherwise. But the Court has power to grant leave to withdraw an appearance under UCPR r 12.5, which provides:

12.5 Withdrawal of appearance

An active party may withdraw an appearance by leave of the court.

1. The law in relation to leave to withdraw a filed appearance was usefully summarised by Young JA, in Tory v Megna [2012] NSWCA 41 at [10] ("Tory"). Tory involved a submitting appearance but his Honour's comments are equally applicable to other forms of appearance.

1. The Court has a broad discretion to allow withdrawal of an appearance. But previous cases provide guidance on the exercise of this discretion. Leave should ordinarily be granted when "an appearance was entered by mistake or accident but not when a deliberate choice was made, particularly one taking into account the risks involved after receiving competent legal advice": Tory at [11].

1. In making its decision the Court may take into account the fact that other parties to the proceedings altered their position on the faith of the entry of the appearance: Somportex Ltd v Philadelphia Chewing Gum Corp [1968] 3 All ER 26 at 29 ("Somportex"). Leave to withdraw may be appropriate when an appearance was filed "without instructions by mistake, without proper consideration or without advice": Garsec v His Majesty Sultan of Brunei (2007) 213 FLR 331; [2007] NSWSC 882 at [48] ("Garsec").

1. Leave to withdraw has previously been refused when an appearance was filed upon legal advice and with appreciation of the risks and advantages: Garsec at [33]. Withdrawal was also not allowed when filing was a deliberate decision arrived at after consultation of eminent lawyers, even though there was some doubt whether at least some of them in fact fully appreciated the consequences: Somportex at 29.

1. Waiver of the right to object to jurisdiction. The plaintiff says that the defendants submitted to the jurisdiction by issuing subpoenas returnable before this Court. She says that those subpoenas related to the merits of the dispute between the parties. The defendants deny that issuing the subpoenas was a submission to the jurisdiction. And they say that those subpoenas related to their forum non conveniens argument, not to the substantive proceedings.

1. The law in relation to waiver of the right to object to jurisdiction may be shortly stated. A waiver may be established if a party took some steps which are "only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all": Rein v Stein (1892) 66 LT 469 at 471, applied in National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176-177 ("Wimborne")and Walker v Newmont Australia Ltd [2010] FCA 298 at [29] ("Walker").) An action that is "not consistent with or relevant to the challenge to the jurisdiction" will usually be a submission to the jurisdiction: Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 at [38] ("Brealey").

1. A submission to jurisdiction may also occur when a party brings an action in the jurisdiction, but such submission is limited to the subject matter of the action placed before the Court: Wimborne at 169 and 174.

1. A party has been held to have submitted to a Court's jurisdiction to enforce a subpoena issued by that Court when the party appeared in Court in answer to that subpoena and partially produced the required documents: Walker at [28]-[31]. But failure by counsel to formally announce protest to the jurisdiction when appearing in Court was not enough to infer a submission: Wimborne at 181. Neither was the presence of a solicitor at a hearing a submission to jurisdiction, when the solicitor limited herself to observing the proceedings and did not seek any relief for her client: Brealey at [39]-[40].

1. Conclusion on the Appearance and Waiver. I accept that the filing of the appearance in these proceedings was a mistake. And I accept that the two subpoenas were issued only in relation to the argument on the defendants' motion. Thus, on these grounds alone it could not be said that the defendant have either submitted to jurisdiction or waived their right to object to jurisdiction, if this was the sole basis on which the Court's jurisdiction were founded. I will shortly explain the reasons for this conclusion. However, were it ever to become an issue, there is, in my view, a substantial basis for inferring that the defendants have submitted to jurisdiction, because of the events that occurred before Ward J in the Equity Duty List on 4 June 2012.

1. The subpoena to the real estate agent in Strathfield and to the branch manager of the ANZ Branch in Wentworthville were both related to exploring the connection between the plaintiff's case and this jurisdiction. They were a legitimate forensic endeavour in connection with the objection to jurisdiction. They are not steps which were "only necessary or useful if the objection to jurisdiction has been waived or if objection to jurisdiction were never entertained at all": Walker [at 29] per Gordon J.

1. The appearance was clearly filed by mistake. Were there no other basis for this Court's jurisdiction I would ordinarily therefore grant leave for the defendants to withdraw the appearance. But there is no need to give that leave because of the Court's earlier findings as to service and jurisdiction. But something should be said about the contest on this issue.

1. Though the filing of the appearance was a mistake, it was an understandable one. Ms Vincent, the solicitor with the carriage of the matter was only about two weeks away from a hearing before the Court when she sought to inspect the documents produced on the subpoenas. She was acting as a diligent solicitor should in the circumstances in preparing in advance for the hearing. She was told by the Court's Registry that an appearance had to be filed so that she could inspect the documents. This was a not unusual procedure. The Registry was seeking to ensure that her clients had a proper claim to inspect the documents as a party, rather than as a member of the public to whom different rules apply. Her only error at that time was not to make an application to the duty Registrar to ensure that only a conditional appearance was filed before she inspected documents. As the subpoenas were only issued for the purposes of the motion, that should have readily allowed her access to the documents.

1. She tried to get instructions as to what to do next. She failed to get those instructions over the weekend and acted on her own initiative as time was running out. Because of her relative inexperience her initiative turned out to be wrong. She was quite visibly upset about what had happened in this case when she gave evidence. But in my view the responsibility for the mistake really lies very substantially with Mr Naidu rather than Ms Vincent. Close supervision and attention to detail by experienced practitioners is required in the management of defendants' cases, where the Court's jurisdiction is contested. Unfortunately Ms Vincent's calls for that supervision in this case went unanswered, and this error was made. But fortunately, for the reasons given the error is of no consequence.

1. Nor is the defendants' argument that they have been compelled to submit to the Court's jurisdiction a persuasive one. The only "compulsion" relied upon is the requirement to file an appearance. But by a proper application to the Court that so-called "compulsion" could have been avoided.

1. But there is another basis upon which it may be well be said that the defendants submitted to this Court's jurisdiction. This basis was not fully argued before me, and I therefore will not decide it. But the inference that the defendants have submitted to this Court's jurisdiction from the events that occurred before Ward J. in the Equity Duty List on 4 June 2012 are compelling.

1. It is difficult to construe order 1 made by consent before Ward J as anything other than a submission to the Court's jurisdiction in respect of the subject matter of the Summons. Order 1 orders that the trust "is to be administered under the control of this Court", despite the preamble that that does not waive the defendants' right to contest the jurisdiction of the Court.

1. The consent to the administration of the trust by the Court goes well beyond the requirements of interim relief pending determination of the issue of jurisdiction. No doubt interim distributions could have been made form the trust, without more, on a without prejudice basis.

1. The terms of order 1 are inconsistent with the attempt not to waive the right to contest the Court's jurisdiction. Order 1 is "only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all": cf. Wimborne at pp 176-177 and Walker at [29]. The problem can be simply illustrated. If the defendants are alleged to have breached the trust between the time Ward J made her Honour's orders and the present time, then it would now be very difficult for the defendants to argue this Court did not have jurisdiction to entertain the breach of trust, in light of Ward J's orders. Although the contentions are not very clear from the materials now before the Court it is apparently said that some of Ward J's orders have been breached. So this may yet become a live issue in the proceedings.

1. Under UCPR r 11.4 leave of the Court is necessary for the plaintiff to proceed against a defendant who was served outside Australia and did not enter an appearance. But Nitin and Vibha were validly served in Fiji. So if I were to grant leave to the defendants to withdraw their appearance, I would grant leave to Vidya to proceed against them in this Court. Instead, I will leave the appearance in place.

Forum non conveniens

1. This Court has jurisdiction to deal with the matters raised in the plaintiff's Summons. But the defendants now argue that the proceedings should be stayed on forum non conveniens grounds. This last section of this judgment deals with the defendants' forum non conveniens argument.

1. The Court has not yet granted leave for the plaintiff to amend her Summons. The forum non conveniens argument was conducted on the basis that the Summons would probably be amended in accordance with the draft Amended Summons Mr Allen handed up to the Court. But those amendments have not yet been formally made. There is no reason why they should not be made now. Mr Stanton did not argue that he would be prejudiced by the amendments, so I propose to allow them. The course the Court will follow is to deal with the forum non conveniens argument based upon the Amended Summons. The first step though is to identify the applicable legal principles.

1. The applicable test for forum non conveniens was formulated by the High Court of Australia in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 ("Voth"), and was conveniently restated in Puttick v Tenon Ltd [2008] HCA 54 ("Puttick"); (2008) 238 CLR 265, as follows ([27]):

In Voth v Manildra Flour Mills Pty Ltd, the Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for determination of the dispute. The reasons of the plurality in Voth pointed out [at p 565] that the focus must be "upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum".

1. As the High Court further explained in Puttick (at [43]), the test stated in Voth turns on the following matters:

First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised 'with great care' or 'extreme caution'.

1. But a different test applies in cases where there are proceedings between the same parties in Australia and in another jurisdiction. This other test requires some consideration because there are probate proceedings on foot in the High Court of Fiji. It is regarded as prima facie vexatious and oppressive, in the Voth sense, to commence a second action in Australian Courts, if an action is already pending with respect to the matter in issue in the Courts of another country: Henry v Henry (1995) 185 CLR 571, at 591. Even if the issues in the foreign and local litigation are not exactly the same but the different proceedings arise out of the same sub-stratum of fact, the question is whether - the question for decision 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 is - 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": CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 400 ("CSR").

1. The test to be applied here is the Voth test, not the CSR test. Although there are probate proceedings in Fiji in respect of Bhagwan's will, those proceedings are not such as to engage the CSR test and displace the requirement to determine whether this is a seriously inappropriate forum. This follows from the nature of the proceedings in Fiji, which are an uncontentious exercise of the jurisdiction of the High Court of Fiji to prove Bhagwan's will and to regulate the work of his executors in the administration of his estate. I infer this to be the nature of those Fijian proceedings from the limited material that both parties have advanced about them on this motion. There are no competing, contentious proceedings in Fiji seeking the relief against the defendants in the administration of the trust.

1. But the existence of the Fijian probate proceedings is not irrelevant. Aspects of those proceedings must be taken into account, as these reasons explain when applying the Voth clearly inappropriate forum test.

1. The Voth test requires analysis of (1) the "connecting factors" between the litigation and the two forums, and (2) whether a decision to stay or not to stay will deprive a party of any "legitimate personal or juridical advantage". These principles applied in applications for a stay on inappropriate forum grounds are more fully stated by Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 247-248. And in the application of those principles the High Court explained in Voth (at 564 - 565) that Lord Goff's discussion in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 ("Spiliada") at 477-478, 482-484 of relevant "connecting factors" and any "legitimate personal or juridical advantage" provides valuable assistance.

1. The relevant "connecting factors" referred to in Spilada include: matters affecting convenience or expense (such as the availability of witnesses); the law governing the relevant transaction; and the places where the parties respectively reside, or carry on business. Examples given in Spiliada of legitimate personal or juridical advantages are matters such as the awarding of damages on a higher scale, a more complete discovery procedure, a power to award interest, or a more generous limitation period. The defendants advanced very little material on this motion about the parallel rights and remedies available to the plaintiff in Fijian Courts. So the question of "legitimate personal or juridical advantage" was not prominent in this motion.

1. The applicability of a foreign law is often considered to be a significant connecting factor in determining whether an Australian state is a clearly inappropriate forum; the difficulties and uncertainties involved in the proof of foreign law can be a source of prejudice: Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 ("Murakami") at [63] and [150]-[151]. But the significance of this as a connecting factor means that it is necessary to address the choice of law issues on a forum non conveniens stay application. But as Spigelman CJ explained in Murakami it is not necessary on such a stay application to finally resolve the choice of law issues. Nor is it wise to do so, when the full legal issues to be determined are not as yet defined by pleadings: Murakami at [65]. But the strength of the respective submissions is nevertheless relevant to the application of the Voth test: Murakami at [64].

1. It is now necessary to apply the Voth test to the plaintiff's claim. This will involve considering the relevant connecting factors and any personal or juridical advantages, a consideration, which will be based upon the Amended Summons. For the reasons which follow the Court concludes that the defendants' forum non conveniens arguments are unsuccessful.

1. The defendants advanced wide-ranging arguments to contend that these proceedings should be stayed on forum non conveniens grounds. The defendants argued that: there is no property associated with Bhagwan's testamentary trust situated in New South Wales at the present time, probate has been granted in the High Court of Fiji and there is no grant of probate in New South Wales; at the trial on the plaintiff's claim the Court will have to apply Fijian law in respect of the administration of the estate and the distribution of estate assets; there is no identified disadvantage in requiring the plaintiff to have recourse to the Fijian Courts compared with those of New South Wales; and as there are already probate proceedings in the High Court of Fiji, it would be vexatious for the plaintiff to bring her proceedings here in New South Wales. All these arguments are considered in more detail below.

1. The Court must look ahead to the issues as if these proceedings were to continue in New South Wales and were not stayed on forum non conveniens grounds. To analyse the defendants' arguments and the plaintiff's answers to them, the Court must to a degree look ahead at the likely course of a trial in New South Wales, were a stay not to be granted. Now that the issue of this Court's jurisdiction is resolved, this analysis proceeds in accordance with the accepted consecutive stages of an action involving a conflict of laws: (1) classification of the plaintiff's causes of action; (2) selection of the lex causae; and, (3) the application of the lex causae.

(1) Classification of the plaintiff's causes of action and forms of relief

1. The first task is to identify the plaintiff's causes of action or the forms of relief she claims. Despite the early stage of the pleadings this is possible. Those causes of action contain sub-issues. And each of these sub-issues has the potential to throw up a different choice of law issue. But the various sub-issues are considered together under each cause of action.

1. The plaintiff's Amended Summons seeks three main forms of relief: first, relief against her co-trustees, Nitin and Vinod, relating to the administration of the trust (prayers for relief 1, 2, 3, 7, 8, 9, 9G,10, 10A, 11, 12 and 13); secondly, relief in the nature of the grant of probate to the plaintiff for the limited purpose of protecting the funds in the ANZ bank (prayer for relief 9E); and thirdly, relief against the third defendant declaring her a trustee of the funds held in the ANZ bank and requiring the third defendant to account to the plaintiff for her dealings with those funds (prayers for relief 4, 6, 9A, 9B, 9C, and 9D). Each of these forms of relief raises its own questions of whether it is maintainable, and of what choice of law is appropriate for it at trial. Each form of relief must be considered separately, although this is only an interlocutory application, and the detail of that consideration will be accordingly confined. It is convenient first to deal with the plaintiff's application for probate because it drives the logic behind the Court's consideration of the other forms of relief.

1. The plaintiff claims probate of Bhagwan's estate in New South Wales. She seeks that she be appointed as the executor of his estate in New South Wales. She draws upon the general power conferred under Probate and Administration Act 1898 (NSW) ("Probate and Administration Act") s 40. She presently characterises this claim for relief as a claim for probate ad colligenda bona. But a claim made under Probate and Administration Act s 40 will allow the appointment of an executor within the jurisdiction, on any basis upon which such an appointment may legitimately be made within this Court's power under Probate and Administration Act.

1. The plaintiff has an arguable basis for the appointment of an executor of Bhagwan's estate within the jurisdiction, although the appointment made would ultimately not necessarily be the appointment of the plaintiff herself, and would not necessarily be just be an appointment ad colligenda bona.

1. The circumstances of this case raise the possibility of an appointment of an executor such as the plaintiff, as executor ad colligenda bona, or an appointment (or rather the bringing to account) of the defendants as executors de son tort. These forms of executorship are sufficiently raised by the relief claimed in the Amended Summons, and in the circumstances of this case would arguably arise in the following way.

1. Executor ad colligenda bona. The plaintiff seeks her appointment in New South Wales as executor ad colligenda bona, for the specific purpose of administering the part of the estate in New South Wales represented by the ANZ Bank Account. Probate and Administration Act s 40 broadly authorizes such a grant. According to Mason and Handler Succession Law and Practice NSW LexisNexis, (online at 17 July 2013) ("Mason and Handler") at [1181.4.8] such a grant is appropriate in the following circumstances:

For the protection of estate assets (ad colligenda bona)

Such a grant is made for the purpose of protecting the estate, or particular estate assets, where the delay in obtaining a normal grant will endanger them, and an immediate grant can protect them: see generally [5249]. In Re Cohen [1975] VR 187, a contract for sale of land required a grant to be obtained prior to 30 June 1974. An application for a grant ad colligenda bona made in October 1974 was refused upon the grounds that the practice of making such a grant was solely for the purpose of protecting any perishable or precarious assets of a deceased person where normal representation could not be promptly obtained and it could not be made in that case for the purpose of avoiding the consequences of the applicant's default under the contract.

On procedure see [5249]. See also McCorquodale v Guth [2008] NSWSC 1420; BC200812156 in which Young CJ in Eq granted special letters of administration to preserve the assets of the estate and, distinguishing Re Murphy [1959] VR 717 , dispensed with the administration bond.

1. All this will require pleading to make it clearer. The better course is to direct pleadings now. In the directions at the conclusion of these reasons the plaintiff will be required to plead her action against all the defendants.

(2) The Application of Foreign Law.

1. The defendants argue these proceedings should be stayed because they will involve the application of Fijian law. The applicability of foreign law is an important factor to be considered in determining a forum non conveniens stay application, as having to prove foreign law can be a source of prejudice itself. It would usually not be appropriate to finally resolve a choice of law question on such a stay application. It may not be appropriate, for example, if the position in Australian law is not entirely clear, or if the legal issues to be determined have not been sufficiently identified: Murakami per Spigelman J at [63]-[66] and [150].

1. The plaintiff's different claims for relief raise different choice of law issues. These reasons have already explained that local law will determine the plaintiff's first group of claims for the appointment of an administrator or under executor de son tort doctrines.

1. The second group of claims relates to the claims against Nitin and Vinod in relation to the administration of the trust under Bhagwan's will. In summary, for the reasons which follow, it is likely although not certain in my view, that the law of Fiji will govern the determination of issues relating to the claims for relief in relation to the trust. But the defendants have not sought to demonstrate on this motion that the law of Fiji is significantly different from the law of New South Wales in relation to such relief, so that little demonstrable prejudice would seem to follow from the application of Fijian law here. To the extent that there is any evidence of Fijian law before the Court - a copy of the Trustee Act of Fiji was provided to the Court - any differences from New South Wales law are not obvious.

1. The third group of claims against Vibha is presently so uncertain that the Court has directed it to be pleaded. But for reasons that are similar to the second group of claims, the fate of this stay application does not turn on the status of the cause of action against Vibha. Even if the law of Fiji applies to the claim against Vibha, there is little evidence that the application of Fijian law will involve special inconvenience to the parties.

1. It is necessary now to briefly analyse the choice of law issues on the plaintiff's trust claims against Nitin and Vinod.

1. In Australia, choice of law in relation to trusts and recognition of trusts involving a foreign element is governed by The Hague Convention on the Law Applicable to Trusts and on their Recognition 1984 (the "Hague Convention"): Constantinou at [19]. This convention was given force of law in Australia under the Trusts (Hague Convention) Act 1991 (Cth) s 6.

1. Fiji is not currently party to the Hague Convention. But the convention is a universal one, its provisions apply whether a trust in question is connected with one of the contracting parties or not: Nygh's Conflict of Laws at [34.1], J Harris, The Hague Convention, Hart Publishing 2002 at 404. This application may be restricted by each contracting state by a reservation made under Hague Convention Art. 21. But Australia so far has made no such reservation (see the Convention's status summary at Hague Conference's on Private International Law website: ("convention status").

1. Hague Convention Articles 6 and 7 provide rules for determining the governing law of a trust:

Article 6

A trust shall be governed by the law chosen by the settlor. The choice must be express or be implied in the terms of the instrument creating or the writing evidencing the trust, interpreted, if necessary, in the light of the circumstances of the case.

Where the law chosen under the previous paragraph does not provide for trusts or the category of trust involved, the choice shall not be effective and the law specified in Article 7 shall apply.

Article 7

Where no applicable law has been chosen, a trust shall be governed by the law with which it is most closely connected.

In ascertaining the law with which a trust is most closely connected reference shall be made in particular to -

a) the place of administration of the trust designated by the settlor;

b) the situs of the assets of the trust;

c) the place of residence or business of the trustee;

d) the objects of the trust and the places where they are to be fulfilled.

1. The Court is first required to look for settlor's express choice of governing law: Hague Convention Art. 6. If no such express choice is made, as is the case here, the Court would determine if an implied choice may be identified: Hague Convention Art. 6. Authority in Australia on the correct approach for a court deciding whether there is an implied choice of law governing a trust is scant but is slowly developing: Constantinou at [23]-[25]; Hutchinson and Anor v Bank of Scotland Plc [2012] QSC 28; Saliba v Falzon 1 July 1998, Supreme Court of NSW, Young J, unreported.

1. If the settlor made no express or implied choice, the trust will be governed by the law with which it is most closely connected: Hague Convention Art. 7. In establishing this connection the Court would have regard to the non-exclusive list of factors included Art. 7. The Convention does not specify the time at which the connection between the trust and a particular jurisdiction should be assessed. But in Constantinou Dalton J concluded (at [29], [40] and [44]) that the appropriate time for testamentary trusts is the time of the creation of the will (as opposed to the time of the death of the testator).

1. Here Bhagwan's will was made in 1993 more than a decade before he came to Australia to live. Although I do not have to decide the question, application of the Hague Convention points to a choice of Fijian law governing this trust.

1. Once the applicable law of a trust is determined, that law would apply to determine "the validity of the trust, its construction, its effects, and the administration of the trust": Hague Convention Art. 8. Severable aspects of the trust may be governed by different law: Hague Convention Art. 9.

1. Hague Convention Art. 8 provides an non-exclusive list of matters to which the determined applicable law will apply as follows:

a) the appointment, resignation and removal of trustees, the capacity to act as a trustee, and the devolution of the office of trustee;

b) the rights and duties of trustees among themselves;

c) the right of trustees to delegate in whole or in part the discharge of their duties or the exercise of their powers;

d) the power of trustees to administer or to dispose of trust assets, to create security interests in the trust assets, or to acquire new assets;

e) the powers of investment of trustees;

f) restrictions upon the duration of the trust, and upon the power to accumulate the income of the trust;

g) the relationships between the trustees and the beneficiaries including the personal liability of the trustees to the beneficiaries;

h) the variation or termination of the trust;

i) the distribution of the trust assets;

j) the duty of trustees to account for their administration.

1. Hague Convention Articles 11-14 govern the extent to which a contracting state is required to recognise the existence and characteristics of a foreign trust. A trust created in accordance with its applicable law will be recognised in Australia as a trust, and so will the capacity and limits of liability of its trustee.

1. But the claim against Vibha will not be governed by the Hague Convention, because the Convention's application is limited only to trusts created voluntarily and evidenced in writing: Hague Convention Art. 4. This includes trusts created inter vivos and testamentary trusts: Hague Convention Art. 2. The Convention does not apply to trusts created by operation of law, such as constructive trusts. A contracting state may declare under Hague Convention Art. 20 that it will apply also to trusts declared by judicial decision, Australia did not make such a declaration. Trusts created by operation of law are still governed by common law rules.

1. There is little common law authority on the choice of law for trusts arising by operation of law: Nygh's Conflict of Laws at [34.29]. In Damberg v Damberg (2001) 52 NSWLR 492 the New South Wales Court of Appeal applied Australian law in a matter involving a constructive trust over German properties, but the Court did not articulate its reasons for doing so. Arguing that the German law may have been more appropriate, the authors of Nygh's Conflict of Laws suggest that Australian Law was applied because the Court's intervention was the exercise of in personam jurisdiction over a trustee, and the law of the forum would apply in relation to such an action (Nygh's Conflict of Laws at [34.30]).

1. The principle postulated to have been applied in Damberg is that each time equitable relief is sought from the Court, the law of the forum (here New South Wales) will apply: National Commercial Bank v Wimborne (1978) 5 BPR 11,958 at 11,982, per Holland J. But the Court of Appeal in this state has more recently stated that although such a rule arguably exists, it is subject to various exceptions: Murakami at [131]-[132] and [139] per Spigelman CJ; see also the discussion in Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 222 at [339]-[346] and in Piatek v Piatek (2010) 245 FLR 137; [2010] QSC 412 at 117. In Murakami Spigelman J accepted the approach taken by the Federal Court in Paramasivam v Flynn (1998) 90 FCR 489 that the law of the forum should arguably not be applied to claims for equitable relief arising from: a contract governed by foreign law; fiduciary duty owed to a foreign corporation by its directors; or where circumstances giving raise to a duty arose abroad. But Spigelman CJ also commented that the categories of exception are not closed (at [139]).

1. Finally the authors of Jacob's Law of Trusts suggest that the following choice of law rules may be appropriate for constructive trusts arising from other relationships between the parties [at 2822]:

Many constructive trusts will arise from abuse of an express trust; examples are the third party who acquires trust property not as a bona fide purchaser, and the trustee who uses his or her position to make a secret profit. Such trusts thus involve abuse in the course of administration of the primary trust and this suggests that the accountability of the defendant as constructive trustee of movables will be determined by the law of the place of administration of the primary trust; there is United States authority to this effect. The accountability as constructive trustee of an errant company director should be determined by the law of the place of incorporation of the company as the source of the company's legal personality, powers and rights. Finally, where the issue arises from contractual relations between the parties, or also from a subsisting fiduciary relationship of a kind not already dealt with in this paragraph, the existence of a constructive trust of movables should be determined, in the case of contractual antecedents, by the proper law of the contract and, where there has been a fiduciary relationship, the proper law thereof, being that selected by the parties or in lieu thereof the law with which the pursuit of that relationship had the closest and most real connection. [footnotes omitted]

1. All that can perhaps be said of this survey of applicable authority is that to the extent that the plaintiff's claim against Vibha (or even Nitin and Vinod) involves a claim in the nature of constructive trust then it is not clear that the law of Fiji will apply. Much may well depend on where the alleged breaches of trust are said to have occurred. But the defendants have not established on the motion that even if Fijian law applies to this aspect of the plaintiff's claim that Fijian law is relevantly different to Australian law so that the application of Fijian law will be a burdensome aspect of these proceedings.

1. One other defendants' argument should be mentioned before leaving choice of law issues. The defendants point out that issues concerning the distribution of movables under Bhagwan's will would normally be determined according to the law of the domicile of the deceased: Nygh's Conflict of Laws Ch 38. But even assuming (which is doubtful given his apparent commitment to Australia from 2006) that the deceased was domiciled in Fiji, the defendant has not identified any issues of this kind that are likely to occupy any of the Court's time. Remembering that probate has been taken out in Fiji, it is not obvious for example, that there will any issue about the capacity of the deceased, about the construction of the will, or about the formal or essential validity of the will. The trust for the benefit of the plaintiff under Bhagwan's will is reasonably clear.

(3) The Course of the trial - applying the Voth test

1. Vidya alleges that her needs are not sufficiently provided for by the payments from the estate. The position of her co-trustees appears to be that the income of the estate is not sufficient to pay more to her.

1. In light of this discussion the Court can now apply the Voth test. In my view for the following reasons New South Wales is not a clearly inappropriate forum for the determination of all the issues the plaintiff raises.

1. An important distinction must be made at the outset. It would be possible to grant a Voth stay of these proceedings in respect of all issues other than those relating to the probate claims in New South Wales and those relating to trust assets in New South Wales. The result would be that the proceedings would continue in this jurisdiction only in relation to local assets. And the balance of any litigation, which the plaintiff wished to pursue, would presumably take place in Fiji. But that conclusion would involve acceptance of a result that the plaintiff would have to conduct two pieces of litigation, one in New South Wales in respect of the local assets in this jurisdiction, and the rest in Fiji.

1. In my view that outcome would be likely to deprive both parties of the legitimate personal and juridical advantages of conducting relatively cost efficient litigation in the one forum. It would not be an acceptable outcome. The decision needs to be made whether New South Wales is a clearly inappropriate forum for the conduct of the whole of the plaintiff's claim.

1. First, the relevant connecting factors of convenience or expense and the residence of the parties do not show that New South Wales is a clearly inappropriate forum. The plaintiff and Vinod live in Sydney. Nitin is a commercial airline pilot and familiar with international travel. Much of the evidence concerning the plaintiffs current needs will need to be gathered in Sydney. The defendant has not made out a case that a substantial number of expert or other witnesses will need to be called from Fiji.

1. Although the administration of the estate so far shows that many of what will become trust assets, are assets in Fiji, including apparently some real estate, much of the defendant's case will be documentary. If the defendants have prepared proper accounts they should readily be able to account for where these assets are and what they are.

1. The plaintiff has a proper basis for bringing her probate claim in respect of assets within the jurisdiction or assets that have been within jurisdiction. There is some estate or trust property within the jurisdiction. The defendants have not given a clear account of where the property has gone. When the probate claims are pursued and the defendants give an account of their dealings with estate assets, then more assets may be found to remain within jurisdiction.

1. The defendants have submitted to the orders before Ward J; orders that may need to be enforced. These orders include an order that this Court administer the trust. For the period they operated these orders were not confined to assets within the jurisdiction. Despite the reservation of the defendants' rights in those orders, if these proceedings were now to be stayed and the plaintiff required to recommence in Fiji, the prospect arises of trust administration being divided for one period in New South Wales and for another period in Fiji. This creates an important present connection with this jurisdiction.

1. Identifiable parts of trust property are in New South Wales - Bhagwan's CBA shares and the contents of the ANZ Bank account are within the jurisdiction, although at present these are only assets of low value.

1. Choice of law issues do not make New South Wales a clearly inappropriate forum. New South Wales law will decide the plaintiff's probate/administration claim. The fact that the plaintiff's trust claim will probably be decided according to the law of Fiji, does not present a particular burden in this case because it has not been demonstrated that the law of Fiji is relevantly different to the law of New South Wales and will require proof.

1. Nor does the existence of the probate proceedings in Fiji make New South Wales a clearly inappropriate forum for these proceedings. The estate administration issues can readily be separated from the plaintiff's claims against Nitin and Vinod as trustees of the trust under Bhagwan's will. By their acceptance of the probate in Fiji, Nitin and Vinod have also accepted office as trustees. They may be required to give an account to the plaintiff of what assets they hold under the trust, and by that means the progress of the administration of the estate in Fiji will be revealed. The Court can assume in their favour that they will administer the estate in Fiji efficiently in the near term and will assent in due course to holding assets as trustees. Once that occurs there will be no active probate/administration proceedings in Fiji.

Conclusions and Orders

1. In the result the plaintiff has successfully established that the first and second defendants have been validly served within this jurisdiction and the third defendant has been validly served outside the jurisdiction in accordance with UCPR Pt 11. If it were required, then I would authorise the plaintiff to proceed against the third defendant under UCPR Pt 11.4 in the absence of an appearance. But as all the defendants have filed an appearance and have not been given leave to withdraw that appearance, formal UCPR r 11.4 authorisation is not necessary. The filed appearances will stand. This Court has jurisdiction over all the defendants in the proceedings.

1. The defendants' alternative argument for a forum non conveniens stay is also unsuccessful. There is evidence of sufficient assets of the trust in New South Wales, and sufficient prospect of local law applying to a subject matter which is not part of the probate proceedings in Fiji that I judge that this is not a clearly inappropriate forum for determination of the issues in these proceedings. And I therefore dismiss the defendants' forum non conveniens application. In the result therefore the defendants' Notice of Motion will be dismissed.

1. Two other matters remain. There may be cost arguments. Costs would normally follow the event. But one or other party may seek a special costs order. So I will hear the parties in relation to costs, if that is required.

1. In the course of these reasons I have given leave to the defendants to file the form of the Amended Summons handed up in Court by Mr Allen and referred to in these reasons. I will direct that this Amended Summons should be filed within fourteen days.

1. The Court's orders therefore are:

1. The defendants' motion is dismissed

2. Direct the parties to file any submissions in relation to costs of the motion by 5pm on 9 August 2013.

3. Grant leave to the plaintiff to amend the Summons in the proceedings in the form handed up to the Court by Mr Allen on 23 August 2012.

4. Note that the appearances already filed on behalf of all defendants will remain and leave to withdraw them will be refused.

5. Direct the plaintiff to file a statement of claim pleading the causes of action claimed in her Amended Summons within 21 days.

6. Matter to be listed before the Equity List Registrar at 9.30am on 23 August.

Decision last updated: 29 July 2013