Hutchison v Hutchison
[2013] VCC 244
•19 March 2013 (revised 20 March 2013)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-12-03855
| CHERELLE HUTCHISON (by the administrator of her estate GEOFFREY JOHN DILLON) | Plaintiff |
| v. | |
| ROWAN HUTCHISON | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2013 | |
DATE OF JUDGMENT: | 19 March 2013 (revised 20 March 2013) | |
CASE MAY BE CITED AS: | Hutchison v. Hutchison | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 244 | |
REASONS FOR JUDGMENT
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Catchwords: Practice and procedure – Whether proceeding should be stayed or dismissed because of the forum – Whether the County Court a “clearly inappropriate forum” to determine the dispute between the parties – Application dismissed – Voth v. Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Coleman | Geoff Dillon & Co |
| For the Defendant | Mr A. Flower | Quinn & Quinn |
HIS HONOUR:
1 The defendant submits that the County Court is not an appropriate forum to consider the claim made by the plaintiff in paragraphs 9 -19 of the statement of claim, rather, that the issues raised in those paragraphs should be determined by a court of the State of New York in the United States of America.
2 The proceeding is essentially a family dispute, which arises as a consequence of the death of Charles Hutchinson in April 1999 in New York State. The plaintiff is the deceased’s former wife. The action is brought on her behalf by her administrator, a solicitor, Mr Geoffrey Dillon. The beneficiaries of the deceased’s estate are the plaintiff as to one third, and the three children of the deceased and the plaintiff (the defendant and his two sisters) as to two ninths each.
3 Because the deceased died in America, difficulties were experienced in relation to his estate, which ultimately resulted in letters of administration being granted to the defendant and an attorney from New York State, Mr Herbert Nass. The principal asset of the estate was the deceased’s interest in a property and business in Manhattan, which was recently sold for a substantial sum.
4 The estate has reached the stage at which the administrators, the defendant and Mr Nass, consider final distributions to the beneficiaries can be made. In fact, the administrators have purported to make a final distribution of the realized assets. The defendant sought to distribute the plaintiff’s entitlement of US$486,211 to her by payment into a bank account at the Collins Street Melbourne branch of Citibank in August 2012.
5 One part of the estate which has not been distributed consists of a series of artworks, which were apparently transported from the US to the defendant in Melbourne between 2006 and 2009. Those artworks are apparently retained by the defendant at his home in Katoomba, New South Wales. The defendant says in respect of those artworks that, “I am currently negotiating a resolution of the issue of how and in what form the artworks are to be distributed between the parties, which I hope to be included in the final releases to be executed by the parties”.
6 The defendant’s co-administrator, Mr Nass, said in a communication on 20 November 2012 to the solicitors for the two beneficiaries who are not parties to this litigation, “As I have arranged for all of these artworks to be returned to my co-administrator in Australia quite sometime ago, I do not believe that I should have any further responsibility or liability for these artworks and the agreement [the final receipt and release agreement that your clients will be signing] should reflect that”.
7 In the proceeding, the plaintiff alleges that:
a.the defendant should be required to provide an accounting with respect to the US artworks, “including the provision…of an inventory…as well as information and details concerning their location, value, insurance and storage arrangements”;
b.in respect of the plaintiff’s one third interest in the balance of the deceased’s estate, that the defendant “furnish to her and verify all accounts and statements of accounts with respect thereto”.
8 The plaintiff’s statement of claim, whist seeking an accounting in respect of the whole of her beneficial interest in the deceased’s estate, specifically seeks an accounting with respect to the artworks.
9 At a hearing before me on 27 November 2012, defendant’s counsel, Mr Flower, “conceded that the Court has jurisdiction to determine matters arising in paragraphs 9-19 of the statement of claim on the basis that the defendant was served with the proceeding in Victoria”. The issue before the Court today is not a matter of jurisdiction, but rather whether this Court is the appropriate forum to determine the disputes between the parties. The relevant test the Court must apply, was set out by the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, particularly at pages 554 and 559.
10 The litigation should proceed in this Court unless the Court refrains from exercising its jurisdiction having concluded that the Court, “is a clearly inappropriate forum”. As the majority judgment in Voth stated at page 559, “There is an obligation on the domestic Courts of this country to exercise jurisdiction which is conferred upon them [although] it does not extend to cases where the forum is clearly inappropriate”. Page 554 of the judgment sets out the principles a court should take account of in considering whether it has been established that the court is a “clearly inappropriate” forum.
11 In the present case, Mr Flower relied upon the following matters:
a.the appropriate law for the Court to apply would be the law of the State of New York, as the relevant trust was created in that State;
b.Mr Nass, an attorney resident in New York State, would be an essential witness for the defendant as he was primarily responsible for supervising the carrying out of the trust. Most documents relating to the trust are in his possession;
c.although Mr Nass was largely responsible for the administration of the trust, he is not a party to the present proceeding and therefore would not be bound by any order made by the Court;
d.there are significant assets in New York which have not yet been distributed;
e.the tax liability of the estate would be regulated by New York law;
f.the right of the trustees to be remunerated would be regulated by New York law.
g.Ordinarily, issues relating to the estate would be litigated in the appropriate court in New York.
12 No submissions were addressed in respect of paragraph (d). In fact the evidence suggests that all assets in the estate apart from the artworks, have (according to the administrators) been distributed. Further, there is nothing in the material to suggest there is any issue that has arisen, or is likely to arise, in relation to the tax liability of the estate. The remuneration of the trustees has been notified to the beneficiaries and it is not apparent that there is presently any dispute as to the calculation of that remuneration.
13 In relation to the beneficiaries of the deceased’s estate:
a.the plaintiff and her administrator apparently reside in Victoria;
b.although the defendant presently resides in Katoomba, New South Wales, at the time the writ was served upon him, he resided in Victoria;
c.the remaining two beneficiaries apparently reside in Victoria and are represented by a Victorian firm of solicitors.
14 Whilst Mr Nass is a co-administrator of the estate with the defendant, he was appointed to that role because of his position as an attorney and otherwise has no interest in the estate. The defendant has stated in affidavit material that he has, “properly carried out my functions as co-administrator” and that Mr Nass has carried out his functions “with my approval and oversight”.
15 The defendant has filed an extensive affidavit in relation to the application which includes correspondence from Mr Nass to the beneficiaries and other documents relating to the administration of the estate. In the circumstances, it seems unlikely that Mr Nass as attorney would not continue to co-operate with the defendant and to provide whatever was necessary for the defendant to conduct the proceeding in this Court and to comply with any orders made either during the interlocutory processes or if relief were granted to the plaintiff.
16 Accordingly, I am not satisfied that the defendant has established that this Court would be a clearly inappropriate forum for the determination of the matters raised in paragraphs 9-19 of the statement of claim and the relief sought in respect of those paragraphs.
17 I consider that:
a.the plaintiff having, “regularly invoked the jurisdiction of [this] Court has a prima facie right to insist upon its exercise”;
b.no significant injustice would be caused to the defendant if the proceeding were to remain in this Court. If the proceeding were to be stayed on the basis that the matters raised and the relief sought should more appropriately have been brought in the State of New York, injustice might occur to the plaintiff and her administrator in seeking to litigate those matters in that forum;
c.although it appears that Mr Nass has been responsible for the administration of the estate in a practical sense and he would be the primary repository of documents relating to that administration, it is not at all clear that he would necessarily need to be a witness in the proceeding, or that any difficulty would be encountered in the provision of copy documentation from his records if that were required in this proceeding;
d.it is not at all clear what is the appropriate law which might apply to determine issues in this case. In respect of the artworks, as the artworks are in Australia and Mr Nass does not consider that as co-administrator he has any further responsibility for them, it is likely that issues relating to the artworks would be determined in accordance with Australian law. In relation to the other assets in the estate, those assets have apparently been realised and a purported distribution made to the plaintiff. Those monies having been brought within the jurisdiction and presently remaining in the jurisdiction, issues relating to those monies and their calculation as a distribution of the balance of the deceased’s estate may also need to be determined according to Australian law;
e.it is possible that if issues arise in respect to the general administration of the estate, which is apparently under the general supervision of a court of the State of New York, that issues of the law of that State might need to be considered, It is unlikely however that, if such issues arise, the question of the appropriate law and its application would cause the sort of difficulties which would make it clearly inappropriate for this Court to remain the forum for the determination of the disputes between the parties;
f.the Court has an obligation when considering whether to stay or dismiss an action where it is alleged that the forum is inappropriate, to exercise those powers, “with great care” or “with extreme caution”.
18 Accordingly, the defendant’s application will be dismissed.
19 It is necessary, however, if this matter is to remain in this Court, that the proceeding be managed in such a way that the estate, which would otherwise be distributed to the family members who are beneficiaries, is not dissipated by the incurral of unnecessary legal costs.
20 Essentially, the plaintiff’s complaint is that the defendant failed to provide certain specific information which would enable the administrator of the plaintiff to determine that the proposed distribution to her is her proper entitlement. During the course of filing material in respect of this application, the defendant has gone some way in providing material, apparently with the assistance of his co-administrator Mr Nass. The interlocutory processes in the proceeding should be framed to ensure that any further necessary information is provided as quickly and cost effectively as possible. In relation to the artworks, it appears that the defendant wishes to discuss with his fellow beneficiaries a process for a distribution of the artworks themselves as between the beneficiaries or if this is not appropriate, the realisation of the artworks and the distribution of the proceeds of the realisation.
21 All of these matters will require the cooperation of the parties and the other beneficiaries. It would seem appropriate that directions be given which provide the parties with the opportunity to seek preliminary discovery, but strictly limited in its scope, so that the cost of compliance is not out of proportion. Once this process has been completed, the parties should be encouraged to mediate the dispute, either between the defendant and the administrator of the plaintiff or, if possible, with the attendance of the other two beneficiaries.
22 I will hear further from the parties before making appropriate directions and orders.
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Certificate
I certify that these 6 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 19 March 2013 and revised on 20 March 2013.
Dated: 20 March 2013
Philippa Gilkes
Associate to His Honour Judge Anderson
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