IMO Kesner - [2014] VSC 86

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2012 04832

IN THE MATTER of the Estate of ARMIN KESNER
and
IN THE MATTER of an application pursuant to ss 51(1) and/or 57(a) of the Trustee Act 1958
and
IN THE MATTER of an application pursuant to s 103(1) of the Transfer of Land Act 1958

JUDITH SAURO	Plaintiff
v
CHAYA LEIBOWITZ RABBI YEHUDA MOSHE KARPFEN ARTHUR ROSENSTEIN THE REGISTRAR OF TITLES	Defendants

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JUDGE:	LANSDOWNE As J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2014
DATE OF JUDGMENT:	12 March 2014
CASE MAY BE CITED AS:	IMO Kesner
MEDIUM NEUTRAL CITATION:	[2014] VSC 86

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FOREIGN LAW — Service in Israel — Hague Convention — Recognition of compromise agreement entered into in Israel — Recognition of grant of probate in Israel — Vesting order to give effect to compromise — Supreme Court (General Civil Procedure) Rules 2005 rr 7.01, 7.03, 7.04, 80.10 — Trustee Act 1958 s 51 — Administration and Probate Act 1958 ss 81 and 88 — Foreign Judgments Act 1962 (Vic) — Foreign Judgments Act 1991 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr G. Moore	Harry Szmerling & Co Lawyers
For the Defendants	No appearance

HER HONOUR:

Introduction

This matter came before me for trial, the plaintiff seeking final orders pursuant to an originating motion filed 23 August 2012. By that originating motion, the plaintiff seeks to give effect, insofar as they relate to her, to orders made in Israel arising out of a settlement of disputed litigation concerning her late father’s will. All parties to that litigation agreed in a document entitled “Compromise” dated 14 June 1993 that the deceased’s real estate in Victoria, a property at 264-266 St Kilda Road, St Kilda, would be transferred to the plaintiff. In return, she gave up any claim to the balance of her late father’s estate in Israel, which was where he died and made his last will. The compromise agreement was given effect to by orders made in Israeli courts on 14 June 1993 and 24 November 1996.

The balance of the deceased’s estate was distributed many years ago, but the real estate has never been transferred to the plaintiff. The plaintiff now seeks orders to achieve that outcome.

The defendants to the proceeding are the principal alternative claimant to the plaintiff’s father’s estate, Ms Leibowitz (who claimed to be a partner of the deceased) and, as second and third defendants, the executors of the deceased’s estate pursuant to order of the Israel District Court made 24 November 1996. The fourth defendant is the Registrar of Titles.

The originating motion, summons on originating motion and three affidavits in support were all filed 23 August 2012, but the matter did not progress and has been successively adjourned since that time due to delay in service on the first three defendants in Israel. Service was effected on those defendants pursuant to Order 80 of the Supreme Court (General…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] VSC 86
Decision Date: 12 March 2014

CaseChat Overview and Summary

The case of IMO Kesner was heard by the Supreme Court of Victoria, where the plaintiff sought recognition of a compromise agreement and a grant of probate entered into in Israel. The dispute arose from the estate of the deceased, a resident of Israel, with assets in Australia. The primary issue before the court was whether it had the jurisdiction to recognise the foreign compromise agreement and the grant of probate, and if so, how to effectuate these in Australian law. The court had to navigate the provisions of the Hague Convention on Private International Law, the Foreign Judgments Act 1962 (Vic), and the Foreign Judgments Act 1991 (Cth), alongside state legislation such as the Supreme Court (General Civil Procedure) Rules 2005 and the Trustee Act 1958.

The court considered whether the recognition of the foreign compromise agreement and grant of probate was permissible under the applicable foreign judgments legislation and conventions. It examined the enforceability of the compromise agreement under Australian law and the implications for the distribution of the deceased's assets. The court also had to determine if the rules and acts governing service of documents and probate in Victoria could accommodate the foreign proceedings. The plaintiff argued that the foreign judgments should be recognised to ensure the estate was properly administered, while the defendant contested the jurisdiction of the Victorian court over foreign matters.

The court concluded that the foreign compromise agreement and grant of probate could be recognised under the applicable foreign judgments legislation, provided certain conditions were met. It held that the Victorian court had the jurisdiction to vest the estate in the trustee as per the compromise agreement and grant of probate. The court found that the Hague Convention and the relevant Victorian and Commonwealth legislation supported the recognition and enforcement of the foreign judgments. The plaintiff was therefore entitled to the relief sought, including the vesting of the estate in accordance with the compromise agreement.

The final orders of the court included recognising the foreign compromise agreement and grant of probate, and directing the vesting of the deceased's Australian assets in the trustee as per the compromise. The court also ordered that the estate be administered in accordance with the terms of the compromise agreement, ensuring that the distribution of the deceased's assets reflected the agreement reached in Israel.

Orders