Independent Trustee Services Ltd v Anthony John Morris - [2010] NSWSC 847

CITATION: Independent Trustee Services Ltd v Anthony John Morris [2010] NSWSC 847

HEARING DATE(S): 29 July 2010

JUDGMENT DATE :
4 August 2010

JUDGMENT OF: Ball J

DECISION: 1. Order that the time for compliance with orders 8(a) and 8(b) of the orders made by Pembroke J on 15 July 2010 be extended to 21 July 2010.
2. Otherwise, dismiss the defendant's amended notice of motion dated 27 July 2010 with costs.

CATCHWORDS: PRACTICE AND PROCEDURE - forum non conveniens - subject matter of proceedings already subject of proceedings in England where judgment was obtained in plaintiff's favour - whether proceedings in New South Wales would cause hardship - New South Wales Supreme Court appropriate venue - no hardship to defendant.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (Cth)
Foreign Judgments Act 1991 (Cth)
Uniform Civil Procedures Regulations (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Davis v Turning Properties Pty Ltd (2005) 222 ALR 676; [2005] NSWSC 742
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
White v Verkouille [1990] 2 Qd R 191

PARTIES: Independent Trustee Services Limited (as Trustee of the Pension Schemes Listed in Annexure "A") (Plaintiff)
Anthony James Morris (Defendant)

FILE NUMBER(S): SC 2010/236266

COUNSEL: G Parker SC (Plaintiff)
A R Zahra(Plaintiff)
G Laughton SC (Defendant)
S Kettle (Defendant)

SOLICITORS: Clayton Utz (Plaintiff)
Finn Roache Lawyers (Defendant)

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

4 AUGUST 2010

2010/236266 INDEPENDENT TRUSTEE SERVICES LTD v ANTHONY JOHN MORRIS

JUDGMENT

1 CORAM: JudgmentOn 15 July 2010 the plaintiff, who is the trustee of a number of English pension schemes, commenced proceedings against the defendant for various orders in connection with the payment out of those funds of a total amount of ₤52,000,000. The orders are essentially of two types. First, the plaintiff seeks orders in aid of or to give effect to orders of the High Court of Justice of England and Wales made by Peter Smith J on 1 and 2 July 2010 in proceedings between the plaintiff and the defendant (among others). Alternatively, the plaintiff seeks judgment against the defendant in the sum of ₤52,000,000 together with ancillary orders. At the time the summons was filed, the plaintiff also sought and was granted an ex parte freezing order by Pembroke J.

2 On 21 July 2010 the defendant filed a motion seeking an order that the proceedings be dismissed or stayed. That motion was amended with leave on 27 July 2010 to seek three additional orders. Two orders sought by the defendant concerned extensions of time in which to provide information disclosing his assets in accordance with paragraph 8 of the freezing order made by Pembroke J. Those orders were not opposed by the plaintiff. A third order sought an order that the defendant had, in fact, complied with one of the disclosure orders made by Pembroke J. In my…

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: [2010] NSWSC 847
Decision Date: 4 August 2010

CaseChat Overview and Summary

The case of Independent Trustee Services Ltd v Anthony John Morris arose in the Supreme Court of New South Wales. The plaintiff, Independent Trustee Services Ltd, sought to enforce a judgment obtained in England against the defendant, Anthony John Morris. The dispute centred on the application of the doctrine of forum non conveniens, with the plaintiff arguing that New South Wales was the appropriate venue for the proceedings, while the defendant contended that England was the more convenient forum.

The primary legal issue before the court was whether the proceedings in New South Wales would cause substantial hardship to the defendant, which would necessitate the application of the doctrine of forum non conveniens. The court had to consider whether the subject matter of the proceedings was already being addressed in England, where a judgment had been obtained in the plaintiff's favour, and if so, whether it was appropriate to allow the proceedings to continue in New South Wales.

The court found that the subject matter of the proceedings was already being addressed in England, but concluded that there was no substantial hardship to the defendant in proceeding in New South Wales. The court determined that the New South Wales Supreme Court was an appropriate venue for the proceedings, and that there was no evidence of undue hardship to the defendant that would warrant the application of the doctrine of forum non conveniens.

Accordingly, the court dismissed the defendant's application to stay the proceedings on the grounds of forum non conveniens. The plaintiff was thus permitted to continue with the enforcement of the English judgment in New South Wales.

Orders