Independent Trustee Services Ltd v Morris - [2010] NSWSC 1218

CITATION: Independent Trustee Services Ltd v Morris [2010] NSWSC 1218

HEARING DATE(S): 20 October 2010

JUDGMENT DATE :
20 October 2010

JUDGMENT OF: Bryson AJ at 1

EX TEMPORE JUDGMENT DATE: 20 October 2010

DECISION: 1. Judgment in favour of the Planitiff against the Defendant in the sum of ₤29,397,240.96.
2. An order that an account be taken before an Associate Justice, on the basis of wilful default, of the dealings by the Defendant, his servants and agents with the ₤52 million paid out of the Impacted Schemes as referred to in order 1 of the orders of the High Court of Justice Chancery Division of 1 July 2010, and the traceable proceeds thereof.

CATCHWORDS: COURTS and JUDGES - PRIVATE INTERNATIONAL LAW recognition and enforcement of foreign judgments - plaintiff obtained in litigation in High Court London judgment for money amount and declarations establishing liability for knowing ssistance of breaches of trust, and order for accounts - plaintiff sought judgment and orders in NSW enforcing orders of High Court - exercise of jurisdiction in UK based on service outside UK (and in NSW) and not on service within UK - defendant, a UK citizen resident in Australia, did not appear and plaintiff applied for summary disposal consideration of - recognition and enforcement of foreign judgments for a) money sum, b) equitable remedies - citizenship of foreign jurisdiction as a ground for recognition, sufficient connexion as ground for enforcement of equitable remedies - after review of case law, judgment and orders of High Court were enforced

LEGISLATION CITED: Uniform Civil Procedure Rules 2005

CASES CITED: Davis v Turning Properties Pty Ltd [2005] NSWSC 642
Emanuel v Symon [1908] 1 KB 302
Federal Finance and Mortgage Ltd v Winternitz (unreported SC (NSW), 9 November 1989)
General Steam Navigation Co v Guillou (1843) 11 M & W 877
Houlditch v Marquis of Donegal (1834) 2 Cl & F 470; 6 ER 1232
Rainford v Newell-Roberts [1962] IR 95
Roussillon v Roussillon (1880) 14 Ch D 351
Schibsby v Westenholz (1870) LR 6 QB 155
White v Verkouille [1990] 2 Qd R 191

TEXTS CITED: Not applicable

PARTIES: Independent Trustee Services Ltd
Anthony James Morris

FILE NUMBER(S): SC 2010/236266

COUNSEL: Pl: Mr Parker SC / Mr Zahra
Def: No appearance

SOLICITORS: Pl: Clayton Utz, Sydney
Def: No appearance.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Wednesday 20 October 2010

SC 2010/236266 INDEPENDENT TRUSTEE SERVICES LTD v
ANTHONY JAMES MORRIS

JUDGMENT

1 HIS HONOUR: The plaintiff by summons of 15 July 2010 claimed relief with the effect of enforcing in New South Wales Judgments and Orders made in the High Court of Justice of England and Wales on 1 and 2 July 2010 by Justice Peter Smith.

2 The evidence shows that the defendant was duly served with the summons in the present proceedings. He has not appeared. Further, he has been served with the Notice of Motion filed by the plaintiff on 6 October 2010 which is before me…

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.

Continue reading Independent Trustee Services Ltd v Morris

Details

AGLC: Independent Trustee Services Ltd v Morris [2010] NSWSC 1218
Case: [2010] NSWSC 1218
Decision Date: 20 October 2010

CaseChat Overview and Summary

The matter before the court was an application by Independent Trustee Services Ltd (the plaintiff) to enforce a judgment obtained in the High Court of England and Wales against Morris, a UK citizen residing in Australia. The plaintiff's judgment included a monetary sum, declarations establishing Morris's liability for knowingly assisting breaches of trust, and an order for accounts. The primary legal issues the court had to address were whether the judgment could be recognised and enforced in New South Wales, given that the UK court's jurisdiction was based on service outside the UK (and within Australia), rather than within the UK itself. Additionally, the court had to consider whether the citizenship of the foreign jurisdiction and the concept of sufficient connexion were appropriate grounds for the recognition and enforcement of the equitable remedies ordered by the UK court.

The court carefully reviewed relevant case law and the specifics of the UK judgment before concluding that the UK court had jurisdiction over the matter based on the service of the proceedings outside the UK. Despite this, the court found that the UK judgment could still be recognised and enforced in Australia. The court held that the citizenship of the UK, where the judgment was rendered, did not preclude recognition, and that Morris's presence in Australia constituted a sufficient connexion to justify enforcement of the equitable remedies. The court ultimately determined that the monetary sum and equitable remedies ordered by the UK judgment were enforceable in New South Wales.

In light of the court's findings, the plaintiff's application to enforce the UK judgment was successful. The court granted the plaintiff's request for recognition and enforcement of the monetary sum awarded, as well as the equitable remedies, including the declarations of liability and the order for accounts. This decision allowed the plaintiff to pursue the enforcement of the UK judgment in Australia, thereby ensuring that Morris complied with the obligations set out in the original judgment.

Orders