109 NSWLR 39Murakami v Wiryadi[2010] NSWCA 7Court of AppealSpigelman CJ, McCOLL and Young JJA12November 2009, 15 February 2010
PRIVATE INTERNATIONAL LAW — Jurisdiction — Non-exercise of jurisdiction — Forum non conveniens.PRIVATE INTERNATIONAL LAW — Applicable law — Choice of law rules — Immovable property.PRIVATE INTERNATIONAL LAW — Applicable law — Choice of law rules — Equitable claims.
A man died in Indonesia survived by his four children, two from a former marriage and two from a de facto relationship. His estate comprised property in Indonesia and several other jurisdictions. Under Indonesian succession law, each of his children was entitled to a quarter of their father’s estate.
The man had divorced his wife in the Indonesian courts. Under Indonesian law, all property acquired by either party during the marriage, wherever situated, was the common property of the marriage and, upon dissolution of the marriage, was to be divided between them in equal shares.
One of the children from the man’s de facto relationship was granted probate of his estate in New South Wales. She then brought proceedings, in her capacity as executor, seeking declarations that certain real property in New South Wales acquired variously by the former wife and children of the marriage, sale proceeds of other real property in New South Wales, and an Australian bank account, were held on constructive trust for her. The claim was based on allegations that this property should have been, but was not, declared as common property of the marriage and should be divided equally between the man’s estate and his former wife. Alternatively, she sought a declaration that the properties and the proceeds of sale of the properties were held for her on resulting trust.
The man’s former wife and his children from the marriage applied for a stay of proceedings on the basis that the issues sought to be determined should be determined by Indonesian courts. The primary judge ordered a permanent stay of the proceedings.
The executor appealed to the Court of Appeal.
Held (allowing the appeal): (1) In determining whether there was an error in the making of a permanent stay on the basis of forum non conveniens, the approach in House v The King(1936) 55 CLR 499; [1936] HCA 40 should be applied. ([32]–[35], [54]–[55]; [166]; [167])
(2) The substantive law to be applied in the proceedings is relevant when considering whether the local forum is “clearly inappropriate”. Whether the local forum is clearly inappropriate may depend upon the substantive law to be applied. However, it is inappropriate to decide choice of law questions finally when determining an application for a stay on the basis of forum non conveniens when the legal issues to be decided have not been identified. ([63]; [166]; [167])
(3) In applying conflict of law rules to determine the substantive law, it is necessary to identify the questions in issue, rather than simply the cause of action on which the…
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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AGLC
Murakami v Wiryadi [2010] NSWCA 7
Case
[2010] NSWCA 7
Decision Date
CaseChat Overview and Summary
Murakami (the plaintiff) brought proceedings against Wiryadi (the defendant) in the Supreme Court of New South Wales. The dispute concerned the plaintiff's claim for damages for breach of contract, specifically relating to an agreement for the sale of shares in a company. The plaintiff alleged that the defendant had failed to complete the purchase of these shares in accordance with the terms of the contract.
The primary legal issue before the Court of Appeal was whether the plaintiff had validly terminated the contract for the sale of shares due to the defendant's alleged repudiation. This involved determining whether the defendant's conduct constituted a repudiation of the contract, and if so, whether the plaintiff's subsequent termination was a lawful exercise of their rights. A further issue concerned the assessment of damages, should the termination be found to be lawful.
The Court of Appeal considered the principles of repudiation in contract law, focusing on whether the defendant's actions evinced an intention no longer to be bound by the contract or to fulfil its essential terms. The court analysed the correspondence and conduct of the parties in light of these principles. The court found that the defendant's conduct did not amount to a repudiation of the contract, and therefore the plaintiff's purported termination was itself a breach of contract. The court also considered the plaintiff's claim for damages, finding that as the termination was unlawful, the plaintiff was not entitled to damages for breach of contract by the defendant.
The Court of Appeal allowed the defendant's appeal, set aside the orders of the primary judge, and ordered that the plaintiff's claim be dismissed.