Murphy v Buckley

[2009] NSWSC 60

CITATION:	Murphy v Buckley [2009] NSWSC 60
HEARING DATE(S):	15, 19 December 2008
JUDGMENT DATE :	19 February 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Decline to grant injunctions against fourth and fifth defendants in Ireland from dissipating their assets.
CATCHWORDS:	EQUITY [340]- Whether an injunction preserving assets of a notional estate against the possibility of a successful Family Provision claim should be granted against defendants in Ireland- Defendants innocently received assets from deceased before he died- Equity will not make an order where no realistic chance of enforcement against the person- Injunction would not be enforceable in Ireland- Irish defendants have no connection with jurisdiction. SUCCESSION [290]- Family Provision- Claim of daughter against notional estate- Deceased gave defendants money prior to his death, thus notional estate- Injunction sought against Irish defendants to preserve assets constituting part of notional estate against the possibility of a successful Family Provision claim.
LEGISLATION CITED:	Family Provision Act 1982, s 7 Probate and Administration Act 1898, s 41A
CASES CITED:	Hospital for Sick Children (Board of Governors) v Walt Disney Productions Inc [1968] Ch 52 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510
PARTIES:	(A minor) (P) P M Buckley (D1) J G Buckley (D2) B Munro (D3) S Murphy (D4) J Whitty (D5)
FILE NUMBER(S):	SC 6184/08
COUNSEL:	S Hughes (P) No appearance for defendants
SOLICITORS:	Haydon Fowler Corbett Jessop (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 19 February 2009

6184/08 – MURPHY v BUCKLEY

JUDGMENT

1 HIS HONOUR: The plaintiff in these proceedings seeks relief under s 7 of the Family Provision Act 1982 out of the notional estate of Patrick Joseph Murphy who died on 5 February 2008. The plaintiff, who sues by her tutor, was born on 31 March 1999 in Dublin, her father being the deceased. The deceased was not married to the plaintiff’s mother.

2 All the parties appear to have been living in Australia prior to the deceased’s death. The plaintiff’s mother says that in early 2006 the deceased telephoned her and said he had been diagnosed with lung cancer and he said: “I know I haven’t been the best father to [the plaintiff] but I promise I’ll make it up to her in my will.”

3 The deceased returned to Ireland in September 2006 but changed his mind about living there permanently and returned to Australia shortly before his death.

4 It would seem that the deceased died domiciled in New South Wales but this may be debateable.

5 In October 2007, the plaintiff’s mother said that the deceased telephoned her and said that he had been to see a solicitor with his sister Pauline, the present first defendant, and he informed the plaintiff’s mother that the plaintiff would be receiving 50% of the estate.

6 The executor and the deceased’s sister, Pauline, at all material times, had lived in Perth, Western Australia. The plaintiff and her mother currently live in Ireland.

7 By his will of 19 October 2007 (of which probate appears to have been granted to the first defendant’s husband in Western Australia) the deceased gave half his estate to the plaintiff. The executor has sent the plaintiff’s mother a cheque for $3,566.11 which he says is 50% of the actual estate.

8 The plaintiff says that shortly before his death the deceased had other assets of over $400,000.

9 Plaintiff’s counsel informs that the deceased gave away all except $7,000 of his estate prior to his death. The people who received that money which I can, for present purposes, assume is part of the notional estate for the purposes of the Family Provision Act 1982, are the first two defendants who live in Western Australia, the third defendant who is the alleged de facto partner of the deceased who lives in New South Wales and the final two defendants who live in the Republic of Ireland. The plaintiff says that $105,000 went to the first two defendants, $105,000 to the third defendant, and $142,000 to the Irish defendants.

10 The plaintiff seeks an injunction to prevent dissipation of these sums until her claim can be heard.

11 There is no threat by the first three defendants to dissipate their assets, and indeed, all of them appear to be the registered proprietors of real property.

12 Accordingly, the real question is whether an injunction should be granted against the two gentlemen who live in Ireland. Those defendants have not appeared.

13 Mr Hughes of counsel has informed me that he has had access to advice from counsel in Ireland that no injunction by this Court would be enforceable in the courts of Ireland: (a) because an injunction is not a judgment for a specific money sum; and (b) Australian orders would only be recognised if the person against whom the order had been made had appeared or voluntarily submitted to the jurisdiction. Nonetheless, Mr Hughes pressed for injunctive relief against the Irish defendants.

14 I should note that because no grant of administration has been made in New South Wales, the Court may need to be asked to make a grant under s 41A of the Probate and Administrationc Act 1898, and that no formal injunction can be granted until that occurs. However, in the light of these reasons, that is probably purely academic.

15 On the material before me to date, there would seem little doubt that there is notional estate within the meaning of the NSW Act in the hands of these Irish gentlemen. However, that property came into their hands innocently as a result of the actions of the deceased before he died.

16 If, as appears likely, the deceased was domiciled in New South Wales, New South Wales law would govern the administration of his moveables.

17 Mr Hughes referred me to a number of cases in which courts have made orders preserving assets against the possibility of a successful claim under the Family Provision Act. I do not need to look at the details of these because of the view I have reached with respect to the primary question. For present purposes I will just assume that in the ordinary course of events this case would have been one where a restraint would have been ordered.

18 Although there are now considerable exceptions to its operation, basically the rule equity acts in personam is still apposite. Generally speaking, equity will not make an order for injunction where it has no realistic chance of enforcing its order against the person against whom it is made.

19 Ordinarily, equity expects it to be shown that the defendant: (a) resides within the jurisdiction; (b) has submitted to the jurisdiction; or (c) has property within the jurisdiction, before it will make an order.

20 However, as the English Court of Appeal held in Hospital for Sick Children (Board of Governors) v Walt Disney Productions Inc [1968] Ch 52, the Court is entitled to assume, unless there is contrary material, that the defendant has property within the jurisdiction. That exception does not apply in the instant case because there is material which indicates that the Irish defendants have no connection with this jurisdiction.

21 Mr Hughes then calls in aid the recent decisions of the Federal Court, the latest manifestation of which is Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510, that where a claim is of a public interest nature then the Court should not withhold relief due to any practical difficulty of enforcement which arises if the Court’s injunction is disobeyed.

22 The present case can by no means be described as public interest litigation. The cases of which the Humane Society case is the latest, must be seen to be limited to that field and not intended to abrogate the ordinary rule. Accordingly, I do not consider that I should grant any injunctions against the fourth and fifth defendants.

23 I will now proceed to give directions for the ongoing prosecution of the proceedings.

*****************************