Singh v Kaur BAL
[2008] WASC 62
•29 APRIL 2008
SINGH -v- KAUR BAL [2008] WASC 62
| Link to Appeal : | [2009] WASCA 53 |
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 62 | |
| Case No: | CIV:1264/2006 | 1 APRIL 2008 | |
| Coram: | MASTER SANDERSON | 29/04/08 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SARDUL SINGH TEESHALDIP KAUR BAL MAN MAHAN SINGH SATWANT KAUR |
Catchwords: | Practice and procedure Challenge to court's jurisdiction to deal with action Turns on own facts |
Legislation: | Property Law Act 1969 (WA), s 89 |
Case References: | Atkinson v Atlas Investments Ltd [2004] NSWSC 63 British South Africa Co v Companhia de Mocambique [1893] AC 602 Conlan v Registrar of Titles [2001] WASC 201 Couzens v Negri [1981] VR 824 First Industry Corp v Goh [2002] WASC 111 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Parker v Tranfield [2001] WASCA 233 Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479 Singh v Singh [2006] WASC 182 The Commonwealth v Woodhill (1917) 23 CLR 482 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TEESHALDIP KAUR BAL
First Defendant
MAN MAHAN SINGH
Second Defendant
SATWANT KAUR
Third Defendant
Catchwords:
Practice and procedure - Challenge to court's jurisdiction to deal with action - Turns on own facts
Legislation:
Property Law Act 1969 (WA), s 89
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr E Carlose
First Defendant : In person
Second Defendant : In person
Third Defendant : In person
Solicitors:
Plaintiff : Eapon Carlose
First Defendant : In person
Second Defendant : In person
Third Defendant : In person
Case(s) referred to in judgment(s):
Atkinson v Atlas Investments Ltd [2004] NSWSC 63
British South Africa Co v Companhia de Mocambique [1893] AC 602
Conlan v Registrar of Titles [2001] WASC 201
Couzens v Negri [1981] VR 824
First Industry Corp v Goh [2002] WASC 111
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Parker v Tranfield [2001] WASCA 233
Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479
Singh v Singh [2006] WASC 182
The Commonwealth v Woodhill (1917) 23 CLR 482
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
(Page 3)
1 MASTER SANDERSON: This is an application by all three defendants for orders that:
1. The writ of summons dated 22 March 2006 be dismissed on the grounds that the Supreme Court of Western Australia:
(a) has no jurisdiction to hear and adjudicate upon this Writ of summons; and
(b) is the forum non conveniens.
3 The defendants, who appeared in person, filed lengthy affidavits in support of the application and detailed written submissions. Essentially, their argument was two-fold. First, that this court has no jurisdiction to decide questions involving title to property in another jurisdiction and, secondly, that any judgment obtained in this action cannot be registered in Malaysia, rendering the proceedings futile. It was not disputed by the plaintiff that if he was successful in obtaining judgment in this court, that judgment could not be registered in Malaysia.
4 The plaintiff opposed the defendants' application on a number of grounds. First, it was said that in separate proceedings Simmonds J had considered submissions to a similar effect and had ruled that issues raised by this application should be tried at the hearing of the action.
5 I assume that the plaintiff is referring to the decision of his Honour in Singh v Singh [2006] WASC 182. In that case his Honour was dealing with an application by the defendant to set aside a judgment entered after a trial at which the defendant did not appear. It was the defendant's position that if the judgment entered was set aside, he would at a fresh trial raise as an issue the jurisdiction of the court to deal with the matter given that the action concerned property in Malaysia. He also intended to argue that the Western Australian Supreme Court was a forum non conveniens. His Honour set aside the judgment, meaning that both of these matters could be raised by the defendant at a subsequent hearing. However, his Honour did not determine that either or both of the
(Page 4)
- defendant's arguments were bound to fail. Reliance upon his Honour's decision does not assist the plaintiff in this case.
6 On behalf of the plaintiff it was submitted that this application ought be considered in light of a number of well settled principles. These are:
1. Where the plaintiff resides in Australia, the court has an obligation to exercise jurisdiction at the demand of the plaintiff. The prima facie right of the plaintiff is not to be lightly displaced or denied unless the selected forum is clearly inappropriate: see Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, 559.
2. The onus lies on the defendant to satisfy the court that the selected forum is so inappropriate that the continuation of proceedings would be oppressive and vexatious to the defendant: see Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197, 247 - 248 (Deane J).
3. It is now settled that the State of Western Australia has the power to make laws which operate extraterritorially and it is within the competence of the state legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person of rights and obligations: see Parker v Tranfield [2001] WASCA 233 [57] - [79]. It is also within the competence of the legislature to base the imposition of liability on no more than the mere presence of the defendant within the jurisdiction: see Oceanic Sun Line Special Shipping Co Inc v Fay (245).
4. In relation to forum non conveniens, the principle factors to be considered are the place of performance, the place of residence or business of the parties and the nature of the subject-matter of the contract: see Oceanic Sun Line Special Shipping Co Inc v Fay (214).
5. Any significant connection between the forum selected and the subject-matter of the action and/or the parties, such as domicile of the parties, their places of business, the place where the transaction occurred or the subject-matter of the suit or where the subject-matter of the suit is located, is a relevant matter to be considered in deciding whether the forum selected is appropriate.
6. An action against a registered proprietor of land to enforce conscientious obligations is an action in personam, not one in rem: see Conlan v Registrar of Titles [2001] WASC 201 [171] - [176].
(Page 5)
- 7. If the plaintiff succeeds in securing a declaration that the alienation was void, then he would be entitled to consequential relief including an order that the interest held by the first and third defendants be held in trust for the creditors of the second defendant's bankrupt estate: see First Industry Corp v Goh [2002] WASC 111 [36].
7 Against these criteria, it is clear that in all respects save one, this court is the proper jurisdiction for the hearing of a dispute between the parties. What is against that course of action is the fact that the property the subject of the transfer executed in Western Australia is in Malaysia. The real question is whether that fact is sufficient to bring these proceedings to an end.
8 The starting point in determining this question is the so-called 'Mocambique rule'. This is a reference to the decision of the House of Lords in British South Africa Co v Companhia de Mocambique [1893] AC 602. In that case, their Lordships held that the Supreme Court of Judicature had no jurisdiction to entertain an action for trespass to land situated abroad. The Mocambique case has been followed by a long line of cases in Australia commencing with Potter v Broken Hill Pty Co Ltd (1906) 3 CLR 479 through to The Commonwealth v Woodhill (1917) 23 CLR 482 up to Atkinson v Atlas Investments Ltd [2004] NSWSC 63.
9 There can be no doubt that the Mocambique rule as a broad statement of principle represents the law in Australia at present. But there are exceptions to the rule. The decision of Marks J in Couzens v Negri [1981] VR 824 provides an example of such an exception. His Honour held that where land is the subject of a disputed trust, the court is empowered to make findings of fact necessary to determine whether it has jurisdiction. If the jurisdiction depends on the existence of a valid trust, then it must be within the power of the court to determine whether there is one. Jurisdiction may be exercised in respect of a person within the jurisdiction who owes a personal obligation capable of being enforced in the jurisdiction provided that no adjudication touching on the laws of another nation is directly involved. His Honour went on to hold that where foreign land is the subject of a trust, the court has jurisdiction to compel a Victorian trustee to fulfil its obligations under the trust.
10 In my view, that is arguably the case here. It must be remembered that this is an interlocutory application and I am not asked to determine whether or not the plaintiff's claim against the defendants will succeed. What I have to determine to dispose of this application is whether or not the plaintiff's case is arguable. Clearly, in my view, it is. If, as the
(Page 6)
- plaintiff alleges, there has been fraud on the part of the defendants, then the property of the second defendant must be held in trust by the first and third defendants. The court can enforce obligations upon those defendants within the jurisdiction, there being (in the words of Marks J) 'no adjudication touching on the laws of another nation'. On this basis I am not satisfied that the plaintiff's claim ought be struck out. In my view, it is arguable and it ought be allowed to proceed to trial.
11 I would dismiss the defendants' summons. I will hear the parties as to the form of orders and as to costs.
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