Singh v Singh [No 2]

Case [2010] WASC 12


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SINGH -v- SINGH [No 2] [2010] WASC 12

CORAM:   MURPHY J

HEARD:   25 JANUARY 2010

DELIVERED          :   27 JANUARY 2010

FILE NO/S:   CIV 1677 of 2004

BETWEEN:   SARDUL SINGH

Plaintiff

AND

MAN MAHAN SINGH
Defendant

Catchwords:

Equitable interest claimed in foreign property - Interlocutory injunction - Jurisdiction to grant injunction concerning foreign property - Concurrent caveat - In personam relief - Person within jurisdiction

Legislation:

Property Law Act 1969 (WA), s 89
Rules of the Supreme Court 1971 (WA), O 52A

Result:

Limited interlocutory injunction granted, on terms

Category:    B

Representation:

Counsel:

Plaintiff:     Mr E Carlose

Defendant:     In person

Solicitors:

Plaintiff:     Eapon Carlose

Defendant:     In person

Case(s) referred to in judgment(s):

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199

Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57

CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345

J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57; (1971) 125 CLR 546

National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209

Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331

Re Clunies‑Ross; Ex parte Totterdell (1987) 72 ALR 241

Singh v Singh [2006] WASC 182

Singh v Singh [2009] WASCA 53; (2009) 253 ALR 575

Walsh v Alexander [1913] HCA 24; (1913) 16 CLR 293

Webb v Webb [1991] 1 WLR 1410

Webb v Webb [1994] QB 696

  1. MURPHY J:  The plaintiff applied on 25 January 2010 for an interlocutory injunction to restrain the defendant until final determination of these proceedings, or further order, from selling, encumbering or otherwise disposing of certain property in Malaysia of which the defendant became the registered proprietor in 1991 and remains so (the property).  The plaintiff and defendant are brothers.  They both live in Australia.

  2. The defendant appeared on this application in person.  He relied on an affidavit sworn by him on 22 January 2010.  I granted an injunction on 25 January 2010.  These are my reasons. 

  3. The plaintiff's claim for final relief in these proceedings is, relevantly, a claim for a declaration that the property is held on trust for the plaintiff, and an injunction requiring the defendant to do all things and execute all documents necessary to cause the property to be conveyed to the plaintiff absolutely.  Although the property is in Malaysia, the plaintiff seeks in personam relief, and does not seek remedies in rem:  Singh v Singh [2009] WASCA 53; (2009) 253 ALR 575, 583, 594 (Singh v Singh [2009]); Re Clunies‑Ross; Ex parte Totterdell (1987) 72 ALR 241, 246; Webb v Webb [1991] 1 WLR 1410, 1418 ‑ 1419, and on appeal Webb v Webb [1994] QB 696, 716 ‑ 717.

  4. The plaintiff's claim for final relief is principally based on a deed of declaration…

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Singh v Singh [No 2] [2010] WASC 12
Case
[2010] WASC 12
Decision Date

CaseChat Overview and Summary

In Singh v Singh [No 2], the Federal Court was asked to determine whether it had jurisdiction to grant an interlocutory injunction concerning property located in Malaysia. The plaintiff sought to enforce an equitable interest in the property, which he claimed was held on trust for him by the defendant. The plaintiff had lodged a caveat over the property in Malaysia in 2001, and the defendant had since transferred the property to his wife and daughter. The plaintiff argued that the transfer was invalid and sought an interlocutory injunction to prevent the defendant from dealing with the property.

The primary legal issue before the court was whether it had jurisdiction to grant an interlocutory injunction concerning property located outside Australia. The court also had to consider whether the plaintiff had established a sufficient basis to warrant the grant of an interlocutory injunction. The court had to determine whether the plaintiff's claim had a reasonable prospect of success and whether the balance of convenience favoured the grant of an interlocutory injunction. The court also had to consider the effect of a concurrent caveat lodged by the defendant over the same property.

The court found that it had jurisdiction to grant an interlocutory injunction concerning the Malaysian property, as the defendant was a person within the court's jurisdiction, having been involved in proceedings before the court. The court also found that the plaintiff had established a reasonable prospect of success on his claim, as the plaintiff had demonstrated that the transfer of the property to the defendant's wife and daughter was invalid. The court considered that the balance of convenience favoured the grant of an interlocutory injunction, as the plaintiff's equitable interest in the property was likely to be defeated if the injunction was not granted. The court also noted that the concurrent caveat lodged by the defendant did not affect the court's jurisdiction to grant an interlocutory injunction.

The court granted an interlocutory injunction, restraining the defendant and his wife and daughter from dealing with the Malaysian property. The court also ordered that the defendant provide the plaintiff with a copy of the alleged trust deed, and directed that the defendant's costs of the application be paid by the plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In 2001, the plaintiff lodged a caveat over the property. I infer from the evidence that Malaysia has a system of registration similar to Torrens title in Australia. There was no submission or evidence to the effect that Malaysian law relating to caveats or registration of interests is any different from Australian law, and I assume, for the purpose of this application, that there is no difference: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 [16], [45], [116], [125]. In 2002, the plaintiff commenced proceedings against the defendant in the District Court of Western Australia, action CIV 5 of 2002. The nature of the claim made in that action is not apparent, although there is no suggestion that the claim is somehow related to the property. On 6 February 2002, the plaintiff's Malaysian solicitors wrote to the defendant, alleging that the defendant held the property on trust pursuant to the Trust Deed, and demanding that the defendant transfer the property to the plaintiff. On 8 April 2002, the defendant responded. He said that he was the absolute owner of the property and that the property was not held on trust for the plaintiff. He also asked to be provided with a copy of the alleged Trust Deed. In September 2003, the defendant transferred another property, of which he was the registered proprietor in Malaysia, described in the papers as the 'No 2' property, to his wife and daughter. The defendant's wife is the sister of Mr Jaspal Singh (the brother‑in‑law). There is a dispute about the purpose for which the defendant transferred the No 2 property. The plaintiff has annexed to his affidavit an extract of a transcript of evidence given by the defendant in the Federal Court on 5 December 2006 in relation to his bankruptcy. The effect of the evidence is that the No 2 property was transferred by the defendant to his wife and his daughter pursuant to a direction by the brother‑in‑law, in satisfaction of a debt owed to the brother‑in‑law. The alleged debt owed to the brother‑in‑law is said to be the subject of an instrument between the defendant and the brother‑in‑law, ex facie dated 14 July 1999, described as a 'trust deed' in which the debt is recorded, and by which the defendant agreed to hold both the No 2 property, and the property the subject of these proceedings, on trust for the brother‑in‑law (the 1999 instrument). In the 'defendant's affidavit in reply' in the Malaysian Court (referred to in [20] below), the defendant deposed that the 1999 instrument was '[s]ecurity for' the money he borrowed from the brother‑in‑law. The plaintiff's affidavit also contains a transcript of evidence given by the defendant to Simmonds J on 15 June 2006 to the effect that the defendant understood that the 1999 instrument acted as a charge on the two properties and that once the debt was repaid, the brother‑in‑law would cease to have any beneficial interest in them. The defendant's testimony in the Federal Court indicates that the brother‑in‑law has, in effect, been repaid the debt by the transfer of the No 2 property, and that nothing further is owed to the brother‑in‑law, although in this court on 15 June 2006, his evidence before Simmonds J was that an amount was still owed.