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Weinstock v Sarnat

Weinstock v Sarnat

Case [2005] NSWSC 744 27 July 2005

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CITATION:
Weinstock v Sarnat [2005] NSWSC 744
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19/11/04, 23/12/04, subsequent written submissions.

JUDGMENT DATE :

27 July 2005

JUDGMENT OF:
White J

DECISION:
1. Grant leave to the plaintiff to proceed against the defendant; 2. Dismiss the defendant's notice of motion filed on 23 December 2004, with costs; 3. Grant leave to the plaintiff to file an amended summons which includes paragraph 1A of the amended summons dated 26 November 2004, on condition that Mrs Tamar Beck is added as a third defendant; 4. Costs of balance of proceedings before me ot be plaintiff's costs in the proceedings.

CATCHWORDS:
PRACTICE AND PROCEDURE - Continuation of anti-suit injunction - Application to set aside service for lack of jurisdiction - Whether plaintiff seeks relief which might be granted in proceedings for the administration of an estate of a person domiciled in NSW - Asset in issue is a bank account in the name of the deceased - Injunction restraining defendant from continuing foreign proceedings seeking entitlement to bank account - Plaintiff executor contends that bank account is beneficially owned by third party - Defendant later commenced proceedings in the forum under Family Provision Act - Supreme Court Rules Pt 10 r 1A(p) - Held that court had jurisdiction at the time service was ordered - Injunction is necessary to protect the administration of the estate - Injunction continued.

LEGISLATION CITED:
Supreme Court Rules 1970 (NSW)
Family Provision Act 1982 (NSW)
Wills, Probate and Administration Act 1898 (NSW)

CASES CITED:
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
In re Liddells's Settlement Trusts [1936] Ch 365
Re Siromath Pty Ltd (No. 3) (1991) 25 NSWLR 25
Jabbour v Custodian of Absentee Property of State of Israel [1954] 1 All ER 145
Re Fitzpatrick [1952] Ch 86
Nygh & Davies, Conflict of Laws in Australia, 7 ed
Dicey & Morris, Conflict of Laws, 13 ed
Whyte v Rose (1843) 3 QB 493
Currie v Bircham (1822) 1 Dowl & Ry 35
Ewing v Orr-Ewing (1883) 9 App Cas 34
McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623
Stirling-Maxwell v Cartwright (1879) 11 Ch D 522
Hope v Carnegie (1866) LR1ChApp 320
Bunbury v Bunbury (1839) 1 Beav 318; 48 ER 963
Permanent Trustee Co (Canberra)) Ltd v Finlayson (1968) 122 CLR 338
Heilmann v Falkenstein (1917) 33 TLR 383
Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730
Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892

PARTIES:
Amiram Weinstock
v
Ronnie Sarnat

FILE NUMBER(S):
SC 4632/04

COUNSEL:
Plaintiff: Dr A Bell
Defendant: G McVay

SOLICITORS:
Plaintiff: Milne Berry & Berger
Defendant: Diana Perla & Associates

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 27 July 2005

4632/04 Amiram Weinstock v Ronnie Sarnat

JUDGMENT

1 HIS HONOUR:…

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 Weinstock v Sarnat

Details

AGLC: Weinstock v Sarnat [2005] NSWSC 744
Case: [2005] NSWSC 744
Decision Date: 27 July 2005

CaseChat Overview and Summary

The case of Weinstock v Sarnat involved a dispute between the executor of an estate, Weinstock, and Sarnat, the latter seeking entitlement to a bank account held in the name of the deceased. The dispute came before the court for a decision on whether an anti-suit injunction, restraining the defendant from continuing with foreign proceedings, could be set aside due to a lack of jurisdiction. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff was seeking relief that might be granted in proceedings for the administration of an estate of a person domiciled in New South Wales. Specifically, the court needed to determine if the bank account in question was an asset of the estate. The plaintiff argued that the bank account was beneficially owned by a third party, and the injunction was necessary to protect the administration of the estate. The defendant, on the other hand, contended that the application to set aside service for lack of jurisdiction should be upheld.

The court found that it had jurisdiction at the time service was ordered, as the asset in issue was indeed a bank account in the name of the deceased. The court also determined that the injunction was necessary to protect the administration of the estate. The plaintiff's contention that the bank account was beneficially owned by a third party was considered relevant to the proceedings for the administration of the estate. Consequently, the application to set aside service for lack of jurisdiction was dismissed, and the injunction was continued.

The court's final order was to continue the injunction restraining the defendant from continuing with foreign proceedings seeking entitlement to the bank account. The court held that it had jurisdiction over the matter and that the injunction was necessary to protect the administration of the estate.

Orders