Yzerman v Schofield
[2011] WASC 200
•15 AUGUST 2011
YZERMAN -v- SCHOFIELD [2011] WASC 200
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 200 | |
| 15/08/2011 | |||
| Case No: | CIV:1516/2011 | 27 JUNE, 1 JULY 2011 | |
| Coram: | EM HEENAN J | 1/07/11 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Application for revocation of leave to issue and serve proceedings out of jurisdiction refused Order for stay of Western Australian proceedings until further order Liberty to apply | ||
| A | |||
| PDF Version |
| Parties: | JONATHON PAUL YZERMAN JOANNE SCHOFIELD |
Catchwords: | Conflict of laws Leave to issue writ and serve out of jurisdiction Application to revoke or set aside order granting leave to issue writ and serve out of jurisdiction Related proceedings instituted in England Dispute over beneficial ownership of land Forum non conveniens Relationship between remedies Inappropriateness of local forum Registered joint tenancy of land in Western Australia Parties resident in England Action for sale of land in Western Australia under s 126 of Property Law Act Discretionary considerations |
Legislation: | Property Law Act 1969 (WA) |
Case References: | Baumgartner v Baumgartner (1987) 164 CLR 137 Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 20 ACSR 760 Bennet v Bennet (1879) 10 Ch D 474 BP Australia Ltd v Kirki Shipping Corporation & Assurance Foreningen Gard (Unreported, WASC, Library No 940612, 1 November 1994) Calverley v Green (1984) 155 CLR 242 Giacci v Giacci Holdings Pty Ltd [No 2] [2011] WASC 135 Henry v Henry (1996) 185 CLR 571 Muschinski v Dodds (1985) 160 CLR 583 Nullagine Investments Pty Ltd v The Western Australian Club Inc (1993) Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213 Scott & Hanson v Pauly (1917) 24 CLR 274 Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 Sterling Pharmaceuticals Pty Ltd v The Boots Company (Aust) Pty Ltd (1992) 34 FCR 287 Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 The Hagen [1908] P 189 Tyne Improvement Commissioners v Armement Anversois S/A (The Brabo) [1949] AC 326 Vitkovice Horni a Hutni Tezirstvo v Rorner [1951] AC 869 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JOANNE SCHOFIELD
Defendant
- Plaintiff
AND
JOANNE SCHOFIELD
Defendant
Catchwords:
Conflict of laws - Leave to issue writ and serve out of jurisdiction - Application to revoke or set aside order granting leave to issue writ and serve out of jurisdiction - Related proceedings instituted in England - Dispute over beneficial
(Page 2)
ownership of land - Forum non conveniens - Relationship between remedies - Inappropriateness of local forum - Registered joint tenancy of land in Western Australia - Parties resident in England - Action for sale of land in Western Australia under s 126 of Property Law Act - Discretionary considerations
Legislation:
Property Law Act 1969 (WA)
Result:
Application for revocation of leave to issue and serve proceedings out of jurisdiction refused
Order for stay of Western Australian proceedings until further order
Liberty to apply
Category: A
Representation:
CIV 1516 of 2011
Counsel:
Plaintiff : Mr G J Mettam
Defendant : Mr M D Howard SC
Solicitors:
Plaintiff : Butcher Paull & Calder
Defendant : Maxim Litigation Consultants
CIV 1585 of 2011
Counsel:
Plaintiff : Mr G J Mettam
Defendant : Mr M D Howard SC
Solicitors:
Plaintiff : Butcher Paull & Calder
Defendant : Maxim Litigation Consultants
Case(s) referred to in judgment(s):
Baumgartner v Baumgartner (1987) 164 CLR 137
Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 20 ACSR 760
Bennet v Bennet (1879) 10 Ch D 474
BP Australia Ltd v Kirki Shipping Corporation & Assurance Foreningen Gard (Unreported, WASC, Library No 940612, 1 November 1994)
Calverley v Green (1984) 155 CLR 242
Giacci v Giacci Holdings Pty Ltd [No 2] [2011] WASC 135
Henry v Henry (1996) 185 CLR 571
Muschinski v Dodds (1985) 160 CLR 583
Nullagine Investments Pty Ltd v The Western Australian Club Inc (1993)
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213
Scott & Hanson v Pauly (1917) 24 CLR 274
Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Aust) Pty Ltd (1992) 34 FCR 287
Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539
The Hagen [1908] P 189
Tyne Improvement Commissioners v Armement Anversois S/A (The Brabo) [1949] AC 326
Vitkovice Horni a Hutni Tezirstvo v Rorner [1951] AC 869
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
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- EM HEENAN J:
Preliminary
1 On 5 April 2011, acting under RSC O 10 r 1(1)(a), Acting Master Chapman made an order ex parte on an originating motion in CIV 1516 of 2011 that the applicant, Mr Yzerman, have leave to issue a writ, notice of which was to be served out of the jurisdiction upon the intended defendant, Mrs Schofield, in the United Kingdom. Later, on 5 April 2011, Mr Yzerman issued a writ (CIV 1585 of 2011) out of this court directed to Mrs Schofield for service upon her in England. Now two applications have been made by Mrs Schofield concerning these proceedings. The first is an application pursuant to RSC Order 12 r 7, without having entered any appearance conditional or unconditional, to set aside the ex parte order granting leave to issue the proposed writ and to serve notice of it out of this jurisdiction. The second, after I had declined to make such order and adjourned the application for further consideration, is an application for a stay of the action CIV 1585 of 2011 essentially on the grounds of forum non conveniens but, additionally, because of a lack of material disclosure by Mr Yzerman when seeking the ex parte order. After receiving evidence and submissions, I ordered a stay of action CIV 1585 of 2011 until further order. Although short oral reasons were given for those decisions at the time, these are my fuller reasons which I said would soon follow.
2 Jonathon Paul Yzerman and Joanne Schofield are the registered proprietors of an estate in fee simple as joint tenants in the land situated at 3/18 Ommanney Street, Bunbury, in the State of Western Australia, being the whole of the land comprised in Certificate of Title vol 2657 folio 627. There is a small house or unit on the land which is rented to tenants. Rent has been paid regularly and is accruing to local agents for the owners. Both owners are residents of the United Kingdom. Mr Yzerman is Australian by birth but has dual British and Australian nationality and has been living in England for many years. Mrs Schofield appears to have been born in the United Kingdom and to have lived in England for most, if not all, of her life. She is a resident and national of the United Kingdom.
3 In or about October 2007 Mrs Schofield separated from her husband and began a relationship with Mr Yzerman. She was ultimately divorced from her husband in about March of 2008.
4 From some time in 2007, but interspersed with several short separations, the relationship between the two parties continued until it
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- broke down in about August 2010. The parties then separated, with Mr Yzerman moving out of Mrs Schofield's newly-purchased home in Gillingham, Beccles, in Suffolk, where he had been living with her. Since then the parties have remained separated, but there are unresolved issues remaining between them about their mutual financial obligations.
5 During the period of the relationship between Mr Yzerman and Mrs Schofield the decision was taken to purchase a holiday home or investment property in Australia. After inquiries they both agreed on the land and property at 3/18 Ommanney Street, Bunbury, and it was ultimately purchased and registered in their names as joint tenants as described in April 2009. According to Mrs Schofield, and there is documentary evidence in the affidavits filed to support this, she provided the whole of the purchase money of $655,000 and associated expenses by taking out a loan for the sum of $682,716.67 in her own name from Lloyds TSB International in Geneva. Again, the documentary evidence shows that the whole of the latter sum was transferred to a firm of settlement agents in Bunbury in Western Australia from Lloyds Bank in Geneva on 24 April 2009 and was then applied towards the cost of the purchase of the Bunbury property plus stamp duty of $25,127.50 and other miscellaneous costs and disbursements. The constituents of this payment are contained in a settlement statement from the Bunbury agents dated 22 April 2009 annexed to the affidavit evidence filed on behalf of Mrs Schofield.
6 According to the evidence filed on behalf of Mrs Schofield, she had originally intended to purchase the land and have it registered in her sole name but on being informed by Mr Yzerman that he would be entitled to a 'first home buyer's grant' of $14,000 from the Australian government in the event that he were to be named on the title, she agreed that the land should be purchased and registered in joint names for that purpose.
7 No mortgage charge or other encumbrance has been registered over the land at Bunbury, which remains unencumbered. According to the evidence filed on behalf of Mrs Schofield, she has been solely responsible for the payments due under the interest only loan to Lloyds Bank in Geneva and has kept, and is keeping, these payments up-to-date from her own personal resources.
8 Neither of the parties has ever lived in the property at Bunbury which, as already said, has been let through a local agent to tenants. The rental income, after expenses (rates, taxes and necessary outgoings) has, until recently, been remitted by the agent to Mrs Schofield in England.
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- However, in recent times Mr Yzerman has contacted the agent asserting his entitlement to a share in the net rents from the property and has demanded that a moiety of the income be paid to him. In these circumstances, the agent regards herself as constrained to comply with Mr Yzerman's demands and is apparently awaiting advice or further instructions on how to deal with the net income. Through their respective solicitors in England, Mrs Schofield and Mr Yzerman have been corresponding in the hope of reaching a resolution of the disputes which have arisen. From this correspondence it is evident that Mr Yzerman, while conceding that the Bunbury property was purchased from funds borrowed entirely by Mrs Schofield, asserts that it was registered in their joint names because of an agreement between them that Mrs Schofield would do so in recognition of the value of the contributions made by his work, time and effort in repairing, renovating and maintaining a residential property occupied by Mrs Schofield and her children in Norwich, England. The correspondence shows that Mrs Schofield rejected that assertion and by letter from her solicitors dated the 1st day of April 2011 informed Mr Yzerman's solicitors that unless he agreed to transfer his registered interest in the Bunbury property to her without payment she would commence appropriate proceedings in England seeking suitable relief compelling him to do so and, if necessary, on account to settle the financial disputes between them.
9 Mr Yzerman did not comply with this demand and on 6 April 2011 Mrs Schofield commenced proceedings in the Chancery Division of the High Court of Justice in England (claim number HC 11CO1126) against Mr Yzerman. The claim form stated the following brief details:
The Claimant seeks:
(1) A declaration that the property at Unit 3, Ommanney Street, Bunbury, Western Australia, 6230, Australia ('the property') now standing in the names of the Claimant and the Defendant jointly is held by them on trust for the Claimant absolutely.
(2) That the Defendant do execute all documents necessary to vest the legal title of the property in the Claimant.
(3) That the defendant do pay the Claimant's costs.
Such further or other relief as is just.
10 The affidavit evidence in the present proceedings indicates that these English proceedings will come on to deal with an application for
(Page 7)
- judgment in default of appearance or defence some time in September or October 2011.
11 In a subsequent affidavit filed by the Perth solicitor for Mrs Schofield her solicitor reported that she had been informed by Mrs Schofield's English solicitors, Messrs Mills & Reeve, and believed that, no defence having been filed by Mr Yzerman in response to Mrs Schofield's English action, Mrs Schofield's solicitors applied on 9 June 2011 for an application for judgment by default. According to information provided by the English solicitors, Mrs Schofield's Perth solicitor was led to believe that the English default judgment application may be heard and determined some time in September or October 2011 and that, to the date of that affidavit of 17 June 2011, Mr Yzerman had made no response to that application.
History of dispute between parties in England
12 Shortly after the purchase of the Bunbury property Mrs Schofield learned that Mr Yzerman was not entitled to a 'first home owner's grant' because he was not then an Australian resident. In late March 2010 she decided that she wished to discharge the loan from the bank in Geneva and so decided to put the Bunbury property up for sale. According to her, she told Mr Yzerman of this and both engaged real estate agents in the Bunbury area to put the property on the market at a selling price of $690,000. The selling agent's appointment of 18 March 2010 is an annexure to an affidavit filed on behalf of Mrs Schofield and purports to have been signed by both parties. By late May 2010 there had been little interest expressed by any prospective buyer for the Bunbury property and the agent recommended that the asking price should be reduced to $675,000. That was done and the property was left on the market at that asking price.
13 It was in July 2010 that Mrs Schofield purchased a new English residence known as 'The Old Rectory' where Mr Yzerman lived with her and her children for some period until the relationship broke down that August and Mr Yzerman moved out on 21 September 2010. According to Mrs Schofield, some time in late August or early September 2010 Mr Yzerman informed her that he would be prepared to have his name removed from the title to the Australian property and at about the same time Mrs Schofield offered to pay certain of the plaintiff's outstanding debts and expenses. The details are contained in the affidavits but they amount to approximately £10,600 plus a deposit and one month's rent for a rental property for Mr Yzerman at Oxford Road, Ipswich, Suffolk and
(Page 8)
- his removal costs to that new property, and money for the purchase of miscellaneous items of furniture and homewares for him at his new residence.
14 According to the affidavit filed on behalf of Mrs Schofield, consequent upon Mr Yzerman's intimation that he would be prepared to have his name removed from the title to the Bunbury property, she took steps to have the agents in Australia prepare documents to effect that change. A registrable transfer of Mr Yzerman's interest in the property to Mrs Schofield was sent to England for their signatures on about 28 September 2010.
15 According to Mrs Schofield, during the months of September and October 2010 she:
(a) paid off Mr Yzerman's car loan;
(b) paid the deposit and one month's rent for a new rental property for Mr Yzerman's new location in Ipswich;
(c) paid his removal costs;
(d) paid part of his credit card debts; and
(e) purchased numerous items of furniture and homewares for Mr Yzerman for his new residence.
16 Again, according to the affidavit evidence filed on behalf of Mrs Schofield, Mr Yzerman later refused to sign the transfer papers provided by the Australian settlement agent and has refused to have his name removed from the title to the Bunbury property.
17 In mid-October 2010 Mrs Schofield was advised by the selling agents at Bunbury that the asking price for the property should be reduced to $650,000 in the hope of generating interest, and she agreed to this and instructed the agent to reduce the price accordingly.
18 The net proceeds of the rent of the Bunbury property, after payment of expenses including rates and taxes and agent's letting fees, has been paid into a joint bank account held by Mr Yzerman and Mrs Schofield in Australia and, although the account was originally a sole account that Mr Yzerman used for other purposes, the only funds held in the account or paid into it over recent years have been the net rental proceeds from the Bunbury property. From late August or early September 2010, when the relationship ended, Mr Yzerman caused the joint account to be frozen so
(Page 9)
- that, then on, Mrs Schofield has been unable to operate or access the account, although the income from the property is continued to be paid into the account. From November 2010 to January 2011 on all the net income from the Bunbury property was then paid by the agent to Mrs Schofield. In about February of 2011 Mr Yzerman countermanded that arrangement and directed that the agent instead divide the net proceeds of the rent equally between himself and Mrs Schofield and make equal separate payments into bank accounts held by each of them. That has been occurring since about February 2011.
19 According to Mrs Schofield, she told Mr Yzerman in about October 2010 that she would commence legal proceedings in England with regard to the ownership of the Australian property and forwarded a text message to him to that effect shortly after 6 October 2010. From about mid-October 2010 until March 2011, without prejudice and open correspondence has been exchanged between Mr Yzerman's English solicitors and Mrs Schofield's English solicitors.
20 By March 2011 it had become apparent that the dispute between them about the ownership of the Bunbury property was unlikely to be resolved through negotiation and Mrs Schofield thereupon instructed her English solicitors to commence legal action in England in connection with the property and to compel Mr Yzerman to account to her in equity for rental proceeds he had received. In accordance with English pre-action protocol, notice of the intended action was given by Mrs Schofield's English solicitors to Mr Yzerman on 1 April 2011 and, failing a response, proceedings in the High Court of Justice Chancery Division were commenced on 6 April 2011.
21 The proceedings in the Chancery Division of the High Court in England include detailed particulars of the claim in a form and style equivalent to a statement of claim used in courts in this state. The claim form and particulars of claim were served upon Mr Yzerman by post to 17 Oxford Road, Ipswich, Suffolk, being his usual residence, on 6 April 2011.
Pre-litigation communications
22 Mention has already been made of the correspondence between the solicitors for the two parties but closer attention must be given to this aspect of the background lest it be thought that there might be some significance in who was the winner of the 'race to court'.
(Page 10)
23 There is not a complete set of the correspondence available or referred to in the affidavits which have been filed. However, a letter from Mrs Schofield's English solicitors, Mills & Reeve of Norwich, of 1 April 2011 to Mr Yzerman's solicitors at Ipswich refers to an earlier letter from Mr Yzerman's solicitors of 14 February 2011as making reference to a discussion with counsel raising some question over the jurisdiction of courts in England to determine issues concerning the Australian land. That letter from Mrs Schofield's solicitors of 1 April 2011 mentions that the solicitors had heard nothing from Mr Yzerman's Australian lawyer and that their advice from counsel in London was to the effect that English courts did have jurisdiction to determine the beneficial interests in the Australian property. The letter referred to correspondence going back to October 2010 which had occurred with a view to settle the dispute without the need to resort to litigation but, because the negotiations had failed, Mrs Schofield's solicitors had instructions to issue proceedings in England forthwith. They inquired of Mr Yzerman's solicitors whether or not they had authority to accept service on his behalf.
24 The facsimile sent by Mrs Bensley on 1 April 2011 was sent to Mr Yzerman's English solicitors, not to his Perth solicitors. Mrs Schofield's English solicitors sent by fax dated 6 April 2011 a letter to Mr Yzerman's solicitors at Ipswich with copies of the sealed original claim form, particulars of claim, the letter to Mr Yzerman and the response back. They received a reply letter from those solicitors, Saunders Gooding Riddlestone, dated 7 April 2011 advising that that firm no longer acted for Mr Yzerman and that Mrs Schofield's English solicitors should liaise with him direct and also notifying that he had engaged Australian property lawyers.
25 There was then a fax from Mr Yzerman's Perth solicitors to Mrs Schofield's English solicitors dated 8 April 2011 acknowledging recent receipt of the faxed documents concerning the parties and then asking:
Why would you commence proceedings on 8 April 2011 when our client had already commenced proceedings here in the Supreme Court on 5 April 2011?
The Writ and Notice of Writ were emailed to you immediately after filing.
Please explain.
26 Mr Yzerman's solicitors in Perth, Western Australia, Messrs Butcher Paull & Calder, sent a fax or email to a Christine Bensley (later identified
(Page 11)
- as a family law executive at the firm of Mills & Reeve Solicitors having the day-to-day care and control of Mrs Schofield's file at that firm) dated 5 April 2011 acknowledging the fax of 1 April 2011 and advising that proceedings had been commenced in the Supreme Court (of Western Australia) and that:
our client's ex parte application for leave to serve his Writ out of the jurisdiction is listed for hearing this morning at 9.15 am.
28 Solicitors in Perth, Maxim Litigation Consultants, were later instructed to act for Mrs Schofield and they wrote immediately to the Perth solicitors for Mr Yzerman by letter of 14 April 2011, advising that their instructions were limited to consider a possible application to the Supreme Court of Western Australia to set aside the writ or the order granting leave to issue and serve out of this state but that they did not have instructions to accept service of any process on behalf of Mrs Schofield.
29 An answer is in part given by Mr Yzerman by his affidavit sworn on 21 June 2011 in response to the various allegations advanced on behalf of Mrs Schofield. By this affidavit Mr Yzerman deposes that he is a dual Australian/British citizen and that he is a resident in the United Kingdom but plans to return to Australia when he can arrange for his eight-year-old daughter to accompany him. He says that it is not clear when that would happen and that his daughter's mother wishes to come to Australia but will not be eligible to apply until she finds work. He mentions that the address which he gave in Western Australia in the course of the application to the Supreme Court in Perth for leave to issue and serve a writ out of this state was an address in Darlington (a Perth hillside suburb) which is in fact his mother's address. He claims never to have been served with a writ or summons in respect of the legal proceedings issued in the United Kingdom.
(Page 12)
30 In relation to the property at Bunbury, Mr Yzerman said in his affidavit that when he was in Australia in February 2011 he inquired of the agent also handled the rent and proposed sale of the property and believed that she thought it prudent to withdraw the property for sale until he had sorted out various matters such as the sale price with Mrs Schofield as co-owner. He confirmed that the Bunbury property is rented and that the rent had been paid into an account in his name and Mrs Schofield's name. He said that last year (2010) Mrs Schofield, without reference to him or prior agreement, withdrew $20,000 from the account which she used to pay part of his credit card account (around $4,000) and kept the balance of the funds . He denies that he had ever agreed with Mrs Schofield to transfer his share in the Bunbury property to her. He complains that Mrs Schofield changed access to the account for the rent proceeds and says that he no longer has access to bank statements for that account.
31 In relation to the acquisition of the Bunbury property, Mr Yzerman has deposed:
10. The funds for the purchase of the Bunbury property came from Ms Schofield. At the time of purchase Ms Schofield told me and I verily believed that she had funds in a Swiss Bank and that it was cheaper to borrow money rather than use her cash because she received a higher interest rate on the money on deposit.
11. The discussions I had with Ms Schofield leading up to the purchase of the Bunbury property were that I was to receive half the Bunbury property in lieu of making any claim on her property in the United Kingdom known as Nut Tree Farm. I had done extensive renovation work on Nut Tree Farm. I worked on the property full time until we separated.
12. After separation Nut Tree Farm was placed on the market for sale by Ms Schofield.
13. Ms Schofield has now signed a contract to sell Nut Tree Farm but I am not privy to the details.
14. The purchase of the Bunbury property in joint names had nothing to do with the possibility of me getting a first home owners grant. However, there was discussion of a first home owners grant. I left it to Ms Schofield to process the relevant documentation.
15. In respect to negotiations after separation there were negotiations between our respective lawyers in the United Kingdom. The result was that there was no agreement.
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- 16. After negotiations I was advised by my lawyer in the United Kingdom and verily believe that it was necessary to commence proceedings in Western Australia because the land was there. I then came to Western Australia and instructed Butcher Paull & Calder.
17. To the best of my recollection, Ms Schofield never told me that she was commencing legal proceedings.
18. I initially attended on Mr Butcher of Butcher Paull & Calder on 18 February 2011 and instructed him to commence proceedings. I signed an affidavit of 3 March 2011.
The legal proceedings in Western Australia
32 There are two sets of proceedings in this court. The first (CIV 1516 of 2011) was commenced by an originating motion filed in the registry on 28 March 2011 on an ex parte basis. By that motion Mr Yzerman sought leave to issue a writ of summons against Mrs Schofield out of this jurisdiction and sought leave to serve it in England pursuant to The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. It recorded the address of the intended plaintiff, Mr Yzerman, as being 7 Saw Drive, Darlington in the State of Western Australia and proposed service on the defendant Mrs Schofield at The Old Rectory, Rectory Road, Gillingham, Beccles, Suffolk, England, United Kingdom. It was supported by an affidavit of Mr Yzerman, as plaintiff (sworn 3 March 2011) recording his address as being 'of care of 7 Saw Drive, Darlington, in the State of Western Australia'.
33 In this affidavit Mr Yzerman deposed that he was an Australian citizen currently in Western Australia but generally resident in the United Kingdom. He referred to property at Bunbury which he said was purchased while he and Mrs Schofield were on holiday in Australia and said that they had resided in a de facto relationship. His affidavit went on to assert:
13. We discussed on several occasions purchasing a property located in England that would be put into joint names. However we decided to purchase a property in Australia instead.
14. Whilst in England, the defendant said words to the effect that 'half of the property we buy will belong to you and I will retain the property in England' and that 'if you die your daughter will get your half of the property we buy'. I agreed to this.
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- 15. This agreement was maintained and confirmed whilst we were in Australia carrying out the purchase of the Property.
16. The agreement was also subsequently maintained and discussed on our return to England.
17. The property in England was a farmhouse in which the Defendant and I lived and on which I carried out renovations.
18. My claim is for orders to bring about the sale of the Property, pursuant to the Property Law Act 1969 (WA).
…
22. I believe that Western Australia is the most appropriate forum for the dispute because the subject matter of this dispute is within Western Australia.
23. I do not seek any orders in relation to any property located in the United Kingdom.
24. There are no current proceedings in the United Kingdom.
25. Based on the above matters this Court is the appropriate forum for this dispute because the subject matter of the dispute is within Western Australia.
34 The proposed writ of summons for which the motion sought leave to issue and serve out of the jurisdiction included a statement of claim as follows:
STATEMENT OF CLAIM
(1) The Plaintiff and the Defendant are the joint registered proprietors of 3/18 Ommanney Street, Bunbury, in the State of Western Australia being the land comprised On Certificate of Title Volume 2657 Folio 627, ('the Property').
(2) The Plaintiff wishes to realise his interest in the Property.
(3) The parties are unable to agree to the terms of sale or the division of proceeds of sale and neither party wishes to reside in the property.
(4) It is not possible to subdivide the property into two parts.
(5) In the premises, the Plaintiff is entitled to an order for partition of the property.
(6) The plaintiff claims an order for sale of the Property pursuant to section 126 of the Property Law Act 1969 (WA)
(Page 15)
- AND THE PLAINTIFF CLAIMS:
(1) The Property be sold and the Plaintiff be appointed Trustee for the sale of the Property.
(2) The Defendant sign all necessary documentation to complete the sale of the Property and cooperate with the plaintiff in the conduct of the sale.
(3) The Defendant deliver up to the Plaintiff the Certificate of Title to the Property.
(4) If the Defendant fails to cooperate with the Plaintiff in the conduct of the sale of the Property, the Plaintiff be authorised to execute all documents necessary to complete the sale on behalf of the Plaintiff and the Defendant.
(5) The net proceeds of the sale of the Property be distributed as follows:
(a) in payment of the costs of the sale;
(b) the balance be divided equally between the Plaintiff and the Defendant;
(6) The Defendant pay the Plaintiff's costs.
35 The reference to relief under s 126 of the Property Law Act 1969 (WA) is a reference to the power of this court to order the sale of land held jointly or in common and distribution of the net proceeds according to the respective shares of the co-owners rather than ordering a physical partition of the land. The origin and history of this frequently employed power is contained in Nullagine Investments Pty Ltd v The Western Australian Club Inc (1993) 177 CLR 635 where, at 645 - 646 and 650 Brennan J traced the origin of s 126 to the first English Partition Act in 1539 (31 Hen VIII c. 1) and described the purpose of the present and antecedent legislation as follows:
The purpose of such Acts is to provide a statutory mechanism for terminating the co-ownership of land when the co-owners fail themselves to agree on the manner in which the co-ownership shall be terminated.
36 Earlier, at 645 his Honour said:
A tenant in common who is entitled to a half share or upwards and who applies to the Court for relief under a statute in the form of s. 126(1) has a right to either an order for partition or an order for sale: Pitt v Jones (1880) 5 App Cas 651 - (other footnotes omitted). The Court's discretion to order partition rather than sale is confined by the statutory direction that
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- sale is the remedy to be afforded to a co-tenant entitled to a half-share or upwards 'unless [the Court] sees good reason to the contrary: see Pemberton v Barnes (1871) LR 6 Ch App 685, at p 693.
37 In Western Australia, unlike in New South Wales, the statute does not provide for the appointment of a trustee or trustees of the land for sale but rather empowers the court to confer the conduct of the sale upon either of the parties or, if necessary, to a third party and to direct an account of the proceeds before distribution according to the co-owners' respective shares - see my observations about the choice of person for the conduct of any such ensuing sale in Giacci v Giacci Holdings Pty Ltd [No 2] [2011] WASC 135 [16] - [19].
38 Relief by way of an order for sale and distribution of the proceeds, or more rarely partition of the land, between the co-owners, will usually be the inevitable result of an application to the court under s 126 if, in fact, the plaintiff is a legal and beneficial co-owner of the land to the extent of one half share or upwards. If, however, the plaintiff did not hold the beneficial interest in the subject land to the extent of one half share or upwards, or held his share beneficially for the other co-owner, and that were to be raised as a defence to the claim for statutory relief, it is likely that that defence would succeed or, at least, that there would be an order for a stay of the proceedings for relief under s 126 until it was possible to determine, if necessary in other proceedings, whether the plaintiff held a beneficial interest in one half share or upwards of the subject land or not. If he did, then his entitlement to relief under s 126 would have been established but if not, it would be otherwise.
39 Applications for leave to issue and/or serve proceedings out of jurisdiction are governed by RSC O 10 which, so far as is presently relevant, provides:
1. When service out of jurisdiction is permissible
(1) The Court may, subject to rule 3, grant leave to serve a person outside the Commonwealth of Australia with a writ, or notice of a writ, that begins an action if —
(a) the subject matter of the action, so far as it concerns the party to be served, is —
(i) land (with or without rents or profits) or other property situate within the State, or the perpetuation of testimony relating to land within the State; or
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- …
3. Notice of writ
Leave granted under rule 1 or 2 shall be leave for service out of the jurisdiction of notice of the writ and not the writ itself.
41 As earlier stated, Mr Yzerman's originating motion for leave to issue and serve the proposed writ out of the State of Western Australia came on for hearing ex parte before Acting Master Chapman in chambers on 5 April 2011. There being no opposition to the application and the affidavit of Mr Yzerman disclosing matters which, on their face, indicated an entitlement to the relief claimed, the master thereupon made an order in the terms asked. In consequence of the leave then granted Mr Yzerman then issued a writ (CIV 1585 of 2011) on 5 April 2011, and a notice of writ for service out of this jurisdiction on the same date in the terms of the proposed writ and statement of claim in the earlier proceedings in which leave was sought and granted.
42 As already noted, an email communication was sent by Mr Yzerman's Perth solicitors to Mrs Schofield's English solicitors on 5 April 2011 to advise that proceedings had been commenced in the Supreme Court of Western Australia applying for leave to serve the proposed writ out of this jurisdiction: that that application was listed for hearing that morning, and inquiring whether the English solicitors had instructions to accept service. This followed the letter, previously mentioned, from the English solicitors for Mrs Schofield to Mr Yzerman's English solicitors of 1 April 2011 advising that they then had instructions to issue proceedings in England forthwith and asking for a reply not later than noon on 5 April whether or not Mr Yzerman's English solicitors would accept service. Later on 5 April an email was sent by the Perth solicitors for Mr Yzerman to the English solicitors for Mrs Schofield
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- containing copies of the Supreme Court writ of summons and notice of the writ for service out of this jurisdiction which had been filed in the Perth registry of the court that day. That communication was sent at 0856 hours WST or 0056 hours GMT and so was unlikely to be received and considered by the English solicitors until late in the afternoon of 5 April WST.
43 On the limited evidence available it appears that Mr Yzerman's proceedings in Western Australia were commenced a little before Mrs Schofield's proceedings were commenced in London but, taking into account the time differences, by not more than one day at the most. It is not necessary to determine finally that chronology. Nevertheless, it appears that Mrs Schofield's English solicitors had given notice at least a week or more beforehand of their intention to commence proceedings in England and had been in communication with Mr Yzerman's English solicitors over a difference of view about whether or not the English court had jurisdiction to entertain the proposed proceedings. There is no evidence that Mr Yzerman's solicitors either in England or in Western Australia gave notice to Mrs Schofield's solicitors before 5 April 2011 that proceedings were about to be commenced in Western Australia although it is possible that there may have been some email communication to that effect a day or so before then.
Subsequent course of proceedings in Western Australia
44 The next step was for newly appointed solicitors for Mrs Schofield in Western Australia to apply to this court by notice of motion filed 29 April 2011 for the following orders:
(1) That the order made by this Honourable Court on 5 April 2011 for the plaintiff to have leave to cause a writ to issue, notice of which was to be served on the proposed defendant out of the jurisdiction be set aside.
(2) That the order made by this Honourable Court on 5 April 2011 that the plaintiff have leave to serve the proposed defendant with the notice of the writ out of the jurisdiction be discharged.
(3) That the plaintiff pay the proposed defendant's costs of this notice of motion, to be taxed if not agreed.
45 The grounds advanced for the application were:
(1) The plaintiff on his two ex parte applications failed to disclose to this Honourable Court all relevant material.
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- (2) The plaintiff cannot satisfy the Honourable Court that the proceedings in CIV 1585 of 2011 would not subsequently be stayed on the grounds of forum non conveniens; and or
(3) As set out in the affidavit of Penelope Helen Ford sworn 29 April 2011 and filed herewith.
46 That notice of motion, the supporting affidavit and other process were all intitled with both action numbers in this court, namely CIV 1516 of 2011 and CIV 1585 of 2011, although there has been no application or order for the consolidation of those proceedings. No point has been taken about this by any party but the running together of two separate sets of proceedings can cause some confusion unless this omission is noted and corresponding perspectives maintained.
47 The notice of motion was brought without the applicant, Mrs Schofield, entering an appearance or a conditional appearance either in the proceedings in which leave to serve notice of the writ out of the jurisdiction had been granted (CIV 1516 of 2011) or in the new proceedings involving the writ issued in Western Australia pursuant to that leave (CIV 1585 of 2011).
48 It is well accepted that where an ex parte order has been made granting leave to serve a writ or notice of a writ out of this jurisdiction the defendant against whom the writ has been issued may apply to the court to revoke the leave granted, set aside the order, or seek a stay of the proceedings either on the basis that the court does not, in fact, have jurisdiction to entertain the cause and the intended defendant will not consent to the jurisdiction of the court or that, notwithstanding that there may be a basis for jurisdiction, the court should not have granted leave because of the prospect that the proceedings may be stayed on an application based upon the doctrine of forum non conveniens, or because of some agreement between the parties as to the choice or preferment of another jurisdiction for disputes between them or for any other reason - Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. In such cases it is usually, but not always, the course taken by the objecting proposed defendant to enter a conditional appearance on his or her behalf to the intended proceedings, so as to preserve all rights to object to the jurisdiction of the court and thus avoid a step which may constitute a consent to the jurisdiction. Such a conditional appearance is sanctioned by RSC O 12 r 6 which provides:
(1) A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice
- thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this rule.
- (2) The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance.
49 There is, however, an alternative approach sanctioned by RSC O 12 r 7 which provides as follows:
7.Setting aside writ etc. before appearance
A defendant to an action may at any time before entering an appearance therein, serve notice of motion to set aside the writ or service of the writ, or notice of the writ on him or discharging any order giving leave to serve the writ or notice on him out of the jurisdiction.
50 This appears to be based on the former English O 12 r 8 which is discussed and explained in earlier editions of The Supreme Court Practice (the 'White Book'). So, for example, the 1991 edition of the 'White Book' at 12/7-8/1 contains a commentary on the then English rules which adverts to the many traps for the unwary associated with the procedures for conditional appearance or in applying to set aside originating process without entering an appearance before observing that:
International law has come to the view that a defendant should be able to object to the jurisdiction, to apply for a stay pending arbitration and to make other applications not going to the merits without submitting to the jurisdiction or waiving irregularities.
51 The initial application to the court by the Western Australian solicitors for Mrs Schofield relied on RSC O 12 r 7, and was an application to set aside the originating process or the order granting leave to serve notice of it outside this jurisdiction without having entered an appearance either in the newly commenced action or at all.
52 There is only limited authority available upon the application of RSC O 12 r 7 as far as my searches have been able to go. There is one helpful decision of Master Adams in BP Australia Ltd v Kirki Shipping
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- Corporation & Assurance Foreningen Gard (Unreported, WASC, Library No 940612, 1 November 1994) where an application was made to set aside an ex parte order for the service of originating process outside the jurisdiction when the applicant relied upon O 12 r 7 without entering an appearance. That application was successful - essentially upon the basis that the papers before the judge when the ex parte order had been granted did not establish, by affidavit, a jurisdictional basis for granting the order. In the course of his reasons for decision the learned master observed:
Where the order [the ex parte order granting leave to serve outside the jurisdiction] is challenged, the authorities indicate that a plaintiff must be prepared to defend his choice of jurisdictional bases. See Goldberg v Western Continental Corporation Ltd (Unreported, FCt SCt of WA, Library No 8644, 18 December 1990) and Koranna Nominees Pty Ltd v Roberts (Unreported; FCt SCt of WA, Library No 4289; 15 October 1981) where in the latter decision Burt CJ, at p 5 said this:
'In my opinion, on an application by a defendant served with a writ out of the jurisdiction pursuant to O 10 r 1 [as O 12 was then numbered], to set the service aside, (O 12 r 6(1)) the plaintiff is required to sustain the service on the ground or grounds relied upon by him in the affidavit upon which the order was made and he cannot at that stage sustain the service upon some other ground.'
Under this rule the court may on application made before appearance set aside originating process or its service, or set aside an order of the kind mentioned above, or stay a proceeding. Application without appearance has the advantage that if the application fails, that the defendant can fairly argue that he has done nothing that could be taken to constitute a submission on his part to the jurisdiction of the court. This may be important if the defendant does not desire to defend the claim on the merits but wants instead to prevent a plaintiff from enforcing a default judgment against his assets in a foreign country on the basis that the judgment should not be recognised in that country. For a reference to this principle, see Re Siromath Pty Ltd [No 3] (1991) 25 NSWLR 25; Pendal Nominees Pty Ltd v M & A Investments Pty Ltd (1989) 18 NSWLR 383, 387 - 8. The courts of the foreign country might allow the judgment to be enforced if the defendant had submitted to the jurisdiction of the Supreme Court (of Victoria). In the case of application following conditional appearance filed under [sic] 12.6 the appearance has effect as an unconditional appearance unless the court otherwise orders.
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54 In the present case because the subject matter of the action commenced by leave in Western Australia concerns land situated in this State, it is an action which directly affects the land and the entitlement of each of the parties to a legal interest in the real property. Accordingly, there is in issue a right or interest in that property - see Bell Group Ltd (in liq) v Westpac Banking Corporation (1996) 20 ACSR 760 per Nicholson J. Therefore, the claim is squarely within the jurisdiction of this court and, in a suitable case, a matter fit for the grant of leave to issue the writ and serve it, or notice of it, outside the jurisdiction. Nevertheless, the existence of jurisdiction because of the location of the subject matter does not, without more, finally dispose of the question of whether or not leave should be granted to issue process for service out of this jurisdiction or for notice of the process to be served out of this jurisdiction. It is still necessary for the court to decide whether, in the particular case, that jurisdiction should be exercised: Voth v Manildra Flour Mills Pty Ltd, 565 and Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539, 551F - 553A.
55 In addressing that issue it is necessary for the court to take into consideration the question of whether or not it is likely that if leave were granted for the originating process to issue or to be served outside this jurisdiction the proceedings may nevertheless later be stayed because of considerations of forum non conveniens: Voth v Manildra Flour Mills Pty Ltd; Sterling Pharmaceuticals Pty Ltd v The Boots Company (Aust) Pty Ltd (1992) 34 FCR 287, 294; and Henry v Henry (1996) 185 CLR 571, 590. This means that, at least in Australia where different principles apply than in English courts, for an application to stay proceedings on the grounds of forum non conveniens it is not possible to accept fully the proposition that on an application for leave to serve outside the jurisdiction an intending plaintiff need only show that there is a serious question to be tried and that the qualifying conditions are satisfied in accordance with the English rule: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438, 446, 457 and 458. This is because in Voth Mason CJ, Deane, Dawson and Gaudron JJ held that applications to set aside service on inappropriate forum grounds, as well as applications for leave to serve process outside the jurisdiction, must be governed by the same principles that apply to applications for a stay on inappropriate forum grounds.
56 In Voth the High Court, following its earlier decision in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 adopted the 'clearly inappropriate forum' test rather than the 'clearly more appropriate forum test' to determine whether or not proceedings in a local
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- forum should be stayed on a basis of forum non conveniens. In doing so, the court declined to follow the approach in England adopted by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 although it observed that, in the application of the clearly inappropriate forum test, the discussion by Lord Goff in Spiliada at 477 - 478 and 482 - 484 of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance. Mason CJ, Brennan, Deane, Dawson and Gaudron JJ held that a defendant will ordinarily be entitled to an order for a stay or the dismissal of an action if he persuades the local court that, having regard to the circumstances of the particular case and the availability of a foreign tribunal to whose jurisdiction the defendant is amenable and which would entertain the matter, it is a clearly inappropriate forum for the determination of the dispute. The question whether the local court is a clearly inappropriate forum requires attention to be directed to the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum.
57 The notice of motion by Mrs Schofield, without appearance, to set aside the order granted by the master ex parte for leave to issue the originating process and to serve notice of it in England came on for hearing as an urgent application on 27 June 2011. By her counsel, Mrs Schofield submitted at that the hearing of the ex parte application before the Acting Master on 5 April 2011 by his counsel or solicitors, Mr Yzerman had failed to disclose material facts, namely:
• that there was a known dispute between the parties about whether he had any interest in the Bunbury property and the respective parties' English solicitors had been corresponding in England for some time previously concerning that dispute;
• that he was permanently resident in England and not at Saw Drive, Darlington, Western Australia, then his mother's address;
• that the purchase moneys for the Bunbury property were provided in full by Mrs Schofield from the loan which she obtained solely on her own account from the bank in Switzerland;
• that, at least as Mrs Schofield alleged, he had previously agreed in England to have his name removed from the title to the property;
• that in February 2011, acting on his own account, he had instructed the selling agent to withdraw it from the market.
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58 The submission on behalf of Mrs Schofield was that where such a plaintiff fails to make full and fair disclosure to the court of relevant matters, that may lead to the ex parte orders being set aside: The Hagen [1908] P 189, 201; Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213 [24] - [36]. The obligation to make the fullest disclosure of all relevant facts on such an application has been long established: Tyne Improvement Commissioners v Armement Anversois S/A (The Brabo) [1949] AC 326, 350. These include facts which are relevant to the exercise of the court's discretion: Vitkovice Horni a Hutni Tezirstvo v Rorner [1951] AC 869, 882.
59 I have concluded that, in the present circumstances, the plaintiff should have disclosed that he was not ordinarily a resident in Western Australia and that the address in Darlington was not his own address but, at the most, temporary accommodation. He should have disclosed that his claim to ownership of a half interest in the land was disputed by the intended defendant and that the dispute had been the subject of correspondence between the parties' respective solicitors in England for quite some time, culminating in a recent intimation by Mrs Schofield's English solicitors of an intention to commence proceedings concerning her claim to the sole beneficial ownership of the land in England. I also consider that Mr Yzerman should have disclosed that the whole of the purchase price of the land had been provided from the loan obtained by Mrs Schofield personally and that she alone had been discharging the interest liabilities under that loan.
60 Those are all factors which were relevant to the exercise of the discretion whether or not to exercise jurisdiction over a cause which required service of the originating process or notice of that process outside this jurisdiction notwithstanding that the subject matter was land within this State.
61 However, because I took the view that the subject matter was within the jurisdiction of the court and that the question for decision was whether or not the court should, in the particular circumstances of this case given the 'connections' of the parties with this State, decide to grant leave for service outside this jurisdiction and so exercise its discretion to adjudicate upon the matter, this was an occasion on which there was not a basis for a conditional appearance nor for an application under O 12 r 7 without an appearance. The application by Mrs Schofield is an example of engaging the jurisdiction of this court in order to refuse to confirm the previous ex parte order granting leave to issue the proceedings and to serve notice of them in England essentially on forum non conveniens grounds. For
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- that reason, I adjourned the hearing of the application in order for Mrs Schofield, if she so decided after advice, to enter an appearance and to apply for an order staying the proceedings.
62 That was later done. By a chamber summons filed on 1 July Mrs Schofield sought orders dispensing with the need for any affidavit in support of the application, dispensing with the requirements for service and prior conferral, and orders that:
• the action be stayed pending resolution of Mrs Schofield's action in the High Court of Chancery in England numbered HC 11CO1126 or until further order;
• the parties have liberty to apply on one week's notice;
• the costs be reserved
63 I considered that this should be determined on the basis of the clearly inappropriate forum test as expounded in Oceanic Sun Lineand Voth. In applying those principles it is significant that both parties are usually resident in England and that neither has lived in, nor made any claim for possession of, the subject property. There is no suggestion that the safety of the subject property is in jeopardy or that it could not continue to be successfully let under the supervision of a local agent at Bunbury and the net proceeds of the rents duly accounted for. It is evident from the affidavit evidence that Mrs Schofield desires to assert that she is entitled to the entire beneficial interest in the land because of the source of moneys used for its acquisition and that there may need to be an accounting as between her and Mr Yzerman for net rents received from the property over the years. Whether, if the facts which she asserts were to be established, she would be entitled to the whole of the beneficial interest in the property is a matter which would need to be decided after hearing the evidence and upon established principles: Calverley v Green (1984) 155 CLR 242. It seems unlikely that there would be any presumption of advancement of any part of the proceeds of that loan to Mr Yzerman - Bennet v Bennet (1879) 10 Ch D 474 and Scott & Hanson v Pauly (1917) 24 CLR 274, 282. In the absence of an agreement between the parties as to how the entire legal and beneficial interest of the parties in the property was to be held, the established rule is that the beneficial interest should be held by the contributors in proportion to their contributions to the purchase price: Calverley v Green; Muschinski v Dodds (1985) 160 CLR 583; and Baumgartner v Baumgartner (1987) 164 CLR 137.
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64 Even if it were decided that the parties held the property legally and beneficially as joint tenants, it may still be the case, if indeed she did provide the whole of the purchase price, that Mrs Schofield could be entitled to an equitable charge over the property to the extent of her contributions to the costs of its acquisition so that only the surplus above that price, if any, would be divisible between the two.
65 Those are all issues which would only be possible to decide after a trial, or other determination, of the terms of the agreement between the two contending parties and of the nature and value of their respective contributions towards its acquisition. According to Mrs Schofield, the agreement to acquire the property was reached between the parties in England but I note that Mr Yzerman asserts that the decision was taken by them on a holiday in Australia. Be that as it may, the parties to the agreement are now, and are likely to continue to be, resident in England. Their mutual financial relationships and the source of the money for the loan and division of the proceeds of the rental are likely to be far more readily accessible in the United Kingdom than in Australia. If the issues which the evidence discloses require to be determined, it will probably be necessary for both parties to give evidence and to adduce evidence of their financial resources and the arrangements which existed between them when they were living together in England and, in Mr Yzerman's case, the nature, value and the reason for the work and renovations which he alleges he undertook on Mrs Schofield's former property in England.
66 As said by the majority in Voth, the clearly inappropriate forum test recognises that in some situations the continuation of an action in the selected forum, though not amounting to vexation or oppression or an abuse of process in the strict sense, will amount to an injustice to the defendant when the bringing of the action in some other available and competent forum will not occasion an injustice to the plaintiff.
67 In the present instance, both parties have a real connection with the jurisdiction of the English court being residents in that country and, as I have explained, most if not all of the evidence of the events leading to the decision to acquire the Bunbury property and the existence and nature of any agreement between them as to how and why it was acquired can more conveniently be found in the United Kingdom. Clearly, the English court has the jurisdiction and competence to determine the question of the beneficial ownership to the subject land. To my mind, it would, in the appropriate sense, be oppressive or vexatious to require Mrs Schofield, and for that matter Mr Yzerman, to continue to instruct solicitors in Australia and to come to Australia for any trial of the action, when it may
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- be determined in the courts of the country where they are usually resident. Accordingly, on the application by Mrs Schofield, and on 1 July, I made the orders which she sought including orders that action number CIV 1585 of 2011 in this court be stayed pending resolution of Mrs Schofield's action in the High Court of Chancery in England (matter number HC 11CO1126) or until further order, and that each party had liberty to apply on one week's notice.
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