de la Sala v de la Sala (No 2)

Parties: Maria-Christina Perez de la Sala (Applicant)
Felicite Terrill Perez de la Sala (First Respondent)
Elsbeth Turner in her capacity as Executrix of the Estate of Ernest Ferdinand Perez de la Sala (Second Respondent)
James Morgan Copinger-Symes (Third Respondent)
Maria-Teresa Perez de la Sala (Fourth Respondent)
Edward Robert Perez de la Sala (Fifth Respondent)
Maria-Isabel Harry (Sixth Respondent)

Representation: Counsel:
R Wilson SC and S Hill (Plaintiff)
J Hewitt SC (Second Respondent)
Solicitors:
L Rundle & Co (Plaintiff)
K&L Gates (Second Respondent)

File Number(s): 2023/214349

Publication restriction: Nil

JUDGMENT

1. On 23 July 2025 I made orders ex parte granting interim anti-suit and anti anti-suit injunctions against the respondents to the plaintiff’s amended notice of motion dated 22 July 2025 (plaintiff’s motion): see Maria-Christina Perez de la Sala v Felicite Terrill Perez de la Sala [2025] NSWSC 835. For convenience, I will use the same defined terms as in that judgment. When the matter came back before the Court on 30 July 2025 in accordance with those orders, the first and third to sixth respondents gave undertakings to the Court to effectively maintain the status quo before final hearing of the plaintiff’s motion, and the interim injunctions previously against those respondents (who are defendants in these proceedings) lapsed.

2. The second respondent to the plaintiff’s motion, Ms Elsbeth Turner in her capacity as executrix of the estate of Ernest Ferdinand Perez de la Sala (Ms Turner), did not take that course because she has not submitted to the jurisdiction of this Court in these proceedings. Instead, she moved on prayer 2 of her notice of motion filed on 29 July 2025 (second respondent’s motion) seeking an order pursuant to r 12.11(1)(b) and (i) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) setting aside the purported service of the plaintiff’s motion on her by email to the lawyers at K&L Gates who act for her. In moving on her motion, senior counsel for Ms Turner made clear that in doing so she does not submit to the jurisdiction of this Court.

3. The background to the second respondent’s motion can be briefly stated. The plaintiff’s statement of claim in these proceedings filed on 16 October 2023 joined Ernest Perez de la Sala (Ernest) as the second defendant. Ernest died in Singapore on 13 December 2023. Ms Turner is the sole executrix of Ernest’s estate. On 7 February 2024 Ms Turner, who is a resident of Canada, was granted probate of Ernest’s will by the Family Justice Courts of Singapore. All of the assets in Ernest’s estate are located in Singapore. Following Ernest’s death, no steps were taken by the plaintiff to join Ms Turner to the proceedings until the filing of the plaintiff’s motion. The reason for this was the granting of an interim anti-suit injunction by the High Court of Singapore to Ms Turner on 22 February 2024 restraining the plaintiff from prosecuting or maintaining the equity claim in these proceedings. That injunction was dissolved on 5 June 2025.

4. Ms Turner has previously challenged the jurisdiction of this Court over her in these proceedings by a notice of motion filed on 22 January 2025 (again made without submitting to the jurisdiction of this Court) seeking an order pursuant to UCPR r 12.11(1)(g) declaring that the Court has no jurisdiction over her with respect to the subject matter of the proceedings or, in the alternative, an order pursuant to UCPR r 12.11(1)(h) declining to exercise jurisdiction over her in the proceedings, as well as consequential relief. The earlier motion was heard on 9 May 2025 before Slattery J and judgment is reserved.

5. I note that the question of the appropriate way to serve Ms Turner and the question of the Court’s jurisdiction over her were not addressed when the interim orders were made on 23 July 2025, and the plaintiff proceeded on the basis that leave to serve the plaintiff’s motion on Ms Turner was not required.

6. In support of the order sought in prayer 2 of the second respondent’s motion, senior counsel for Ms Turner submitted as follows:

7. Upon Ernest’s death, the current proceedings in this Court against the second defendant were no longer maintainable by the plaintiff. After death, a deceased person does not continue to possess any legal personality that allows them to be sued: M Davies et al, Nygh’s Conflict of Laws in Australia (LexisNexis, 10th ed, 2020) (Nygh) at [37.5]. Nor does Australian law recognise the estate of a dead person as having some form of existence enabling it to be sued: MAM Mortgages Ltd (in liq*) v Cameron Bros (a firm)* [2002] QCA 330 at [42].

8. UCPR r 6.30 provides that proceedings do not abate as a result of a party’s death and contemplates orders for the re-arrangement of the parties. However, a NSW court will not recognise the right of any person to represent the interests of the deceased unless such person has obtained a grant of representation within NSW, since the authority of the legal personal representative of a deceased person is confined to the jurisdiction of the court that granted probate: Nygh at [37.5].

9. In the present case, Ms Turner, a resident of a foreign jurisdiction (Canada), was granted probate of Ernest’s will by the courts of a foreign jurisdiction (Singapore). Insofar as the Supreme Court of NSW is concerned, Ms Turner is a foreign personal representative who has not obtained a grant of representation of Ernest's estate in NSW. As such, Ms Turner cannot be sued in that capacity in the Supreme Court of NSW: Nygh at [37.6]. A grant of probate is territorial and local so that a court (such as the Supreme Court of NSW) will not assume jurisdiction in relation to an action against a foreign personal representative whose liability to suit derives from foreign law: see Nagel v Hough (1927) 27 SR NSW 418 at 423; Electronic Industries Imports Pty Ltd v Public Curator (Qld) [1960] VR 10; Boyd v Leslie [1964] VR 728; Commissioner of Succession Duty v Hargrave [1972] 3 SASR 118 at 125; see also L Collins et al, Dicey, Morris and Collins on The Conflict of Laws (Sweet & Maxwell, 16th ed, 2022) at [27R-041]-[27-042]. Furthermore, notwithstanding those hurdles, all of the assets in Ernest’s estate are located in Singapore, and outside of the reach of this jurisdiction.

10. It is not an answer that Ernest, or for that matter Ms Turner, was validly served in Singapore. The issue is not one as to the validity of service, but rather the jurisdiction of the court to entertain the suit: Electronic Industries at 11; Boyd at 729.

11. In response, senior counsel for the plaintiff submitted that the above principles are not germane to the present dispute because they are merely seeking an injunction to restrain Ms Turner as a natural person from doing a thing (namely, seeking an anti-suit injunction in Singapore to stop the plaintiffs from pursuing the equity claim in NSW), rather than instituting a suit against her in her capacity as the executrix of Ernest’s estate. It was submitted that this Court has jurisdiction to join Ms Turner as a defendant under UCPR r 7.10 and/or 7.11 because she is amenable to service outside of Australia on a number of grounds provided for under the ‘long arm’ provisions in r 11.4 and Schedule 6 of the UCPR: Weinstock v Sarnat [2005] NSWSC 744 at [14] per White J. Those grounds are: (1) under para (d)(i) of Schedule 6, because in Singapore proceedings 237/2025 Ms Turner is seeking to restrain the plaintiff from progressing these proceedings by way of an anti-suit injunction; (2) under para (h) of Schedule 6, because Ernest’s estate is a necessary party to these proceedings; and (3) under para (n) of Schedule 6, because the application for an anti anti-suit injunction and an anti-suit injunction is based upon a cause of action arising in Australia.

12. The plaintiff’s submission gives rise to the issue of whether the jurisdictional problem raised by Ms Turner is overcome by service under the ‘long arm’ provisions in UCPR r 11.4 and Schedule 6. There is an argument that personal jurisdiction is itself attained by reason of service properly having been effected under the ‘long arm’ provisions. In John Pfeiffer v Rogerson (2000) 203 CLR 503; [2000] HCA 36, the majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at [25]: ‘A court has jurisdiction in a civil action either because the plaintiff has served the originating process on the defendant while within its territorial jurisdiction or because applicable “long arm” provisions have been invoked.’ (emphasis added; see also eg Timbercorp Finance Pty Ltd (in liq*) v Allan* [2016] VSC 481; (2016) 312 FLR 259 at [34]-[36]).

13. This issue was not explored in any detail by the parties in their submissions on the present application and I do not need to determine it. This is because UCPR r 11.4 is limited to the service of ‘originating process’, which is defined in s 3 of the Civil Procedure Act 2005 (NSW) to mean ‘the process by which proceedings are commenced, and includes the process by which a cross-claim is made’. The plaintiff’s motion identifies Ms Turner as second respondent in her capacity as executrix of Ernest’s estate and seeks to join her in that capacity as a defendant to the proceedings, as well as seeking the anti-suit and anti anti-suit injunctions against her in that capacity. It is not an originating process and consequently r 11.4 and Schedule 6 are not engaged: Nature’s Care Holdings Pty Ltd v Chen (No 3) [2024] NSWSC 245 at [16].

14. It follows that service of the plaintiff’s motion on Ms Turner could only occur with leave of the Court pursuant to UCPR r 11.8AB, given r 11.5 (like r 11.4) also applies only to originating processes: Nature’s Care at [38]. Rule 11.8AB provides that “Any document other than an originating process may be served outside Australia with the leave of the court, which may be given with any directions that the court thinks fit”. The plaintiff did not seek leave to serve the plaintiff’s motion on Ms Turner under r 11.8AB or at all, and no leave was granted. No leave was sought when the matter came back to the Court yesterday. For these reasons, in my view, even if the plaintiff’s submission as to the effect of the ‘long arm’ provisions of Schedule 6 is correct, this Court has not assumed jurisdiction over Ms Turner, and therefore the interim injunctions made against her ex parte should be discharged.

15. I will make an order under r 12.11(1)(i) of the UCPR setting aside the purported service of the plaintiff’s motion on Ms Turner. I will also order that the plaintiff should pay the second respondent’s costs of her motion.

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