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[2025] NSWSC 1018
Supreme Court of NSW
2025-09-08
Slattery J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Perez de La Sala v Perez de La Sala [2025] NSWSC 1018
Hearing dates: 09 May 2025
Date of orders: 08 September 2025
Decision date: 08 September 2025
Jurisdiction: Equity
Before: Slattery J
Decision: Declaration made that the Court has no subject matter jurisdiction over the assets of the second defendant. Order made declining to exercise jurisdiction in the proceedings. Proceedings dismissed against the second defendant. Directions made to deal with costs issues.
Catchwords: PRIVATE INTERNATIONAL LAW – Jurisdiction – Subject-matter jurisdiction – second defendant served with the Statement of Claim in these proceedings but has not appeared – Statement of Claim alleges the second defendant held assets on constructive trust for the plaintiff and was knowingly involved in a breach of duty as a constructive trustee – second defendant died after proceedings commenced – grant of probate made in Singapore to foreign legal personal representative of the deceased second defendant – the foreign legal personal representative seeks dismissal of the proceedings against the second defendant on the basis that this Court has no subject matter jurisdiction over the second defendant’s estate – plaintiff seeks appointment of the second defendant’s foreign legal personal representative to represent his estate under Uniform Civil Procedure Rules 2005, r 7.10 – whether the Court has jurisdiction to entertain an action against the foreign legal personal representative of the deceased second defendant who has been served with legal process but has not appeared.
Legislation Cited: Civil Procedure Act, ss 3, 16, 56, 61
Equity Act 1880, s 8
Foreign Judgments Act 1991 (Cth)
Probate and Administration Act 1934 (Singapore), s 2
Reciprocal Enforcement of Foreign Judgments Act 1959 (Singapore)
Succession Act 2005 s 59
Uniform Civil Procedure Rules 2005, rr 1.11, 1.12, 2.1, 6.10, 6.30, 6.31, 7.10, 11.8, 11.8AA, 12.11
Cases Cited: Boyd v Leslie [1964] VR 728
Chellaram v Chellaram [1985] Ch 409
Commissioner of Succession Duty v Hargrave [1972] 3 SASR 118
David v Ryan [2018] NSWSC 971
De la Sala v De La Sala (No 2) [2025] NSWSC 853
Electronic Industries Imports Pty Ltd v Public Curator (Qld) [1960] VR 10
Ewing v Orr Ewing [1883] 9 AC 34
Hartnett t/as Hartnett Lawyers v Bell as Executor of the Estate of Deacon-Bell (2023) 112 NSWLR 463
Hazeldell Limited v The Commonwealth (1924) 34 CLR 442
Helicopter Resources Proprietor Limited v The Commonwealth [2019] FCA FC 25; 365 ALR 233
Hiralal v Hiralal [2013] NSWSC 984
Homeward Bound Gold Mining Co. (No Liability) v McPherson (1895) 17 N.S.W.L.R. Eq 281
L’Abbate v Collins and Davey [1982] VR 28
MAM Mortgages Ltd (in Liq) v Cameron Bros [2002] QCA 330
Maria-Christina Perez de la Sala v Felicite Terrill Perez de la Sala [2025] NSWSC 835
Nagel v Hough (1927) 27 SR NSW 418
Nature’s Care Holdings Pty Ltd v Chen (No 3) [2024] NSWSC 245
Nudd v Taylor [2000] QSC 344
Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309
Permanent Trustee Co (Canberra) Ltd v Finlayson (1968) 122 CLR 338
Reeves v Reeves (No. 2) [2024] NSWSC 386
Ridley v Whipp (1916) 22 CLR 381
Webb (dec’d), Re; Webb v Rogers (1992) 57 SASR 193
Webb v Webb [1992] 1 All ER 17
Texts Cited: M Davies, AS Bell, PLG Brereton and M Douglas, Nygh’s Conflict of Laws in Australia, 10th edn (2020)
Dicey, Morris and Collins on The Conflict of Laws, 16th edn, vol 2
M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020)
M Leeming, “The Primary Judge in Equity” (2016) 90 ALJ 783
Category: Procedural rulings
Parties: Elsbeth Turner in her capacity as Executrix of the Estate of Ernest Ferdinand Perez de la Sala (Applicant)
Maria-Christina Perez de la Sala (Plaintiff/First Respondent)
Estate of Ernest Ferdinand Perez de la Sala (Second Defendant/Second Respondent)
Representation: Counsel:
J Hewitt SC (Applicant/Second Respondent/Second Defendant)
R Wilson SC (Respondent/Plaintiff)
Solicitors:
K&L Gates (Applicant/Second Respondent/Second Defendant)
L Rundle & Co (Respondent/Plaintiff)
File Number(s): 2023/00214349
Publication restriction: Nil
These proceedings form one part of globe-spanning litigation among descendants of the late Robert Perez de la Sala. Family members are currently parties to proceedings in Singapore, the United Kingdom and Australia.
The principal point at issue on the motion determined by this judgment is whether this Court has jurisdiction to grant the relief the plaintiff, a granddaughter of Robert Perez de la Sala, seeks in these proceedings against the deceased estate of her uncle, the second defendant and a son of Robert Perez de la Sala.
At the time of his death in 2023 the second defendant had long been a permanent resident of Singapore. He had been personally served with the Statement of Claim in these proceedings shortly before his death. None of the assets of his estate are in New South Wales.
The parties to these proceedings mostly referred to one another and to earlier generations of the de la Sala family in evidence by their first names, and their legal representatives did the same. Without intending any disrespect to any family member, the Court has adopted the same convention in this judgment.
The applicant on the motion, Elsbeth Turner (“Ms Turner”), is the executrix named in the will of the late Ernest Ferdinand Perez De la Sala (“Ernest”), who was the second defendant. The first respondent on the motion and the plaintiff in the proceedings, Maria-Christina Perez De la Sala (“Christina”), claims relief in her Statement of Claim against Ernest (prayers for relief 2 and 5 of the Statement of Claim) alleging that he breached duties he owed her as the alleged trustee of assets she claims he held for her benefit. Ernest did not file an appearance to Christina’s Statement of Claim before his death, nor has Ms Turner after his death.
By her Notice of Motion filed on 22 January 2025, Ms Turner seeks:
An order pursuant to Uniform Civil Procedure Rules (UCPR) r 12.11(1)(g) declaring that the Court has no jurisdiction over the second defendant in respect of the subject matter of the proceedings.
In the alternative, an order pursuant to UCPR r 12.11(1)(h) declining to exercise jurisdiction over the second defendant in the proceedings.
An order pursuant to UCPR r 12.11(1)(i) for costs and such other relief as the Court thinks appropriate.
The motion was heard on 9 May 2025. Mr J Hewitt SC instructed by K&L Gates appeared for Ms Turner. Mr R Wilson SC instructed by L. Rundle & Co Solicitors appeared for Christina.
The Court concludes in these reasons that it has no jurisdiction to grant the relief sought in prayers for relief 2 and 5 of the Statement of Claim against the estate of the Second Defendant.
The late Robert Perez de la Sala commanded a maritime and industrial corporate empire based in Hong Kong and Singapore. In his later years he and his wife Camila migrated to Australia and settled in the Sydney suburb of Mosman. Robert died in 1967, and Camila died in 2005. Many years after their deaths, conflict broke out within the family about the beneficial ownership of corporate assets that Robert had created. The issues for present determination only require the Court to record in these reasons a limited number of relatively undisputed aspects of that conflict.
Robert became the executive chairman and majority shareholder in a maritime trading company, John Manners and Company Ltd (“JMC”). He incorporated a family investment vehicle Northern Enterprises Ltd (“NEL”) and its predecessor entity Lasala Investments Limited. Robert held his accumulated wealth through JMC and NEL, which were both incorporated in Hong Kong.
Robert and Camila had four children, Jerome Anthony, Ernest, Robert Jr (Bobby), Isabel Koustas (“Isabel”), and Edward and Thomas (who both died in their youth), the second generation of the family. Most of the surviving second generation of the family had children, although only one branch of this third generation is relevant to the issues pleaded in the Statement of Claim.
Ernest led the family businesses after Robert’s death. Ernest initiated and completed a corporate restructuring, with the result that the assets of JMC and NEL, which were distributed across many different national jurisdictions, were held in the name of six companies (referred to for convenience in these reasons as “the nominee companies”).
Bobby and his wife Felicity Terrill Perez De La Sala had four children, Maria-Teresa (“Teresa”), Edward Robert (“Edward”), Christina the plaintiff in these proceedings, and Maria Isabel Harry (“Isabel Harry”), all comprising one part of the third generation of the De La Sala family. Bobby died in July 2022. Christina married James Morgan Copinger–Symes (“James”). She is a permanent resident of Singapore.
In circumstances that are contested and on a basis which was contested in the Singapore proceedings and is contested in these proceedings, Edward, Christina and James came to work in Singapore for the nominee companies under Ernest’s general direction.
Relationships between Edward, Christina and James on the one side and Ernest on the other side, ruptured in 2011, and Ernest transferred assets held in the nominee companies’ bank accounts into his own name. But the nominee companies claimed beneficial ownership of the assets and in 2012 commenced proceedings to recover them from Ernest on the basis he had breached his director’s duties to the nominee companies by transferring the assets to himself. Ernest asserted he owned the assets beneficially and cross-claimed against Edward, Christina and James for breach of their duties in managing the nominee companies. Edward, Christina and James also cross-claimed for relief on the basis that Ernest had represented to them that the nominee companies are part of a De la Sala family legacy, which representations had induced them to relocate to Singapore to assist Ernest.
“a grant under the seal of the court issuing the same, authorising the executor or executors expressly or impliedly appointed by a testator’s will, or one or more of them, to administer the testator’s estate in compliance with the directions contained in his will, and in accordance with law”
Ms Turner has not obtained a grant or reseal of probate of Ernest’s estate in New South Wales or anywhere else in Australia. Her affidavit of the assets of the estate sworn for the purposes of her application for probate in Singapore deposes that the deceased owned no property outside Singapore and that his estate within Singapore had a gross value of S$462,792,747.64. Ms Turner says she has no reason to obtain a grant or reseal of probate outside Singapore.
Ms Turner is a resident of Canada and holds a Canadian passport. She has no connection with Australia. She was born in Switzerland and has resided in North Vancouver since 1975.
Ms Turner has not been served with Christina’s Statement of Claim. Christina has not applied to join Ms Turner as a party to these proceedings to replace Ernest after his death. The absence of Christina taking this step is generally consistent with the effect of the anti-suit injunction obtained against her in Singapore, which is described in more detailed below. Ms Turner does not consent to being joined as a party to these proceedings and does not submit to the jurisdiction of this Court in respect of Christina’s claim.
After Ernest’s death Christina’s legal representatives and those of Ms Turner corresponded. On 11 January 2024 Christina’s solicitor, Mr Dornan of L Rundle & Co sent a letter to Ms Turner requesting information about the steps she had taken to obtain probate of Ernest’s will so that L Rundle & Co could advise this Court who should be appointed as the legal personal representative for Ernest’s estate.
On 24 January 2024, K&L Gates (Singapore) sent a short reply letter confirming that they acted for Ms Turner and stated that she was the executrix of Ernest’s estate, but the letter declined to respond further to the inquiries made on behalf of Christina.
On 25 January 2024 Mr Dornan sent a further letter to K&L Gates (Singapore) enclosing the Statement of Claim and enquiring whether Ms Turner intended to file an appearance in these proceedings, or to seek a representative order under UCPR*,* r 7.10. In the absence of a response, Mr Dornan sent a follow-up letter on 9 February 2024.
On 12 February 2024, Mr Webster of K&L Gates (Sydney) replied to Mr Dornan. The letter stated that Ms Turner, at that point in time, did not propose to file an appearance but reserved the right to seek a representative order. The letter relevantly provided:
“2. At this stage, we are not instructed to file an appearance in the Proceedings. However, depending on developments in the Proceedings, that position may change and all of our client's rights are fully reserved in that regard, including the right to seek an order pursuant to Rule 7.10 of the UCPR.
3. In the interim please ensure that we are kept informed of all developments in the proceedings and copied on all relevant correspondence so that we can obtain instructions as and when necessary.”
1. An interim anti-suit suit injunction be granted restraining the Defendant [Christina] from prosecuting or maintaining the Constructive Trust Claim (as defined in HC/OA 171/2024) in the NSW Action (as defined in HC/OA 171/2024) against the Claimant, or from prosecuting or bringing such proceedings anywhere else (in Australia and elsewhere) until the final determination of HC/OA 171/2024 (including any appeals arising therefrom);
This injunction does not restrain Christina from prosecuting her Succession Act, s 59 family provision claim, only her constructive trust claims in relation to the assets held by the nominee companies, the subject of the 2012 proceedings in Singapore and the September 2020 settlement deed.
Christina sought, without success, to strike out the anti-suit injunctions obtained in Singapore by the defendants to these proceedings other than Ernest. At the time of the hearing in May, the parties to the three anti-suit injunction Singapore proceedings were at a procedural turning point. The applicants (the defendants in these proceedings) proposed to discontinue the three Singapore proceedings in which the anti-suit injunctions had been obtained, on the basis they were going to file separate substantive proceedings by Statement of Claim alleging that these Australian proceedings are barred (a) by res judicata and what, in Australian jurisdictions, would be called Anshun estoppels arising from the 2018 proceedings, (b) by conventional estoppels arising from the September 2020 deed of settlement, and (c) are otherwise an abuse of process. The reasoning for discharging the anti-suit injunctions in Singapore seems to be that they were no longer necessary because substantive proceedings were being commenced there.
At the time of the May hearing, the consensual discontinuance of the anti-suit injunctions and the commencement of the new substantive proceedings had not yet occurred. But when it did occur, it led to another round in the cycle of litigation between these parties.
The interim anti-suit injunctions were discharged in Singapore on 5 June 2025. Christina’s solicitors foreshadowed that she proposed to pursue the entirety of the relief sought in her Statement of Claim in these proceedings here in New South Wales. The solicitors for the defendants responded on 16 July 2025 notifying Christina’s solicitors that unless that position was withdrawn, they would seek fresh anti-suit injunctions in Singapore.
But on 23 July 2025 Christina applied by motion in these proceedings and obtained from the Equity Duty Judge interim anti-suit and anti-anti-suit injunctions. In Maria-Christina Perez de la Sala v Felicite Terrill Perez de la Sala [2025] NSWSC 835 (at [4] to [16]), Richmond J published reasons for granting the interim injunctions ex parte and set out an outline of the history of these proceedings as they applied to that application. When the matter came before Richmond J on 30 and 31 July 2025, the parties other than the second defendant undertook to this Court to maintain the status quo until Christina’s anti-anti-suit injunction could be heard.
Ms Turner did not take that course. Instead, she moved to discharge Christina’s motion because she, Ms Turner, had not submitted to the jurisdiction of this Court. Christina’s motion named Ms Turner as the new second respondent to the motion and sought orders to join Ms Turner as the second defendant in the proceedings as executrix of Ernest’s estate and sought the anti-suit and anti- anti-suit injunctions against her in that capacity. Applying [2024] NSWSC 245 at [16], Richmond J concluded that Christina’s said motion is not an originating process, its service on Ms Turner could only occur with the leave of the Court pursuant to *,* r 11.8AB, and as leave had not been sought or granted, this Court could not assume jurisdiction over Ms Turner and therefore the interim injunctions made against her should be discharged: [2025] NSWSC 853. This procedural resolution meant Richmond J did not have to decide the present issues before the Court.
The Court first addresses the procedural issues advanced by each party. Mr Wilson SC for Christina contended that Ms Turner’s motion should be dismissed on procedural grounds, because it is out of time and because Ms Turner does not have standing to bring the motion.
Any right of action against Ernest survives against his estate. UCPR, r 6.30, provides that (1) “proceedings do not abate as a result of a party’s death” and that (2) “if a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the Court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties.” If the constructive trust claim can be maintained against Ernest’s Estate, the Court can regularise the proceedings by joining Ms Turner or re-arranging the parties as it sees fit.
The contention on behalf of Christina that Ms Turner’s motion is out of time points to the time limit in UCPR*,* r 12.11, the provision under which Ms Turner brings her motion. UCPR*,* r 12.11 relevantly provides:
12.11 Setting aside originating process etc
(1) In any proceedings, the court may make any of the following orders on the application of a defendant—
...
(g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,
(h) an order declining to exercise jurisdiction in the proceedings,
(i) an order granting such other relief as the court thinks appropriate.
(2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.
(3) Notice of motion under subrule (2):
(a) may be filed without entering an appearance; and
(b) must bear a note stating the applicant’s address for service.
(4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court.
The time for an application under UCPR*,* r 12.11(2) to be made in instances where a defendant has been served locally is 28 days after service of the originating process. This is the time by which an appearance is required to be filed by a properly served defendant, unless otherwise ordered: UCPR*,* r 6.10(1)(a). But where a defendant has been served outside of Australia, the time for making an application is 42 days. Either way Ms Turner’s motion is about 12 months out of time, because this application (or an appearance) should have been filed by no later than 8 January 2024, being 42 days after service on Ernest on 27 November 2023: UCPR*,* r 1.11; r 11.8. This application was filed over 12 months later, on 22 January 2025.
Mr Hewitt SC puts several submissions in reply to this contention. It is not necessary to consider them all, as one is sufficient. The Court has power to extend time provided for under the rules: UCPR*,* r 1.12. The Court will extend time in this case as the circumstances warrant that exercise of discretion. The Singapore anti-suit injunctions have stopped Christina progressing these proceedings against Ernest’s estate. It was reasonable for Ms Turner to focus on seeking permanent relief in the Singapore proceedings and waiting to see if Christina accepted the jurisdiction of the Singapore courts to deal with the same constructive trust relief she is seeking in these proceedings. When it was clear that Christina was seeking to continue these proceedings rather than accept the jurisdiction of the Singapore courts, it was reasonable for Ms Turner then to bring the present motion challenging this Court’s jurisdiction. Given the timetable of events described earlier in these reasons, it is therefore reasonable to extend pursuant to UCPR*,* r 1.12 the time provided for under UCPR*,* r 12.11, so that it expires on the date of filing of Ms Turner’s motion on 22 January 2025.
But this works both ways. Christina faces her own time-related procedural issues. Ernest’s death did not abate any claim against him in these proceedings but following his death the Court can make such orders as it thinks fit for the joinder removal or rearrangement of parties: UCPR*,* r 6.30(1) and (2). UCPR*,* r 6.31 provides for the proceedings to be reconstituted in respect of surviving causes of action upon an application made within 3 months of the death of the party.
Hewitt SC submits on behalf of Ms Turner that the Court should dismiss these proceedings against Ernest’s estate under UCPR*,* r 6.31, because Christina did not apply for the joinder of Ernest’s estate within 3 months following his death. UCPR*,* r 6.31 provides:
6.31 Court may dismiss proceedings not prosecuted following death of party
(1) This rule applies to any proceedings in which--
(a) a party dies, but a cause of action in the proceedings survives his or her death, and
(b) an order for the joinder of a party to replace the deceased party is not made within 3 months after the death.
(2) The court may order that, unless an application to join a party to replace the deceased party is made within a specified time, the proceedings in relation to the cause of action concerned be dismissed.
(3) An application for such an order may be made by any person to whom the deceased party's liability in relation to the cause of action concerned has passed (whether or not a party to the proceedings).
(4) On making an order under this rule, the court may give such directions as it thinks fit for service of the order on any person (whether or not a party to the proceedings) who is interested in continuing the proceedings.
The time limits in UCPR*,* r 6.31 apply here. Although Ms Turner’s motion has not expressly sought dismissal on this basis, UCPR*,* r 6.31 has certainly been the subject of substantive argument on the motion. Mr Wilson SC submits in reply that the reason no steps were taken earlier to regularise these proceedings by joining the executrix of his estate, Ms Turner, or seeking to appoint someone else to represent the estate, was due to the existing anti-suit injunctions and that taking such active steps could be construed as prosecuting the constructive trust claims in breach of the anti-suit injunction.
This is persuasive. Any step to join Ms Turner to represent the estate would have amounted to prosecuting the constructive trust claims in breach of the anti-suit injunctions. It was reasonable for Christina to have waited to see how the pleadings in the substantive proceedings in Singapore unfolded before taking a clear position in relation to pursuing these proceedings. It would therefore be reasonable to extend pursuant to UCPR*,* r 1.12 the time provided for under UCPR*,* r 6.31 should that be required, but the result of these proceedings makes such an application unnecessary.
Mr Wilson’s other procedural contention on behalf of Christina is that Ms Turner does not have standing to bring her motion. Christina emphasises that Ms Turner’s motion seeks declaratory relief pursuant to UCPR*,* r 12.11(1)(g) that this Court “has no jurisdiction over the second defendant in respect to the subject matter of the proceedings” and the related relief under UCPR*,* r 12.11(1), which is more fully described above. Christina points out that the motion is brought by Ms Turner, who is not a “defendant” as UCPR*,* r 12.11 requires. Christina submits that pursuant to Civil Procedure Act 2005 (“CPA”), s 3 Ernest being “a person against whom proceedings are commenced” is the defendant and not Ms Turner. Therefore, Christina submits Ms Turner does not have standing to bring the application, as she has not obtained an adequate grant of representation in this jurisdiction to represent Ernest’s estate nor is she a party to the proceedings.
Mr Hewitt SC put several arguments in reply to this contention, contending that the Court should hear Ms Turner’s motion. He submits that the following arguments justify that course: the Court should construe the meaning of “defendant” in CPA*,* s 3 broadly to include the personal representative of the deceased defendant to give effect to the overriding purpose defined by CPA*,* s 56(2); that Ms Turner may be granted leave pursuant to CPA*,* s 16, to bring the motion, as a direction with respect to an aspect of practice or procedure for which rules of court do not provide; the Court may make orders and directions under *,* s 61, “whether or not inconsistent with rules of Court”, for the speedy determination of the real issues between the parties to the proceedings; the Court may “… make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with the rules or any rules of the court) for the just, quick and cheap disposal of the proceedings" pursuant to *,* r 2.1; and proceeding on the motion may be authorised in the Court’s inherent jurisdiction.
Ms Turner submits that this Court has no subject matter jurisdiction in respect of the constructive trust relief Christina seeks in the Statement of Claim over the assets in Ernest’s estate. Ms Turner says that she has not submitted to this jurisdiction. She says that as a foreign resident (in Canada), who holds a grant of probate issued by a court of foreign jurisdiction (in Singapore), who has not obtained a grant of representation or a reseal of probate for Ernest’s estate in New South Wales, she cannot be sued here as a legal personal representative of the assets in Ernest’s estate. She says a well-established principle of private international law applies to the present circumstances: her right to represent Ernest’s estate is local to and limited to the Republic of Singapore and she cannot be sued in New South Wales in that capacity.
Ms Turner’s argument is persuasive. The analysis which the Court has accepted, and is recorded here, is based on Mr Hewitt SC’s submissions on this issue put on Ms Turner’s behalf. Christina’s arguments in reply, which are unsuccessful on this issue, are considered later below.
The Court accepts the following analysis. Upon Ernest’s death Christina could no longer maintain these proceedings against him personally. A deceased person does not continue to possess any legal personality allowing them to be sued: M Davies, AS Bell, PLG Brereton and M Douglas, Nygh’s Conflict of Laws in Australia, 10th edn, 2020, (“Nygh”) at [37.5]. Australian law does not recognise the estate of a deceased person as having some form of existence enabling it to be sued: MAM Mortgages Ltd (in Liq*) v Cameron Bros* [2002] QCA 330 at [42] (McPherson and Jerrard JJA and White J).
Although Ernest was served with the Statement of Claim, Ms Turner has not been served either in Australia, Singapore or elsewhere. She is not present within the jurisdiction of this Court and has not submitted to this Court’s jurisdiction. Therefore, this Court has no in personam jurisdiction over her. But even if Ms Turner had submitted to the jurisdiction of this Court, it might thereby have personal jurisdiction over her, yet on the applicable authorities the Court would still not have subject matter jurisdiction over the assets of Ernest’s estate. As Leeming JA points out extra-curially, in Leeming at [6.4] – Voluntary Submission (p184), referring to Ridley v Whipp (1916) 22 CLR 381, at 386 and Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [10]:
“It is essential to distinguish a court’s authority to decide a particular class of dispute from its authority to bind a particular defendant – that is to say subject matter jurisdiction and personal jurisdiction.”
An unconditional Notice of Appearance may overcome any objections to a court’s exercise of personal jurisdiction over a defendant, but it cannot cure an absence of subject matter jurisdiction. Here the issue is whether this Court has subject matter jurisdiction over Ernest’s estate, which is wholly situated in Singapore and is wholly administered under a Singapore grant of probate.
The law is well-established that a New South Wales court does not have subject matter jurisdiction to give a judgment that binds assets which are subject only to a foreign grant of probate even where an unconditional appearance has been filed, at least if a personal representative is not also sued as a trustee: Boyd v Leslie [1964] VR 728 and Leeming at [6.4] – Voluntary Submission (p185). These reasons will return shortly to the exception of possibly being sued as a trustee.
The applicable case law starts in this State with Nagel v Hough (1927) 27 SR NSW 418. In that case the plaintiff sought to enforce in New South Wales a maintenance order against the estate of her late husband who had deserted her and died domiciled in Queensland. Probate was granted in Queensland to the defendant and not resealed in New South Wales. In Nagel v Hough (at 423) Long Innes J dismissed the plaintiff’s claim and stated that “the law seems to be clear that the operation of a grant of probate is purely territorial and local”. In support Long Innes J cited with approval the following statement in the then current second edition of Dicey’s Conflict of Laws, “a foreign personal representative is not, as such, under any liability in England, and cannot, as foreign personal representative, be sued in England”.
Nagel v Hough (also at 423) recognised two exceptions to this principle. The first exception is, if the foreign personal representative brings into the jurisdiction movables of a deceased which have not been so appropriated as to lose their character as part of the property of the deceased, an action, may be brought for their administration in the jurisdiction of the forum, provided a local administrator is joined as a party (ordinarily requiring a local reseal of the probate). The second exception is if the foreign personal representative deals with the property of the deceased in a manner that incurs personal liability in the jurisdiction of the forum by for example becoming an executor de son tort.
Neither of these exceptions applies here. No estate assets have been brought into New South Wales and there is no local reseal of the Singapore probate, so the first exception does not apply. As to the second exception, the pleaded claim against Ernest as second defendant is entirely for alleged conduct during his lifetime. Therefore, the exception relating to a personal representative’s own dealings rendering the representative liable within the jurisdiction as an executor *,* is not enlivened.
“It is obvious that the present proceedings are also framed against the defendant not as a trustee under a declaration of trust which he has himself made, or as trustee by virtue of some acts which he had himself performed; but for the administration of the trust reposed in him as executor or, and I think that that case [Ewing v Orr Ewing], amongst others, is authority for the proposition that until probate is resealed in this estate, this Court will not regard him as an executor;”
None of these circumstances applies here. Christina does not allege in any existing or proposed amended pleading that Ms Turner has herself declared trusts or performed acts which make her by reason of her own acts a constructive trustee for Christina of any of the assets of the nominee companies. The contentions made on Christina’s behalf in the Statement of Claim all relate to Ernest’s conduct. Ms Turner’s presently alleged liability is merely derived from her assumption of the office in Singapore of the legal representative of Ernest’s estate.
If the pleadings had alleged a constructive trust against Ms Turner, the position might be otherwise. For example, an Australian court may assume jurisdiction under general law in respect of the administration of a trust and its assets, if it has jurisdiction in personam over the trustees: Chellaram v Chellaram [1985] Ch 409; Webb (dec’d), and Re*; Webb v Rogers* (1992) 57 SASR 193. This rule applies to both express and constructive trusts: Nudd v Taylor [2000] QSC 344 at [28]; Webb v Webb [1992] 1 All ER 17 at 26; and see Hiralal v Hiralal [2013] NSWSC 984 at [170]. This jurisdiction is not affected by the fact that the proper law of the trust is the law of another country, or that all assets of the trust are located abroad. But that is not the situation the Court faces here.
The principle stated in Nagel v Hough has often been restated and applied. In Electronic Industries Imports Pty Ltd v Public Curator (Qld) [1960] VR 10 (Electronic Industries) a suit for negligence was brought in Victoria against the administrator of the deceased’s estate, who was the foreign personal representative granted authority from the Courts of Queensland. O’Bryan J applied Nagel v Hough and accepted that the principle is that a foreign personal representative is not as such under any liability in Victoria and cannot be sued in his official capacity in that state. O’Bryan J also stated (at p 11) that the issue before him “is not a question of validity of service but one of the jurisdiction of the Victorian court to entertain the suit against” the defendant. O’Bryan J accepted (at p 11) that the overall effect of his ruling was:
“The result will be that if there are not assets of the deceased in Victoria there will be no grant here and, therefore, nobody who can be sued here. But, as far as I can see, there is no reason why the plaintiff should not pursue its remedy in Queensland, the State in which the deceased’s estate is being administered.
In Boyd v Leslie [1964] VR 728 Sholl J was faced with proceedings brought for libel in Victoria against the executor of the will of a New South Wales newspaper publisher. The executor defendant only had a grant of probate in New South Wales. But the defendant executor had filed an unconditional appearance in Victoria and had therefore submitted to the in personam of the Victorian Supreme Court. But the defendant executor sought to strike out the proceedings against her on the grounds that as a foreign personal representative she was improperly joined in the proceedings. Appling Electronic Industries Sholl J found that notwithstanding the defendant’s unconditional appearance, she had been improperly joined. Sholl J stated the applicable principle (at 731) as follows: “the Victorian court…has no jurisdiction to pronounce a judgment which would purport to bind assets which are subject only to a foreign grant”. Sholl J left open the question of what would happen if the defendant had been sued as a trustee.
Other subsequent authorities have applied Nagel v Hough*,* Electronic Industries and Boyd v Leslie: see for example, Commissioner of Succession Duty v Hargrave [1972] 3 SASR 118 at 125 and L’Abbate v Collins and Davey [1982] VR 28 (“L’Abbate”). In L’Abbate*,* after a defendant in Victorian Supreme Court proceedings in contract had died, the Victorian Supreme Court declined to assume jurisdiction to entertain action against persons who were heirs of the deceased and who by universal succession were responsible for all his legal liabilities according to the laws of Italy.
The same principle is restated by the specialist text writers. Nygh states at [37.6], citing Electronic Industries*,* L’Abbate and Boyd v Leslie*,*
“a foreign legal representative who has not obtained a grant of representation in the forum has no standing to sue or be sued in that representative capacity. Nor will the forum recognise the right of any other person who claims to represent the deceased’s interest as a “universal heir” under civil law. Since such a person simply has no existence within the forum it is not a defect that can be cured by waiver or submission.”
“A foreign personal representative cannot be made liable in England for property held or acts done by him or her in his or her character of foreign administrator. This is so even if he or she acknowledges service and submits to the jurisdiction, for he or she has no power to submit the assets he or she holds to the judgement of the English court”.
Both Ny**gh and D**icey acknowledge the two exceptions, inapplicable here, of a foreign personal representative bringing assets into the jurisdiction or dealing with the property of the deceased to incur personal liability in the jurisdiction.
Mr Hewitt rightly submits that the Court has no subject matter jurisdiction over Ernest’s estate and Ms Turner. This Court has no jurisdiction to pronounce a judgment to bind the assets of Ernest’s estate which are the subject of only a foreign grant in Singapore.
Christina’s submissions in answer to this conclusion are not persuasive. First she contends that Ernest was validly served in Singapore before his death. But the issue is not one as to the validity of service, but rather whether this Court has the subject matter jurisdiction to entertain the suit: cf Electronic Industries at p 11; Boyd v Leslie at p 729.
Mr Wilson SC next submitted on behalf of Christina that Australia and Singapore have arrangements for reciprocal enforcement of foreign judgments under the Foreign Judgments Act 1991 (Cth) and the Reciprocal Enforcement of Foreign Judgments Act 1959 (Singapore). Notwithstanding that there are no assets in this jurisdiction, he submits that in the event Christina is successful, she could use the reciprocal enforcement of money judgment treaties between Singapore and Australia to seek enforcement of any money judgment obtained in these proceedings against Ernest’s estate (for example after an award of equitable compensation).
This argument is not persuasive. Even if this case were allowed to proceed and after the declaration of a constructive trust a money judgment were obtained, the money judgment could not be registered in Singapore. The regime for the enforcement of Australian judgments in Singapore under the Reciprocal Enforcement of Foreign Judgments Act 1959 (Singapore) is substantially the same as Australia’s Foreign Judgments Act 1991 (Cth). Any registration of a foreign judgment in Australia and Singapore under Reciprocal Enforcement of Foreign Judgments Act 1959 (Singapore), s 5 (a)(ii) can be set aside under the Foreign Judgments Act*,* s 7(2)(a)(iv) on the basis that “the courts of the country of the original court had no jurisdiction in the circumstances of the case”. The Supreme Court of New South Wales has no jurisdiction over Ms Turner and the assets that she holds as executrix of Ernest’s estate. Any attempt in Singapore to register such a judgment would be successfully opposed or if registered set aside because of this Court’s lack of subject matter jurisdiction.
Mr Wilson SC further submits on behalf of Christina that the issues raised can be solved by deploying UCPR*,* r 7.10. He submits that Ms Turner is not the defendant but Ernest’s estate’s foreign personal representative and that an order should be made pursuant to UCPR*,* r 7.10(2)(a) that the proceedings continue in the absence of a representative of Ernest’s estate or alternatively, an order pursuant to UCPR, r 7.10(2)(b) that a person, such as Ms Turner, be appointed to represent Ernest’s estate and then the proceedings can continue within the jurisdiction.
Mr Wilson SC submits that were an order under UCPR*,* r 7.10(2) appointing a representative for Ernest’s estate to be made, the estate would then be bound by any orders or determinations made by this Court. Similarly, if an order that the proceedings proceed without a representative for his estate, the estate may still be bound: [2018] NSWSC 971 at [11]; [2024] NSWSC 386 at [176].
“I have tried very hard to come to a different conclusion in this matter, and at one time thought that I might avail myself of the powers which are given to the court by s24 of the Equity Act; and in recognising that there is no legal personal representative of the deceased in this State, that I might appoint the gentleman who is the Queensland executor to represent the estate of the deceased for the purposes of this suit. But in the Homeward Bound Gold Mining Co*. (No Liability) v McPherson* (1895) 17 N.S.W.L.R. Eq 281, at 284*,* Owen CJ in Eq held that section cannot be availed of where specific relief is sought against the estate of the deceased person in question.”
The reference in this passage of Nagel v Hough to Equity Act 1880, s 24 is in fact an uncommon error in a judgments of Long Innes J. The reference should be to s 8. Section 24 deals with unrelated issues concerning the pleading of exceptions in defences. The error is clear upon examining the passage from the judgment in the Homeward Bound Gold Mining Co. (No Liability) v McPherson (1895) 17 N.S.W.L.R. Eq 281, at 284 (Homeward Bound) which Long Innes J cites. The passage refers to Equity Act s 8, not s 24.
In Homeward Bound*,* the plaintiff, a Victorian mining company had mining leases in New South Wales, which had been allowed to expire due to the action of the company’s agents. As part of a fraudulent conspiracy, the defendants, including one Allen, had sought the grant of a fresh mining lease to certain shareholders of the company rather than to the company itself. The plaintiff company was seeking relief to make the defendants constructive trustees of the newly granted mining lease in New South Wales. Objection was taken by the defendants that Allen was dead when the suit was instituted and he could not now be proceeded against without his estate being joined. Specific relief was sought against Allen. The report shows Owen CJ in Eq dealing during argument with the position of Allen’s estate under Equity Act, s 8.
“Owen CJ in Eq said he was clear that the case did not fall within the purview of s 8 of the Equity Act but some alteration must be made in the record. He was of opinion two courses were open to the plaintiffs. If they wished to get relief from Allen’s estate they must get an administrator of his estate appointed or they might now admit that Alan was not guilty of the fraud and conspiracy alleged and strike out his name as defendant, together with all the charges of conspiracy against him, so as to estop themselves from proceeding against Allen’s estate in the future. The case being one of fraud and conspiracy, all the parties who were charged with conspiring must be represented in the suit.
The Statement of Claim was then amended by striking at Allens name and the charges of conspiracy made against him. The evidence in the case was then proceeded with.”
“8. If in any suit or proceeding in Equity it shall appear to the Court that any deceased person who was interested in the matters in question has no legal personal representative it shall be lawful for the Court either to proceed without any person representing the estate of such deceased person or to appoint some person to represent such estate for the purposes of the suit or proceeding on such notice (if any) as the Court shall think fit either specially or generally by public advertisement and every order made in reference to the matter and every order consequent thereon shall bind the estate of such deceased person in the same manner as if there had been a duly constituted legal personal representative of such deceased person and such representative had been a party to the suit or proceeding and had appeared and submitted his rights and interests to the protection of the Court.”
The reported case does not make clear whether Allen had any assets within the jurisdiction. It was not necessary to investigate this because Allen was dropped from the proceedings as a defendant. But this shows that Long Innes J in Nagel v Hough did not see using Equity Act*,* s 8 as a solution to jurisdictional issue such as the present.
Thirdly, another theoretical option is to use the power under UCPR*,* r 7.10(2)(b) to make an order that Christina’s action proceed in the absence of a representative of Ernest’s estate. But that does not assist the plaintiff. Even if an order is made under this rule, that the proceedings continue in the absence of a representative of the estate, any judgment can still only be entered against an identified person: C**olquhoun v Graffione (2000) 97 FCR 376; [2000] FCA 325 at [26] – [27] and Ivan**ovski v Perd**acher [2009] NSWSC 913. This option merely defers the question now being addressed.
Fourthly, if this Court were to make an order under UCPR*,* r 7.10 and to proceed, it would be claiming to make determinations about the assets of Ernest’s estate, which would be in tension with the principle that the assets of a deceased estate should be administered in accordance with the lex fori of the country in which representation of the estate has been granted: Permanent Trustee Company (Canberra) Ltd v Finlayson (1968) 122 CLR 338 at 342–3 (“Finlayson”).
Even if no in personam jurisdiction over the executor can be established, the Court may in its inherent jurisdiction still act in relation to any assets of the estate within the jurisdiction: Nygh at [37.23] – [37.24]. But in a case such as the present, where probate has been granted in Singapore, the Court’s in personam jurisdiction over the executor is limited to the assets within this jurisdiction: Finlayson at 341. Here it is common ground on this application that there are no such assets.
The Court will make orders under UCPR*,* r 12.11(1)(g) declaring it has no jurisdiction over the second defendant in respect of the subject matter of these proceedings and an order under UCPR*,* r 12.11(1)(h) declining to exercise jurisdiction in the proceedings against second defendant.
The question arises as to whether the Court should make an order under UCPR*,* r 12.11(1)(i) granting any other relief. The only other potentially appropriate relief is an order for costs. Even in a contest concerning whether a court will exercise jurisdiction, costs orders can be made if they are necessary to do justice: this Leeming, p 36.
Ms Turner has been successful on the motion. Ordinarily the costs of the motion would follow the event. Ms Turner’s costs of the proceedings before Ms Turner’s motion was filed should also perhaps follow the event, but a resolution of that issue may invite different considerations. The Court is minded to order Christina to pay Ms Turner’s costs of the motion unless Christina files submissions within 21 days as to why she should not pay those costs. The parties are directed to submit an agreed timetable in relation to the issue of their respective costs of the proceedings, if they cannot otherwise agree upon a suitable outcome.
The Court will also give the first defendant and Christina an opportunity to put forward any submissions arising out this judgment that may affect the contest argued between them in 2024 in relation to Christina’s claim for family provision against Bobby’s estate. Once those submissions are available, the Court will give judgment on that application.
For these reasons the Court makes the following orders. The Court:
EXTENDS pursuant to UCPR, r 1.12 the time provided for under UCPR, r 12.11, so that it expires on the date of filing of the motion of the applicant, Ms Turner, on 22 January 2025.
DECLARES pursuant to UCPR r 12.11(1)(g) that the Court has no jurisdiction over the Second Defendant in respect of the claims in prayers for relief 2 and 5 of the Statement of Claim filed on 16 October 2023.
ORDERS pursuant to UCPR r 12.11(1)(h) that the Court declines to exercise jurisdiction to grant the relief against the Second Defendant claimed in prayers for relief 2 and 5 of the Statement of Claim filed on 16 October 2023.
NOTES that the Court is minded order the plaintiff to pay the costs of Ms Elspeth Turner of her motion filed on 22 January 2025, unless within 21 days of these orders the plaintiff files submissions as to why that cost order should not be made.
DIRECTS that if the plaintiff files submissions pursuant to NOTE (4) in relation to the costs of Ms Turner’s motion, then Ms Turner should file and serve submissions in reply within a further 21 days.
**********
Perez de La Sala
Perez de La Sala [2025] NSWSC 1018
(2023) 112 NSWLR 463
(1924) 34 CLR 442
(2015) 91 NSWLR 226
(1968) 122 CLR 338
(1916) 22 CLR 381
(1992) 57 SASR 193
(2013) 252 CLR 118
(2000) 99 FCR 554
(2000) 97 FCR 376
The 2012 proceedings were resolved by a judgment in 2017 of the High Court of Singapore and by an appeal judgment in 2018 of the Singapore Court of Appeal, resulting in findings that the nominee companies held the assets on resulting trust for NEL and JMC. Ernest’s and Edward, Christina and James’s respective cross claims were dismissed.
The nominee companies commenced new proceedings in Singapore in 2019 with a view to determining who may have other beneficial interests in the assets of the nominee companies. Edward, Christina and James were directors of the nominee companies during the conduct of these 2019 proceedings. Members of the third generation of the family were not joined as defendants in the 2019 proceedings. Christina sought to be joined to the 2019 proceedings but was not successful in doing so before they were settled.
The 2019 proceedings were resolved in a wider settlement by deed made in Singapore in September 2020, before Christina was joined as a party. The September 2020 settlement also resolved (a) other proceedings in Australia in relation to Camila’s estate, (b) proceedings in Hong Kong brought by Ernest, and (c) proceedings in Singapore brought by the nominee companies against Isabel. Ernest entered the September 2020 settlement. Ernest received the proceeds of the settlement during his lifetime, and they now form part of his estate. The 2020 settlement deed was made subject to the law of Singapore and the proceeds of the settlement included assets in the form of shares in JMC and NEL.
Other current family law proceedings between Christina and James are not caught by the September 2020 settlement and continue in the UK.
Under the September 2020 settlement, the parties were to procure JMC and NEL to terminate the resulting trust for the benefit of JMC and NEL over the assets of the nominee companies, and all current proceedings anywhere in the world were to be discontinued, and the nominee companies’ assets divided.
Christina commenced these proceedings on 16 October 2023 joining a range of defendants: Felicite (Bobby’s widow and executrix) as first defendant, Ernest as second defendant, James as third defendant, Teresa as fourth defendant, Edward as fifth defendant and Isabel Harry as sixth defendant. Christina also seeks relief against Felicite under Succession Act 2005 s 59 for an order for family provision out of Bobby’s estate.
It is only necessary in these reasons to examine the relief that Christina seeks against the second defendant, Ernest, in her Statement of Claim, although the relief that she claims against the other defendants is funded on similar contentions. She relevantly claims the following relief against Ernest:
a declaration that Ernest held the assets of JMC and NEL after the death of Robert upon a constructive trust for Camila, Tony, Isabel, Bobby and himself and their lineal descendants, including the plaintiff (Prayer 2); and
a declaration that Ernest holds the settlement moneys received by him pursuant to the September 2020 settlement deed on constructive trust for Christina as one of the lineal descendants of Robert: (Prayer 5).
The relief claimed in Christina’s Prayers 2 and 5 is founded upon two groups of contentions. First, Christina contends that by the time that Ernest first took effective control of JMC, NEL and the nominee companies that he was doing so as the trustee of their assets, which he held on a common intention trust for the benefit of and to guarantee the livelihood of Camila and the second generation of the family and in turn to benefit their lineal descendants, including Christina.
Secondly, Christina contends Ernest made representations in 2003 to induce her (together with James and Edward) to act to her detriment by relocating to Singapore to work for the nominee companies to conserve and develop their assets on the basis that those assets are part of a family legacy defined by the common intention trust. Christina says that both these contentions ground the conclusion that Ernest received and held the proceeds of the September 2020 settlement on constructive trust or under equitable estoppels in the terms of the common intention trust, for the benefit of Robert’s lineal descendants, including her.
Christina contends she can maintain these proceedings because she was not a party to the 2012 proceedings, or the September 2020 settlement, and is therefore not bound by issue estoppels arising out of the Singapore Court of Appeal judgment in the 2012 proceedings, or by the terms of the September 2020 settlement. The present issues do not require this Court to determine the merits of Christina’s claims for relief.
Ernest was served with the Statement of Claim on 27 November 2023 in Singapore, where he was a permanent resident. He died a little over two weeks later, on 13 December 2023.
The applicant, Ms Turner, is named in Ernest’s will of 4 November 2020 as his sole executrix. She was granted probate of Ernest’s estate by the Family Justice Courts of Singapore on 7 February 2024. Under the Probate and Administration Act 1934 (Singapore) s 2 a grant of “probate” is defined as,
Two questions arise on Ms Turner’s January 2025 motion: whether procedural issues prevent Ms Turner from bringing the motion, and the substantive question of whether this Court has jurisdiction to determine this action against Ernest’s estate.
The proceedings were commenced against Ernest. He is therefore the second defendant, not Ms Turner. To that extent Christina’s arguments can be accepted. But Ms Turner has ample basis to bring this application. First, the Court has accepted earlier in these reasons that on the motion in substance Ms Turner put an argument under UCPR*,* r 6.31. That rule specifically provides in UCPR*,* r 6.31(3) that an application for such an order may be made “by any person to whom the deceased party’s liability in relation to the cause of action concerned has passed (whether or not a party to the proceedings)”. Here Christina is certainly arguing (whether it be correct or not and Ms Turner disputes that it is correct) that that liability has passed to Ms Turner, and Christina is therefore in no position to dispute that Ms Turner has standing to invoke UCPR*,* r 6.31.
But one of Ms Turner’s reply arguments is a complete answer to Christina’s argument here: Ms Turner appeals to the inherent jurisdiction of the Court. Ms Turner’s substantive argument on the motion (considered in the next section below) is her contention that this Court does not have jurisdiction over the subject matter of this litigation. Every court, whether superior or otherwise, possesses the authority to decide whether that court’s jurisdiction has been validly invoked: New South Wales v K**able (2013) 252 CLR 118; [2013] HCA 26 at [31]. The first duty of a court in approaching a cause is to consider whether it has jurisdiction: Hazeld**ell L**imited v T**he Commonwealth (1924) 34 CLR 442 at 446. It is proper for a Court to raise the issue of jurisdiction on its own motion: The Official Trustee in Bankruptcy v Nedlands P**ty Limited (in liquidation) (2000) 99 FCR 554; [2000] FCA 599 at [14] – [15] (Finn JA) and Helicopter Resources Proprietor Limited v T**he Commonwealth [2019] FCA FC 25; 365 ALR 233 at [19] – [36] and see M Leeming, Authority to Decide: The Law of Jurisdiction in Australia*,* The Federation Press, 2nd ed, 2020, (“Leeming”) at [2.5], “Jurisdiction to Determine the Court’s Own Jurisdiction”.
Now this jurisdictional issue has been raised, the Court can of its own motion hear the parties on the question jurisdiction, as it has indeed done, treating the motion as a vehicle for that purpose. Bell CJ collected the authorities in relation to the inherent jurisdiction of the Court in Hartnett t*/as* Hartnett L**awyers v B**ell a**s Executor of the Estate of Deacon*-Bell (2023) 112 NSWLR 463 at 123 – 124 [2023] NSWCA 244 [123] (“Hartnett”)*. And Hartnett (at [123] (1), (3), (4), and (7) is authority that the Court’s implied jurisdiction can be exercised in any circumstances where the requirements of justice demand, even in respect of matters that are regulated by the provision of a statute or rules of court as long as it can do so without contravening any such provision and can do so whenever it may be necessary to prevent any injustice occurring with respect to matters which come within its cognizance and as may be necessary for the administration of justice.
Here the terms of UCPR*,* r 12.11 are no obstacle to the Court seeking to hear and resolve the present dispute about its jurisdiction, as it has done, from both Christina and Ms Turner. This jurisdictional argument should take place at the earliest reasonable opportunity before further costs are expended. There is no one better placed than Ms Turner to put the argument that this Court does not have jurisdiction over the assets in Ernest’s estate. Whether Ms Turner’s motion was filed or not, the Court has a duty to consider this issue and should do so.
These reasons now return to the proviso that the defendant executor must also not be sued as a trustee. Ms Turner is not sued as a trustee in the sense described in this proviso. Long Innes J explained in Nagel v Hough (at 424) what circumstances might enliven this proviso to the rule, as follows by reference to the judgment of Lord Selborne in Ewing v Orr Ewing [1883] 9 AC 34:
Ms Turner submits that she cannot be sued in her capacity as executrix of Ernest’s estate for the purpose of these proceedings and therefore a r 7.10 representative order would be futile in any event.
Mr Wilson SC’s submissions that the present issues can be cured by appointing a representative under UCPR*,* r 7.10 is not persuasive. Ernest had not submitted to the jurisdiction of this Court. Now his estate denies that this Court has jurisdiction. But for the application of UCPR*,* r 7.10, Mr Wilson SC cannot point to any basis for this Court to maintain jurisdiction over Ernest’s estate. UCPR*,* r 7.10 is not available to cure this deficiency for the following reasons.
First, UCPR*,* r 7.10 is a procedural provision of this forum and does not confer on this Court jurisdiction over foreign defendants that it does not otherwise have. An order under UCPR*,* r 7.10 ordinarily operates once the Court assumes jurisdiction in proceedings. This is readily illustrated. Appointing someone under UCPR*,* r 7.10, to represent Ernest’s estate in these proceedings, where all the assets of this estate are in Singapore and outside this jurisdiction would be a pointless exercise. The Court would not appoint Ms Turner without her consent. Were someone else to be appointed under UCPR, r 7.10, judgment against them would still not bind the assets of Ernest’s estate for the reasons discussed above.
Secondly, this argument has already been advanced and rejected in binding authority concerning a statutory predecessor of UCPR*,* r 7.10 which is relevantly indistinguishable from UCPR*,* r 7.10. Speaking of the operation of this statutory predecessor, a provision of the Equity A**ct 1880, in Nagel v Hough (at 426) Long Innes J said:
DIRECTS the parties to either agree upon the costs of the proceedings by 17 October 2025 or by the same date to agree upon a timetable of submissions to resolve that issue.
DIRECTS that if the plaintiff and the first defendant wish to provide supplementary submissions in relation to the contest argued between them in July 2024 that they should provide by 12 September 2025 an agreed timetable expiring by 17 October 2024 for the filing of those submissions.