Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163 | Case summary

Medium Neutral Citation: Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163

Hearing dates: 2 October; 10 November, 17 November; 4 December 2025; 20 February 2026

Date of orders: 17 November 2025; 6 March 2026

Decision date: 06 March 2026

Jurisdiction: Equity - Expedition List

Before: Parker J

Decision: See paragraphs [295] to [298]

Catchwords: PRACTICE AND PROCEDURE — jurisdiction — service out of the jurisdiction — appearance — application to withdraw appearance — whether unconditional appearance constitutes submission — leave refused
CONFLICT OF LAWS — anti-suit injunction — negative declaration proceedings in Singapore — whether foreign proceedings vexatious or oppressive — protection of local processes — forum considerations — injunction granted on interim basis
EQUITY — trusts — common intention constructive trust — family-owned corporate group — claim that founder’s “descendants” held beneficial interests in company assets, derived by tracing from their beneficial interests under a constructive trust over shares of those companies arising from the founder’s actions — need for detrimental reliance to found constructive trust — need for specificity of alleged interests of “descendants” — tracing from shares in companies into assets of those companies impermissible — claim summarily dismissed
EQUITY — estoppel — proprietary or equitable estoppel — claim to share of settlement proceeds — need for promise and need for detrimental reliance on promise — claim struck out

Legislation Cited: Civil Procedure Act 2005
Succession Act 2006
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Barnes v Addy (1874) LR 9 Ch App 244
Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336
Compania de Navegacion Palomar SA v Perez de la Sala [2017] SGHC 14
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Evans v European Bank Ltd (2004) 61 NSWLR 75
Flinn v Flinn [1999] VSCA 109
Foskett v McKeown [2001] 1 AC 102
Galati v Deans [2023] NSWCA 13
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Ip v Chiang [2019] NSWSC 1549
Kraft Foods Group Brands LLC v Bega Cheese Ltd [2020] FCAFC 65
Kramer v Stone (2024) 281 CLR 484
Makaritis v Makaritis (No 2) [2022] NSWSC 1690
Murakami v Wiryadi & Ors (2023) 109 NSWLR 39
Muschinski v Dodds (1985) 160 CLR 583
National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209
Penthouse Publications Ltd v McWilliam [1991] NSWCA 222
Perez de la Sala v Compania de Navegacion Palomar SA [2018] SGCA 16
Robertson v Byrne [2022] NSWSC 1713
Shepherd v Doolan [2005] NSWSC 42
Spellson v George [1992] NSWCA 254
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460
Sunland v Prudentia [2013] VSCA 237
Trau v University of Sydney (1989) 34 IR 466
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Vukic v Grbin [2006] NSWSC 41

Texts Cited: Jacobs' Law of Trusts in Australia 7th ed 2006
Spencer Bower and Handley: Res Judicata (6th ed, 2024)

Category: Procedural rulings

Parties: Statement of Claim filed 16 October 2023
Maria-Christina Perez de la Sala (Plaintiff)
Felicite Terrill Perez de la Sala (First Defendant)
James Morgan Copinger-Symes (Third Defendant)
Maria-Teresa Perez de la Sala (Fourth Defendant)
Edward Robert Perez de la Sala (Fifth Defendant)
Maria-Isabel Harry (Sixth Defendant)
Notice of Motion filed 23 July 2025
Maria-Christina Perez de la Sala (Applicant)
Felicite Terrill Perez de la Sala (First 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)
Notice of Motion filed 17 November 2025
James Morgan Copinger-Symes (Applicant)
Maria-Christina Perez de la Sala (Respondent)
Notice of Motion filed 26 November 2025
Felicite Terrill Perez de la Sala (Applicant)
Maria-Christina Perez de la Sala (Respondent)
Notice of Motion filed 26 November 2025
James Morgan Copinger-Symes (First Applicant)
Maria-Teresa Perez de la Sala (Second Applicant)
Edward Robert Perez de la Sala (Third Applicant)
Maria-Christina Perez de la Sala (Respondent)

Representation: Counsel:
Statement of Claim filed 16 October 2023
R Wilson SC/S Hill (Plaintiff)
D B Studdy SC/M Taylor (Defendants)
Notice of Motion filed 23 July 2025
R Wilson SC/S Hill (Applicant)
D B Studdy SC/M Taylor (First, Third, Fourth, Fifth and Sixth Respondents)
Notice of Motion filed 17 November 2025
D B Studdy SC/M Taylor (Applicant)
R Wilson SC/S Hill (Respondent)
Notice of Motion filed 26 November 2025
D B Studdy SC/M Taylor (Applicant)
R Wilson SC/S Hill (Respondent)
Notice of Motion filed 26 November 2025
D B Studdy SC/S Hill (First, Second and Third Applicant)
R Wilson SC/S Hill (Respondent)
Solicitors:
Statement of Claim filed 16 October 2023
L Rundle & Co (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
Mills Oakley Lawyers (Third, Fourth, Fifth and Sixth Defendants)
Notice of Motion filed 22 July 2025
L Rundle & Co (Applicant)
HWL Ebsworth Lawyers (First Respondent)
Mills Oakley (Third, Fourth, Fifth and Sixth Respondents)
Notice of Motion filed 14 November 2025
Mills Oakley Lawyers (Applicant)
L Rundle & Co (Respondent)
Notice of Motion filed 26 November 2025
Mills Oakley Lawyers (First, Second, Third and Fourth Applicant)
L Rundle & Co (Respondent)
Notice of Motion filed 26 November 2025
Mills Oakley Lawyers (First Applicant)
HWL Ebsworth Lawyers (Second and Third Applicant)
L Rundle & Co (Respondent)

File Number(s): 2023/214349

Publication restriction: Nil

JUDGMENT

This judgment deals with a series of interlocutory applications and hearings in proceedings which have an international dimension to them. The parties are related, and, without intending any disrespect, I will refer to them by their given names.
The proceedings concern the estate of Robert Perez de la Sala (“the deceased”; he is also referred to in some of the evidence as “Bobby”) who died in July 2022 at the age of 86. The deceased was a member of an extremely wealthy family. The family wealth derived from an international shipping business run mainly out of Hong Kong and Singapore. The deceased’s estate alone is said to be worth more than $500 million.
The family’s fortunes were founded by the deceased’s father Robert Perez de la Sala (“Robert Snr”). Starting in the early 1920s, he worked his way up within a Hong Kong shipping company named John Manners & Co Limited (“JMC”). By 1940 he had become the majority shareholder and chairman of the board. By the time he died in 1967 he controlled, through JMC and another company, Northern Enterprises Limited (“NEL”), a diversified business empire whose activities included shipping, marine engineering, shipping supplies, commercial and residential real estate, and agency businesses.
Robert Snr and his wife Camila Velasquez de la Sala (“Camila”) had six children, of whom four survived to adulthood. The deceased’s other three surviving siblings were Jerome Anthony Perez de la Sala (“Tony”); Ernest Ferdinand Perez de la Sala (“Ernest”); and Isabel Brenda Koutsos (“Isabel”).
The deceased married Felicite Terrill Perez de la Sala (“Terrill”) in 1966. They had four children: Maria-Teresa Perez de la Sala (“Teresa”, born July 1967); Edward Robert Perez de la Sala (“Edward”, born August 1968); Maria-Christina Perez de la Sala (“Christina”, born August 1969); and Maria-Isabel Harry (“Maria-Isabel”, born January 1971).
The deceased appears to have lived for most of his life in Australia. He and Terrill brought up their children here and they were domiciled in Australia when the deceased died.
Teresa is unmarried and has no children. Edward has three children with his wife Lyndel Perez de la Sala (“Lyndel”). Christina has four children from her marriage to James Morgan Copinger-Symes (“James”), which has ended in divorce. Maria-Isabel has four children from her marriage to Richard Lloyd Harry (“Richard”).
Teresa, Edward and Maria-Isabel live in Australia, although Edward previously lived in Singapore. Since finishing her university education in Sydney, Christina has lived overseas, including in England, Oman, Singapore, and England again. When the present proceedings were commenced in this Court in 2023, she gave her address as being in Singapore. I was informed in the course of the hearing that she now lives in France.
James (I assume) comes from an English family but was born in Berlin and grew up in Singapore, Bermuda and Malaysia. He lived with Christina in London and Singapore while they were married. He now lives in Italy. He has never lived in Australia, although he has visited here from time to time.

Background and procedural history

This is the fourth interlocutory judgment to be published in the proceedings. Previous judgments were delivered last year by Richmond J ([2025] NSWSC 835 (22 July, “J1”) and [2025] NSWSC 853 (31 July, “J2”)); and Slattery J ([2025] NSWSC 1018 (8 September, “J3”)). These judgments, and in particular that of Slattery J, set out some of the historical and procedural background. For present purposes, the following summary should be sufficient.
Robert Snr’s second son Ernest followed him into the family business in the 1950s. When Robert Snr died in 1967, Ernest took his place as the controller of the business. Later Ernest caused a corporate restructuring to take place, whereby assets of JMC and NEL were transferred to six companies which were incorporated in various different jurisdictions around the world (referred to in earlier judgments as “the Nominee Companies”). The Companies are:

(1) Compania de Navegacion Palomar SA (PAL), incorporated in Panama;

(2) Cosmopolitan Finance Corporation (CFC), incorporated in the British Virgin Islands;

(3) Peninsula Navigation Company Private Limited (PEN), incorporated in the British Virgin Islands;

(4) Dominion Corporation SA (DOM), incorporated in Panama;

(5) John Manners & Co (Malaya) Ltd (JMM), incorporated in Singapore; and

(6) Straits Marine Company Private Limited (SMC), incorporated in the British Virgin Islands.

By 2011, the deceased’s son and daughter, Edward and Christina, and his son-in-law, James, were living in Singapore and working with Ernest in the family business. At this point there was a falling out. Ernest transferred assets worth several hundred million dollars from the Nominee Companies into his own personal name.
These events resulted in 2012 in proceedings in the High Court of Singapore (“2012 proceedings”). The plaintiffs in the 2012 proceedings were the Nominee Companies, which were apparently controlled by Edward, Christina and James. They claimed orders requiring Ernest, as defendant, to account for the assets of the Companies appropriated by him.
Ernest brought a cross-action against the Nominee Companies and Edward, Christina and James personally. In that cross action he alleged breach by Edward, Christina and James of their duties as directors of the Nominee Companies. They were alleged to have mismanaged the Companies’ affairs.
For their part, Edward, Christina and James brought a further cross-action against Ernest for damages for misrepresentation. They alleged that they had been induced to move to Singapore and to work in the family business by representations made by Ernest which had been false.
Judgment was delivered by Quentin Loh J in the High Court of Singapore in 2017: Compania de Navegacion Palomar SA v Perez de la Sala [2017] SGHC 14. There were appeals by several parties which resulted in a judgment of the Court of Appeal of Singapore in 2018: Perez de la Sala v Compania de Navegacion Palomar SA [2018] SGCA 16. The eventual result was that the claim by the Nominee Companies against Ernest for an account succeeded. Ernest’s cross-action and the further cross-action by Edward, Christina and James both failed.
Ernest’s main defence to the claim against him for an account was to allege that he had been the beneficial owner of the assets appropriated by him from the Nominee Companies.
One of the issues which arose concerned Robert Snr’s intentions for the future of the family business empire (controlled by him through his majority stake in JMC and his ownership of NEL). The evidence included various letters written by Robert Snr to his children in the 1950s. Among other things, the letters: (1) stated that [NEL’s] 40% shareholding in JMC would “remain in the Lasala family until doom’s day if my sons and my sons’ sons so desire it even if they do not choose to actively work in JMC” (November 1950); (2) stated that it was his wish that NEL “should always remain a FAMILY undertaking and guarantee for the livelihood and wellbeing firstly of ALL my descendants and then other deserving relatives” (July 1957); and (3) described NEL as a “sacred trust for the sole benefit of the family and something to fall back on if everything else turns sour” (May 1959).

… In brief, we find on the main claim that the Companies are the legal owners of the monies, that the defendant’s defence (that he was the full beneficial owner of all the monies) was not made out, and that the monies should therefore be returned to the Companies. We do not agree, however, that the Companies own their assets absolutely; rather, they hold the assets on trust for [JMC and NEL], from which the assets were originally transferred for no consideration and not as gifts, and it appears that the defendant, his siblings and his mother’s estate have beneficial interests in these two companies. With that said, the way the parties have pleaded their cases makes it unnecessary for us to make findings as to the precise proportions of the beneficial interests in the two other companies that are the source of the Companies’ assets, nor does this need to be dealt with during the taking of accounts before the Judge subsequent to our judgment.

Later in the judgment the Court of Appeal expressed its conclusion in more detail (at [155]-[156]):

... Since Ernest’s defences based on sole beneficial ownership of the shares and/or assets of the Companies fail, the Companies, which have legal title, succeed in their claim for breach of fiduciary duties against Ernest. CA 35 [one of the appeals] is allowed to that extent. Ernest therefore must account to the Companies regarding the assets and what profits were made on them (if any), and return the assets to the Companies after the account has been taken. However, we find that the Companies are not the absolute owners of the assets and that they take these assets subject to a resulting trust in favour of NEL and JMC.

We make no finding as to the precise distribution of beneficial interests in the Companies and their assets. That is unnecessary for the purposes of the present proceedings. Given, for instance, the fact that JMC was also legally owned by other entities outside the de la Sala family, the exercise of untangling the precise beneficial interests may not be straightforward. We also observe that, although the non-parties Isabel and Tony have now intimated that they may attempt to enforce their own rights in the disputed assets and/or shares if Ernest is not successful here, they may face some difficulties given the stance they have consistently taken in the present proceedings. These are, however, all matters to be taken up in separate proceedings if those concerned see fit to do so.

It followed that Ernest had to account to the Nominee Companies for the assets appropriated by him. And picking up on what the Court of Appeal had said, further proceedings were also instituted (the 2019 proceedings) for the purpose of determining the precise interests of JMC and NEL in the assets of the Nominee Companies under the resulting trust which the Court of Appeal had found to exist.
The plaintiffs in the 2019 proceedings were the six Nominee Companies. It appears that no defendant parties were formally named. The process in the proceedings was served on JMC, NEL and other potentially interested parties, including members of the Perez de la Sala family individually. Ernest and the deceased both entered appearances in the proceedings.
The accounting process in the 2012 proceedings and the fresh 2019 proceedings continued on in the High Court of Singapore for 18 months. By this point Christina had separated from James and had fallen out with all the other members of her family. The falling out was exceptionally bitter. Indeed, rather than James being excluded from the family as a result of the breakdown of his marriage, Christina was excluded instead.
In September 2020 Christina applied to be joined as a party to the 2019 proceedings. She says that she did so in order to assert her own personal claim to a share of the assets which were the subject of the proceedings. But only three days later a settlement was reached between the existing parties. This involved dividing up the assets the subject of the proceedings between the deceased and Ernest, each of whom was to receive hundreds of millions of dollars. The other siblings, Tony and Isabel, appear to have received little or nothing.
As a result of the settlement, the proceedings were stayed and three months later, in December 2020, they were formally discontinued. Christina’s application to be joined as a party was never adjudicated upon.
The settlement was recorded in a deed of settlement dated 11 September 2020. A copy of the deed was in evidence before me. The parties to it were the four children of Robert Snr, namely: the deceased; Ernest; Tony; and Isabel.
The deed provided (cl 2.1) that it was to constitute a full and final settlement of all actions and claims between the parties. The most significant provisions were as follows.
The parties agreed that the deceased would be entitled to all of the shares in the Nominee Companies, JMC, NEL and various other named companies (cl 2.2). The deceased then undertook to procure the boards of directors of JMC and NEL to execute a deed terminating the resulting trusts in their favour over the assets of the Nominee Companies.
These provisions gave the deceased effective economic ownership of the corporate group. Clause 2.3 purported to declare that he was the beneficial owner of all assets held by the companies the subject of the settlement (cl 2.3). I say “purported” because it is difficult to see how this provision, taken literally, would be possible when the parties themselves were not party to the proceedings, but nothing appears to turn on this for present purposes.

Application to withdraw appearance by James

Evidence: As already noted, James was first named as a defendant in the proceedings, alongside Christina’s three siblings, when SC1 was filed. That occurred on 16 October 2023. Two days later, on 18 October, the proceedings were before Kunc J for mention. There was no appearance for any of the newly named defendants and the proceedings were adjourned for further directions before Slattery J on 6 December.
On 17 October, Christina’s solicitor in these proceedings, Mr Ben Dornan of L Rundle & Co, wrote to James enclosing a copy of the statement of claim. The letter was addressed to James at a property in Berkshire in England, but was actually only sent by email. The email address was presumably the email address Mr Dornan had had been given for James by Christina.
In the email, Mr Dornan invited James, in order avoid the need for personal service, to acknowledge service of the statement of claim by return email, or to have any legal representative he may have retained on his behalf contact L Rundle & Co. On 19 October, Mr Dornan sent a follow-up letter, enclosing a copy of the orders made by Kunc J on 18 October, and on 27 October, he sent a further follow-up letter.
By this point, the sums of money which James had received from the deceased before his death, and from Terrill after the deceased’s death, had become the subject of proceedings in London (in the Central Family Court of England and Wales). Christina had sought to have the previous property settlement between her and James altered to take account of those payments. This was resisted by James. Terrill intervened in support of her former son-in-law.
For the purposes of defending Christina’s application in the London proceedings, James, through his London lawyers, sought disclosure of any documents, including statements or affidavits, filed on her behalf in these proceedings. The request was made in a questionnaire administered to Christina for the purposes of the London proceedings. In a formal response to the questionnaire given on Christina’s behalf by her London lawyers on 7 November, she stated:

The Respondent [Christina] is unable to produce documents from the NSW proceedings without the consent of that Court or such other means as will not result in her breaching the implied Harman undertaking. The Applicant [James] has been named as a Defendant to the NSW proceedings although he has not yet filed an appearance. When the Applicant enters an appearance in NSW he will be served with all statements and evidence filed in NSW.

The solicitor acting for James in the London proceedings was Ms Hannah Sisk of the firm Keystone Law. On 17 November, not having received any response to any of the emails addressed to James personally, Mr Dornan wrote to Ms Sisk. He enclosed a copy of the statement of claim and asked whether she had instructions to accept service.
There was no immediate response from Ms Sisk. On 22 November, Mr Dornan wrote to Terrill’s solicitors in these proceedings, HWL Ebsworth (“HWLE”), concerning the upcoming hearing on 6 December. He advised that, despite efforts to serve the new defendants, only Edward had been served. He stated that, if there was no acknowledgement of service by the other additional defendants (including James), the plaintiff would file a motion seeking orders for substituted or deemed service, and bring the motion before Slattery J on 6 December.
On 30 November, HWLE replied. HWLE noted what Mr Dornan had said in his letter of 22 November, and asked to be updated on the question of service on the remaining defendants.
The letter also raised the question of access to material in the London family law proceedings. HWLE stated that both the material served in support of Christina’s claim for family provision, and her pleaded equitable claims in SC1, were relevant to her financial position for the purposes of those proceedings. The circumstances were such that the parties should be released from their confidentiality obligations under Harman v Secretary of State for the Home Department [1983] 1 AC 280 (at least in Australia, it is an implied obligation, not an implied undertaking: Hearne v Street (2008) 235 CLR 125 at [97]). In those circumstances HWLE saw no reason why Christina could not consent to the material in these proceedings being made available in the London family law proceedings, and vice versa.
On the same day, Ms Sisk responded from London to Mr Dornan’s letter of 17 November. She stated: “We are instructed that we may accept service on behalf of our client”.
On the following day, Mr Dornan replied. He formally enclosed, by way of service, SC1 and the accompanying notice to the defendant, pursuant to the rules as applicable to extraterritorial service of process. He advised that the proceedings were listed for directions before Slattery J on 6 December.
On the same day, 1 December, Mr Dornan replied to HWLE’s letter of the same day. He advised that only Maria-Isabel remained to be served. Concerning the issue about access to court documents, he wrote:

While there may be some merit to the suggestion that the parties seek by consent to be released from the Harman undertaking in multiple jurisdictions including the United Kingdom and Australia, this will not be considered until such time as Mr Copinger-Symes has appeared in the New South Wales proceedings.

The notice of appearance eventually filed for James is signed by him and bears the typewritten date 5 December 2023. The evidence does not indicate precisely when James signed the document, and it was not filed until two days later.
When the proceedings came before Slattery J on 6 December, there again was no appearance for any of the additional defendants joined the previous October. His Honour extended the timetable as between Christina and her mother, and listed the proceedings for further directions on 20 February the following year. He ordered that any party that filed an appearance in the proceedings might file a motion for interlocutory relief from the Court, returnable on that day, and directed that Terrill provide copies of the orders to all other defendants in the proceedings.
James’ notice of appearance was filed with the Court on the following day, 7 December. The filing was done electronically. There was no evidence whether this was done by James himself or by someone acting on his behalf. The notice described James as being self-represented. It gave his address as “C/O” Terrill’s address in Carrington Avenue, Mosman.
Also on 7 December, a procedural hearing took place in the London proceedings, before his Honour Judge Hess of the Central Family Court. Mr R Todd KC appeared for James, and Mr J Warshaw KC for Christina.
One of the issues which arose at the hearing concerned access to documents from these proceedings. Christina’s legal representatives had prepared a draft minute of order which recited that James had submitted to this Court’s jurisdiction for the purposes of the proceedings. That was vehemently contested on James’ behalf by Mr Todd KC.
The transcript records the following exchange (emphasis added):

MR WARSHAW: Mr Todd reports that the husband has entered an appearance. He apparently did not enter an appearance, although we understood he was trying to enter an appearance, so we are hoping that he will [be] entering an appearance. There is a directions hearing in February, there was a directions hearing the day before yesterday and that is all we know, that there is a further directions hearing in February.

MR TODD: The husband is entering an appearance but not submitting [to] jurisdiction so the points that my learned friend put in their draft order are wrong. He is entering an appearance for the purpose of challenging jurisdiction.

JUDGE HESS: Okay.

MR TODD: So he is not submitting.

Later in the course of the argument, the transcript records Mr Todd as saying (emphasis added):

… The first point … the wife can agree to irrespective and that is that she, and indeed the husband, are going to mutually seek release from any implied undertaking in order that papers disclosed in Australian proceedings may be referred to in these proceedings. They can go out and do that, there might be reasons in Australia why they cannot do it but they can certainly agree to it now. What they cannot do is by this side wind to obtain the husband’s submission to Australian proceedings, which is he is expressly contesting. …

In the end, no order was made about the subject and it was left for further discussion between the solicitors for the parties.
The next evidence to which I was referred consisted of a series of emails from James to Mr Dornan, and which began about five weeks later, in mid-January 2024. In his first email, which was laced with gratuitous personal criticism of Mr Dornan and his firm, James said that he was unable to comprehend the claims made against him by Christina in SC1. He referred to what he described as the “dismissal” of Christina’s claims by the Singapore High Court and Court of Appeal. He demanded to know the basis for her claims. He ended:

Lastly, this email should not in any manner be taken as any acceptance that your client’s vexatious & ridiculous claim has any merit or should be subject to the jurisdiction of NSW. It’s completely ludicrous.

Further emails in the same vein followed on 19 and 25 January.
By early February, James and Edward had retained the services of a Singaporean lawyer, Mr Nicholas Poon, of the firm Breakpoint LLC. On 13 February, the Singaporean anti-suit proceedings were commenced, with the plaintiffs initially being Edward and James.
Two days later, on 15 February, Mr Poon replied to an earlier letter from Mr Dornan concerning the equitable claims in the present proceedings. Mr Poon stated:

8. … in relation to communications with our client, James Morgan Copinger-Symes, concerning the NSW Action, please send communications to our client directly. Our client reiterates that notwithstanding his entry of appearance, he does not accept, submit or otherwise consent to the New South Wales Court’s jurisdiction over him. Your client knows that our client had entered an appearance purely as a result of discussions between their respective lawyers in ongoing UK proceedings. Our client’s UK lawyers had made it clear to your client’s UK lawyers that any appearance entered was administrative and to facilitate the ongoing UK proceedings, does not constitute an acceptance that he had been properly served or consent to the New South Wales Court’s jurisdiction over him, and that he reserved his right to challenge the New South Wales Court’s jurisdiction at the appropriate time and forum. For the avoidance of doubt, nothing in this communication constitutes or should be taken as confirmation of instructions to accept service (personal or otherwise) of any Court papers filed in or relating to the NSW Action.

On 19 February, Mr Dornan wrote to HWLE concerning the upcoming hearing before Slattery J. After quoting the paragraph from Mr Poon’s letter of 15 February (which I have set out above), Mr Dornan stated:

Since you have confirmed that you do not have instructions to accept service of any Singapore Court papers, our clients will proceed to serve any Court papers filed on your client and without giving further notice to you.

At the directions hearing before Slattery J on 20 February, counsel appeared for James and Christina’s siblings on the basis that they did not submit to the jurisdiction of the Court. A direction was made allowing Christina to apply for anti-suit relief, but it is difficult to see how this would have been possible given the anti-suit orders in place against Christina in Singapore. At all events, no such application came forward.
In March, the correspondence between James and Mr Dornan resumed. James continued to maintain that the Court had no jurisdiction over him. He asserted that he had only entered an appearance so as to be able to obtain access to the documents in these proceedings for the purposes of the London proceedings. For his part, Mr Dornan made no application to bring the questions of service on and appearance by, James, to a head. Those questions appear to have remained in abeyance, until they were raised in the course of the hearings before me as I have described.
In his affidavit of support of the application, James deposed (and it is not disputed) that he has never lived in Australia, and has no relevant connections with this country. Concerning the December 2023 notice of appearance he deposed:

On 5 December 2023, I signed the Appearance form for these NSW proceedings because I:

a. had read the Plaintiff’s 7 November 2023 replies to the Questionnaire [quoted at [101] above];

b. had read the letter from the Plaintiff’s lawyers dated 1 December 2023 [quoted at [108] above];

c. thought that if I did not file the Appearance in these NSW proceedings, then the Supreme Court of NSW would be unable to make orders on 6 December 2023 allowing the Plaintiff to provide copies of documents she filed in these NSW proceedings for the purpose of the UK Proceedings.

Submissions: There was some debate between counsel for the parties about whether, apart from voluntary submission, Christina’s claim against James was within the jurisdiction of the Court. Counsel for Christina relied in that regard upon various grounds for extraterritorial service in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (see r 11.4 and sch 6).
But this was very much an alternative position. Counsel’s primary argument was that no question of jurisdiction arose because James had voluntarily submitted. In the end, I did not understand counsel for the defendants to dispute that, if the application to withdraw James’ notice of appearance failed, the debate about the Court’s jurisdiction under the Rules would fall away. Given the conclusion which I have reached, it is unnecessary to say anything further about the topic.
Putting these matters aside, the argument presented by counsel for the defendants in support of the application was a simple one. Counsel invited me to accept that, as James deposed in his affidavit, he only entered the appearance because of a belief that it was a necessary step to obtaining release of the documents filed by Christina in these proceedings, so that they could be used in the matrimonial property proceedings in London. James had no intention to submit to the jurisdiction of the Court. The submission was that, in effect, James had entered the appearance by mistake, although counsel did not expressly use that term.
In their response, counsel for Christina first drew my attention to Ms Sisk’s email to Mr Dornan of 30 November 2023 stating that she had instructions to accept service. Counsel submitted that this amounted to an agreement to accept service for the purposes of UCPR r 10.6, which had been taken up by Mr Dornan the following day. In counsel’s submission, that service would remain effective, even if, for some reason, the Court concluded that James was entitled to withdraw the subsequent notice of appearance.
But counsel submitted that the Court should not be so satisfied. Counsel pointed out that James had retained law firms to act for him in London and also in Singapore (at least, from February 2024). And he appeared to have received assistance from Mills Oakley in conduct of these proceedings, at least from March 2024. This last submission was based on an affidavit served by James in March 2024, which was witnessed by a solicitor from Mills Oakley.
Counsel argued that James had simply made a forensic decision to file the notice of appearance on 7 December 2023. There was no justification for the Court allowing him to go back on that decision.
Counsel also raised delay as a discretionary answer to the application. Counsel submitted that James had been challenged in correspondence prior to the hearing on 20 February 2024 about having entered an appearance, but took no action to withdraw the appearance on the ground of alleged mistake at the time.

Anti-suit application by Christina

Submissions: The submissions from counsel for Christina started with the High Court decision in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. In that case the High Court laid down that there are two potentially available bases for the grant of an anti-suit injunction. One is the inherent jurisdiction of the Court to protect its processes (at 391-392). The other is the equitable power to restrain proceedings which have been brought contrary to good conscience (at pages 392-394). Counsel relied on both in the present case.
Counsel submitted that, under the inherent power, a real possibility of inconsistent findings in the Australian and the foreign proceedings was sufficient to justify the grant of an injunction. They relied in particular on Kraft Foods Group Brands LLC v Bega Cheese Ltd [2020] FCAFC 65 at [63], [104]-[109].
In the present case, counsel submitted that there was a “complete overlap” between the two proceedings. The only relief sought in Singapore consisted of negative declarations which were the mirror image of the claim made by Christina in these proceedings.
In these circumstances, in counsel’s submission, the bringing of the Singapore proceedings was prima facie vexatious and oppressive. The onus therefore shifted to the defendants to identify some proper basis for bringing the proceedings. In counsel’s submission, no such justification existed.
Counsel acknowledged the finding by Loh J that Robert Snr’s correspondence did not amount to a declaration of trust. Counsel appeared to accept the defendants’ contention that it created an issue estoppel. Indeed, Christina's own pleaded case relies upon issue estoppels said to derive from other findings by the Singaporean Courts. Rather, counsel submitted that Loh J’s decision only ruled out an express trust. It said nothing about the common intention constructive trust now pleaded by Christina as the foundation for the descendants’ trust claim.
Counsel acknowledged that the defendants might contend that the issue estoppel went further. But this was a matter of defence which required pleading. Once pleaded, it could be decided in these proceedings.
Counsel referred me to the discussion in CSR at 397-398 about the need for an Australian court, faced with an application for an anti-suit injunction against proceedings in a foreign court, to determine whether it (the Australian court) is the “more appropriate” forum (the test in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460), or, at least, is not a “clearly inappropriate” forum (the test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). At 398 the Court stated:

398. In cases where anti-suit injunctions are sought to protect the proceedings or processes of a court, no question arises whether that court is an appropriate forum for the resolution of that issue: it is the only court with any interest in the matter. Subject to that consideration, … before granting an interlocutory anti-suit injunction, an Australian court should consider whether it is an appropriate forum, in the Voth sense, for the resolution of the matter in issue ….

Counsel submitted that, as a result, it was not relevant to the granting of an anti-suit injunction sought against the defendants, to the extent to which it relied upon the inherent power, to ask whether this Court was a more appropriate forum than the Singapore High Court for the conduct of the litigation.
Counsel acknowledged, however, that this question would arise if it were necessary to rely on the equitable power. But counsel submitted that, for that purpose, this Court was indeed the more appropriate forum. Counsel identified various connecting factors which, they contended, led to this conclusion. These included:
The deceased had been domiciled in New South Wales and probate had been granted here.
Terrill, the deceased’s executor, was likewise domiciled here. Moreover, all of Christina and her siblings were brought up here, and “many” of the representations upon which Christina relied had allegedly been made here.
All defendants except James were domiciled in Australia. According to Terrill’s affidavit as administrator, the proceeds of the settlement had largely, if not entirely, been repatriated to Australia following the settlement.
Christina’s family provision application was properly brought in this Court (and indeed could not be brought in Singapore) and there was a significant overlap between that claim and the equitable claims.
Counsel also addressed choice of law questions. In their submission, there was a complicated matrix of fact, in which some, but not necessarily all, of the relevant representations had been made in Australia. Counsel emphasised, however, that the equitable claims were claims in personam. In counsel’s submission, the general rule was that such claims were governed by the lex fori, that is, the law of New South Wales. Counsel acknowledged that in some circumstances, equitable claims founded on foreign contracts, fiduciary relationships, and torts, may be governed by foreign law (citing Murakami v Wiryadi & Ors (2023) 109 NSWLR 39 at [128]-[146]), but the present case was not of that character.
In any event, counsel submitted that it was not appropriate in an application of the present type, to determine in any final way what law would apply to Christina’s claims, and what, if any, practical consequence there would be if foreign law were involved (Murakami at [65]). As in that case, the pleadings had not closed. This factor therefore did not present any obstacle to the grant of anti-suit relief.
Counsel for the defendants acknowledged the two separate bases on which an anti-suit injunction could be granted. But they submitted that on neither basis was an injunction warranted in the circumstances of the present case. So far as the Court’s inherent power was concerned, counsel submitted that overlap between the proceedings was relevant but did not itself amount to the proceedings being vexatious or oppressive, such as to justify the making of an order: [2013] VSCA 237 at [442]. It was necessary to have regard to the facts of the case: at 392, approving a statement by Gummow J in (1989) 22 FCR 209 at 232. They also pointed out that the power to grant an anti-suit injunction was one to be exercised with caution: at 396*.*

397. Ordinarily, an interlocutory injunction preserves the subject matter of a proceeding pending its final adjudication. Where, however, the issue is whether a matter should be litigated in the courts of one country or of another and application is made for an interlocutory anti-suit injunction by reference to considerations which will or may fall for determination in proceedings in that other country, the injunction, if granted, operates with the consequence that the matter in question is heard and determined in the court granting the injunction. Certainly that is so with respect to that aspect of the matter advanced in support of the injunction. Thus, an interlocutory anti-suit injunction is effectively a final determination as to where the matter or some particular aspect of it is to be.

In the present case, however, this did not need to be so. As already noted, I had some doubts about whether the equitable claims as pleaded were viable. I granted anti-suit relief which would extend only up until a strike-out or summary judgment application could be brought and determined. My decision is therefore interlocutory (or perhaps better described as interim) both in substance and in form.
It is not therefore not necessary for me to reach a conclusion on any disputed issues fact or law on a “final” basis. Accordingly, I treat the application as very much influenced by considerations of case management, in circumstances where the final shape of Christina’s case is unknown.
Although counsel for Christina appeared to accept the proposition that the decision by Loh J on Robert Snr’s 1950 correspondence gave rise to an issue estoppel, I think that proposition is questionable.

(1) The issue appears to have been raised as a response to Ernest’s contention that he was the beneficial owner of the assets of the Nominee Companies. That contention failed for other reasons. Thus the rejection of the trust argument was not a necessary step in the orders ultimately made by the Singaporean Courts. Presumably that is why it was not the subject of decision by the Court of Appeal. As such it arguably could not give rise to an issue estoppel: see Spencer Bower and Handley: Res Judicata (6th ed, 2024) at [8.23]-[8.25].

(2) A related point concerns the parties to the proceedings. To the extent that there was a contest about the trust argument it was a contest between Ernest on the one hand and Christina (together with Edward and James) on the other (this was how it was described by Loh J; I am not sure whether the Nominee Companies may not, strictly speaking, have been the opposing parties). Ernest is no longer a party to these proceedings. Furthermore, the deceased, Teresa and Maria-Isabel were not parties to the 2012 proceedings at all.

It is also, I think, significant for the outcome of this application that the descendants’ trust claim changed substantially between the original version of the statement of claim (SC1) and the amended version (SC2). The constructive trust originally claimed would have covered the subject assets of the family business in the hands of both Ernest and the deceased. The claim against Ernest has now been withdrawn, leaving claims directed solely to the share of the assets received by the deceased in the settlement (and allegedly paid on to James’ and Christina’s siblings).
Such claims were not the focus of the Singaporean judgments. As already noted, the deceased was not even a party to the 2012 proceedings which resulted in those judgments. At no point were the Singaporean Courts invited to determine, as between Christina and her father, what entitlements she may have had to assets of the family business.
This is particularly clear so far as the estoppel claim is concerned. That claim rests on alleged promises to Christina by her father, and Christina’s alleged reliance to her detriment on those promises. Any reference to these issues in the earlier Singaporean proceedings would have been purely incidental.
Furthermore, the underlying facts, even if they do not ultimately sustain an estoppel, might be a ground for relief in the family provision claim (see Brereton J in Vukic v Grbin [2006] NSWSC 41 at [38]). Those facts can therefore be presented by Christina in these proceedings whether or not the estoppel claim is determined in Singapore. For this reason alone, there will inevitably be duplication and wasted costs if the current Singapore proceedings are pursued while the family provision claim is pursued in this Court.
In these circumstances, if the estoppel claim is viable I am clearly of the view that it should proceed in this Court.
The position is less clear, admittedly, for the descendants’ trust claim. That claim does involve consideration of whether the family business assets were subject to a trust during Robert Snr’s lifetime, and if so whether that trust continued to subsist during Ernest’s period of management of the companies. To that extent the underlying facts were the subject of consideration in the earlier Singapore proceedings.
Nevertheless the claim is formulated in different terms from the claims which were adjudicated in the Singaporean proceedings, and involve some different parties. Arguably, at least, the issues are not identical.
Furthermore, the descendants’ trust claim is a claim to beneficial ownership of property forming part of an estate which is being administered in this jurisdiction and where there are already proceedings involving a family provision claim to the estate. It is common practice to join claims which involve determining what assets an estate has with a family provision claim. That is because, until the extent of the estate has been determined, the Court cannot sensibly decide whether the provision which is under challenge is appropriate without considering the value of the estate as a whole.

Application for summary dismissal of equity claims

Alleged contempt by defendants

Submissions: Counsel for Christina contended that the Court should not entertain the summary judgment application because the defendants were in contempt of the anti-suit injunctions which I granted on 17 November. The relevant order was that which prevented the defendants from “taking any steps to prosecute or maintain the relief sought” in the Singapore proceedings.
The contention relied upon a letter on behalf of the defendants by Mr Poon to the Registrar of the High Court of Singapore concerning the Singapore anti-suit proceedings. The letter was sent on 25 November, following the hearing and the grant of the anti-suit orders on 17 November, and relevantly stated:

We confirm that the New South Wales Court has made orders against the Claimants in OC 871 [the November 2024 proceedings], including an order restraining the Claimants from taking further steps to prosecute or maintain the relief sought in OC 871 until further order (“ASI”). Other orders were also made, in connection with the ASI, including an order in relation to the jurisdiction of the New South Wales Court over the 2nd Claimant [a reference to my refusal of the application to withdraw James’ notice of appearance]. In this regard, the Claimants are considering their next steps in New South Wales, including in relation to the ASI as well the jurisdiction of the New South Wales Court over each of them. The 2nd Claimant, in particular, maintains his position that he is not subject to and does not consent to the existence and/or exercise of the New South Wales Court’s jurisdiction over him, just as he has done since 2024.

As the Court knows, the orders of a foreign Court, such as the ASI, acts in personam against the Claimants, not against the Singapore Court. The Singapore Court therefore is not obligated to react to the ASI in the manner requested by the Defendant. Nevertheless, whilst the Claimants take legal advice and consider their next steps, the Claimants respectfully seek the Honourable Court’s permission for 2 weeks, i.e. until 8 December 2025, to update the Court of the Claimants’ intentions in relation to the progress of OC 871. In the meantime, the Claimants respectfully seek a suspension of the deadline given for the filing of the Affidavits of Evidence-in-Chief.

Counsel for Christina emphasised that the Court’s order of 17 November applied to steps taken, not only to “prosecute” the relief sought in the Singapore proceedings, but also to “maintain” that relief. Counsel submitted that by seeking a period of two weeks to advise of their intentions, the defendants were seeking to hold their claims (including anti-suit relief) open, with the possibility of continuing to pursue those claims. Doing so, in counsel’s submission, amounted to a step taken to “maintain” the relief sought in the proceedings.
Counsel also relied upon the statement that James did not consider that this Court had jurisdiction with respect to the claim against him, contending that this was an additional contempt on James’ part. Counsel characterised it as a direct challenge to the determination made by the Court on 17 November. Counsel submitted that the procedural situation made this clear: James was pursuing the summary judgment application in this Court while he was denying the Court’s jurisdiction in Singapore.
It is often said that a party who is in contempt of orders made by a court should not be heard on any other application to that court while the contempt subsists. In the past this has been described as an absolute rule, not merely a matter of discretion.
I considered the issue in Ip v Chiang [2019] NSWSC 1549 at [60]-[115], where I discussed some of the authorities. I concluded (at [115]):

… where a party is in default of an order of the court, whether to hear that party is ultimately a matter of discretion. It is open to the Court to decline to entertain an application by a party in default in order to secure compliance with earlier orders, but the Court is not limited to that approach.

Counsel for Christina accepted what I said in Ip about the supposed rule. They submitted however that, in the exercise of discretion, I should still refuse to entertain the defendants’, or at least James’, summary judgment application. The delay sought in Singapore was only for a period of a few weeks, but in both cases an important issue of principle was at stake.
Counsel for the defendants urged me to reject these contentions. Counsel pointed out that Mr Poon’s letter itself contained an express acknowledgement of the injunctions and their effect on the defendants in personam. All that the defendants had asked for was for the proceedings to be adjourned while they considered their position. The request, in counsel’s submission, did not amount to an attempt to “maintain” the relief sought in the proceedings.
As to the alleged contempt by James, counsel submitted that at most the statement conveyed that James did not agree with the Court’s decision of 17 November. There was no suggestion that James would not comply with the orders, and non-compliance, rather than disagreement, was the essence of contempt in this field.
Finally, counsel submitted that if there had been any contempt, the Court should not, as a matter of discretion, decline to hear the applications.
Evaluation**:** The anti-suit injunctions which I granted on 17 November were formulated in the terms which had been sought by Christina in her notice of motion. Counsel for the defendants did not make any submissions about those terms. The reference to taking steps to “maintain” the Singapore proceedings thus passed through unchallenged.
The use of the word “maintain” may, in hindsight, have been unnecessary. But accepting that it appears in the terms of the orders, and that there has been no application to vary those terms, it still must be read in its context.
One thing is completely clear. The anti-suit orders did not go so far as to oblige the defendants to withdraw the Singapore proceedings. Nor could those orders properly have done so: even if they had been granted on a “final” basis (as discussed in CSR) they would have operated only until the completion of these proceedings. It would not have been proper for them thereafter to have prevented the defendants from pursuing residual matters arising in the Singapore proceedings, such as costs.
In fact, the injunctions granted on 17 November were only granted “until further order”. In my opinion it would be absurd to construe the term “maintain” so as to prevent the defendants from keeping the Singapore proceedings alive for the duration of the anti-suit injunctions in this Court. The first contempt point fails.
I also agree with counsel's submission concerning James’ continued denial that the Court has jurisdiction over him. That could only have been a statement of opinion. As counsel submitted, it did not involve, or necessarily even threaten, any failure to comply with orders made, and to be made, by the Court.

Descendants’ trust claim

Pleading: The prayers for relief in SC3 begin with two declarations which correspond with Steps One and Two in the descendants’ trust claim, as identified above:

A declaration in the events which have occurred that from about 1957 up until his death in 1967, the late Robert Perez de la Sala (Robert Snr) held his shareholdings in [JMC] and the issued shares in [NEL] upon a constructive trust for his wife, the late Camila Velasquez de la Sala (Camila), their four children, Jerome Anthony Perez de la Sala **(**Tony), Ernest Ferdinand Perez de la Sala, Isabel Brenda Koutsos (Isabel), the late Robert Perez de la Sala (the d****eceased) and their descendants including the plaintiff.

A declaration in the events which have occurred that the estimated amount of US$584,582,952 held as at August 2011 by the five companies listed in paragraph 32 of the pleading hereunder and referred to as PAL, CFC, SMC, DOM and JMM were held by those companies upon resulting trust for NEL and JMC but subject to a constructive trust in favour of the descendants of Robert Snr including the plaintiff.

No declaration is sought to reflect the alleged trust over the assets appropriated by Ernest (Step Three). But the declaration sought in prayer 4 reflects Step Four, focusing on the amount received by the deceased from the settlement:

4. A declaration that the First Defendant as executor of the estate of the deceased holds A$502,656,341 or such other sum the Court finds as being the settlement moneys received by [the] deceased as a result of a Deed of Settlement dated 11 September 2020 together with 2000 ordinary shares in [JMM] having a value of $209,248 on constructive trust for the plaintiff and her siblings [Teresa, Edward and Maria-Isabel] as children of the deceased and descendants of Robert Snr as tenants-in-common in equal shares or in such other proportions as is found to be due upon the taking of accounts.

Prayer 5 seeks an order that an account be taken in accordance with Terrill’s alleged liability with respect to the settlement monies. Prayer 5A seeks a consequential order that Terrill pay over to Christina a one quarter share of the trust funds identified in that account. Presumably Christina would also be entitled to an order for transfer of one quarter of the 2,000 shares in JMM identified in prayer 4, but this is not mentioned. Prayer 13 seeks, in alternative to prayer 5A, an order for payment of equitable compensation “in such sum as the Court assesses as just”.
Prayers 5B, 6 and 6A are directed against James. Prayers 5A and 6 seek declarations that the payments of AUD 20 million and USD 20 million made to him in 2022 were “traceable proceeds of the de la Sala trust funds” (this term is discussed further below) which were “paid in breach of trust” and that they were received by him on constructive trust for Christina “as one of the descendants of Robert Sr”. Prayer 6A seeks an order that James account for those receipts (or any other property into which their proceeds can be traced).
Prayers 7, 8, and 8A reflect the claim against Teresa for her share of the USD 67 million allegedly paid to her, Edward, and Maria-Isabel. Prayers 7 and 8 seek declarations that “one quarter of the sum of USD 20 million or such sum as the evidence discloses was received by [Teresa] from the deceased from the de la Sala trust funds” was received “on account of [Teresa’s] entitlement to capital and income” from the constructive trust in prayer 3, and that “in circumstances where [Christina] has not received” any distributions of capital or income from that trust, Teresa holds a one quarter share of what she has received on constructive trust for Christina “as one of the descendants of Robert Snr and one of the four children of the deceased”. Prayer 8A seeks an order that Teresa account for that share of her receipts “and any property to which those monies can be traced”. Equivalent orders are sought against Edward (prayers 9, 10 and to 10A) and Maria-Isabel (prayers 11, 12 and 12A).
In the body of the statement of claim, the factual allegations in support of Step One (the establishment of the alleged trust) are pleaded at [25] to [28]:

25. At all material times in the period up to about 1967, it was Robert Snr's intention to build up the asset holdings of [NEL] and JMC and reduced the liabilities of same for the purpose of holding the issued shares of NEL and his shareholding in JMC as a sacred trust, a family undertaking and a guarantee for the livelihood of Camila, his children and his descendants (the "d****e la Sala Trust Funds").

26. From 1950 and until his death it was Robert Snr's intention to hold the de la Sala Trust Funds for the benefit of Camila, his children and his descendants which intention was adopted by Camilla and their children ("Common Intention").

27. Between 1950 and at least 1959 and continuing Robert Snr made representations to Ernest, the deceased and Camila consistent with and in pursuance of the Common Intention in respect of the de la Sala Trust Funds.

[Particulars are given which include the 1950s correspondence to which I have referred at [24] above.]

28. In the premises from about 1957 the [Robert Snr] held his shares in [JMC] and the issued shares in [NEL] upon a constructive trust for his wife, and his four children and their descendants including the plaintiff.

The role of Ernest and the death of Robert Snr are addressed at [29] and [33]-[35]:

29. In reliance upon the representations of Robert Snr pleaded in paragraph 27 hereto, Ernest, with the knowledge of the deceased and Robert Snr, from about 1950 assisted in the management of the business and upon the death of Robert Snr in 1967, managed the business of [NEL], JMC and the companies which were incorporated to take over the business of [NEL], JMC for the purpose of maximising the de la Sala Trust Funds for the benefit of his mother, his siblings, himself, and their descendants including the plaintiff.

…

33. On 25 May 1967 Robert Snr died without leaving an estate. The Plaintiff says that upon Robert Snr's death, the de la Sala Trust Funds continued to be impressed with the Common Intention which had been adopted by Camila and their children.

34. Upon Robert Snr's death:

A. The shareholders of NEL were Tony, Ernest, Isabel, the deceased and Camila in equal shares of 1,200 shares each; and

B. the shareholders of JMC were, inter alia, Ernest as to 37% of the total shareholding, and Tony, Ernest, Isabel and the deceased as to 45% of the total shareholding via a nominee company, Overseas Nominees Ltd.

35. From 1967 to 2011 Ernest continued to act consistently with and in pursuance of the Common Intention by:

A. Preserving and augmenting the de la Sala Trust Funds through investment of the capital and reinvestment of the income; and

B. Making distributions of income and capital to Tony, himself, the deceased, Isabel and Camila.

Step Two (the transfer of the assets of JMC and NEL to the Nominee Companies) is relevantly pleaded at [32], [41], [41A] and [41B]:

32. Robert Snr and/or Ernest caused various orphan companies to be incorporated across various international jurisdictions including the following for the purpose of holding the assets of NEL and JMC:

A. Compania de Navegacion Palomar SA (PAL), a company incorporated in Panama;

B. Cosmopolitan Finance Corporation (CFC), a company incorporated in the British Virgin Islands;

C. Peninsula Navigation Company Private Limited (PEN), a company incorporated in the British Virgin Islands;

D. Dominion Corporation SA (DOM), a company incorporated in Panama;

E. John Manners & Co (Malaya) Ltd (JMM), a company incorporated in Singapore; and

F. Straits Marine Company Private Limited (SMC), a company incorporated in the British Virgin Islands (together the "Companies")

…

41. Ernest [and, presumably, Robert Snr, to the extent that he was responsible for the establishment and operation of the Nominee Companies during his lifetime] caused to be transferred the assets of NEL and JMC and the de la Sala Trust Funds to [the Nominee Companies] for no consideration and for the purpose of the Companies continuing to hold the de la Sala Trust Funds on trust for Tony, himself, the deceased, Isabel and Camila and Robert Snr's lineal descendants consistent with and in pursuance of the Common Intention. As at August 2011 the Companies held the following assets:

A. PAL-$US185,687,621;

B. CFC-$US358,061,435;

C. DOM-$US35,010,668;

D. JMM-$US2,983,989; and

E. SMC-$US2,839,239.

Total: $ US 584,582,952

41A. At all material times, the five orphan companies held the assets set out in paragraph 41 upon resulting trust for JMC and NEL with JMC and NEL not owning the assets beneficially.

Particulars

A. The plaintiff relies upon an issue estoppel arising from paragraphs 116, 155, 156 of the judgment of the said Court of Appeal [2018] SGCA 16 to which proceedings the plaintiff, the deceased, Ernest and the third defendant were parties where it was found that that the assets of the companies were held on resulting trust for JMC and NEL but that the companies did not own the assets of the companies beneficially.

B. The five companies were orphan companies with nominal or insubstantial paid-up capital and no apparent trading activities described by Ernest as "envelopes" or "containers" over which Ernest maintained full control and into which Ernest transferred the assets of JMC and NEL.

C. The plaintiff relies upon an issue estoppel at from paragraph 13 of the iudgment of the Court of Appeal [2018] SGCA 16 that NEL and JMC are in fact the origin of the Companys' wealth.

41B. As at August 2011 , the five orphan companies held the assets set out in paragraph 41 on resulting trust for JMC and NEL with those assets continuing to be impressed by the common intention that they be held on constructive trust for the benefit of Camila and Robert Snr's descendants.

Step Three (the transfer of the Nominee Companies’ assets to Ernest) is pleaded at [42]:

In or about August 2011, Ernest caused to be transferred the monies held by the Companies set out in paragraph 41 hereto to his own personal bank accounts.

There follows a description of the Singapore proceedings. Step Four (the transfer of some of family assets held by Ernest to the Deceased under the settlement, which assets were retained by the Deceased as at the date of his death) is pleaded at [47] and [51]:

On or about 11 September 2020, Ernest and the deceased reached a settlement in relation to Suit No 317, amongst other litigation, and an agreement about the beneficial ownership of the Companies set out in paragraph 32 and the monies transferred from the companies set out in paragraph 41 hereto and entered into a Deed of Settlement pursuant to which Ernest and the deceased purported to distribute the de la Sala Trust Funds between Ernest and the deceased.

A. Deed of Settlement dated 11 September 2020 executed by the deceased, Ernest, Tony and Isabel (the “Deed of Settlement”).

…

As at his date of death on 7 July 2022, the deceased held the following assets derived from the Deed of Settlement, being the traceable proceeds of the de la Sala Trust Funds:

A. A$296,336, 758 held with JP Morgan Bank Singapore (account 5572660).

B. A$132,667,135 held with Lombard Odier bank Singapore (account so 277700).

C. A$73,654,450 held with LGI Singapore in the name of John Manners and Co (Malaya).

D. TOTAL: A$502,656,341.

E. 2000 ordinary shares in John Manners and co (Malaya) having a value of A$209,248, such shares now being registered beneficially in the name of the First Defendant.

F. 1 ordinary shares in Northern Enterprises Limited (HK).

G. 1,680 ordinary shares in John Manners and Company Limited (HK).

As already noted, [27] alleges that the deceased was a recipient of representations by Robert Snr concerning the alleged “Common Intention with respect to the de la Sala Trust Funds” and [29] alleges that the deceased knew that Ernest was allegedly managing the family business “for the purpose of maximising the de la Sala Trust Funds for the benefit of” the family members “including the plaintiff”. The consequential liability of the deceased, and, ultimately, his estate, are addressed at [30], [31], [66A] and [66B]:

30. In the premises, and having regard to the matters pleaded in paragraphs 72 and 73 hereunder the First Defendant is estopped from denying that from about 1967 or such other time when Ernest assumed effective control of [NEL], JMC and the companies which were incorporated to take over the business of NEL, JMC, that those companies held the de la Sala Trust Funds for the benefit of and upon constructive trust for his mother his siblings, himself and their descendants including the plaintiff.

31. In the further premises, at all material times, the deceased was not a volunteer with respect to the de la Sala Trust Funds but had knowledge that they were impressed with a constructive trust for his parents, his siblings, himself and their descendants including the plaintiff.

…

66A. The assets received by the deceased from the Deed of Settlement set out in paragraph 51, represented that share of the assets of the five orphan companies set out in paragraph 41 to which the deceased's limb of the family were entitled as descendants of Robert Snr pursuant to the constructive trust in paragraph 41B hereto.

Particulars

A. Pursuant to the Deed of Settlement, the assets of the companies were divided between Ernest and the deceased. The redacted Deed of Settlement does not disclose the amount received by Ernest. The remaining children of Robert Snr did not receive any of the assets of the companies pursuant to the Deed of Settlement:

B. During the Singapore proceedings Tony and Isabel disclaimed any interest in the companies assets with the deceased disavowing any personal interest in the companies assets but that they were held upon a sacred trust established by Robert Snr- [2018] SGCA16 at [2141];

C. The plaintiff says the interest of the deceased's limb of the family in the assets held by the companies set out in paragraph 41 and for which Ernest accounted crystallised upon entry into of the Deed of Settlement; and

D. The plaintiff relies on paragraph [186] of the judgment of the Singapore Court of Appeal - "Edward and Christina stood to gain through their father Bobby, and James, although not a descendant stood to gain as Christina's husband".

66B. The plaintiff says that pursuant to the constructive trust sought in paragraph 1 of the Relief of which Robert Snr was settlor and which affixed to the assets of the five orphan companies pursuant to the constructive trust sought in paragraph 2 of the Relief and the monies and shares received by the deceased from the Deed of Settlement pursuant to the constructive trust sought in paragraph 4 of the Relief, the deceased holds those shares and monies on constructive trust for his four children as tenants-in-common in equal shares as descendants of Robert Snr or in such other proportions as is found to be due upon the taking of accounts.

The pleading of the claims against James closely tracks the declarations and other relief sought against him. After pleading receipt by James of the payments of AUD $20 million and USD $20 million in July and August 2022, the statement of claim alleges that those monies “were paid out of the traceable proceeds of the de la Sala Trust Funds or out of mixed funds being the traceable proceeds of the de la Sala Trust Funds and the deceased’s funds” and “as such were received subject to the constructive trust referred to” in [30]. It then alleges that James “was not of a volunteer with respect to the de la Sala Trust Funds” but “had actual knowledge that they were impressed with a constructive trust for his parents [sic] on trust for his parents [sic], his [sic] siblings and their descendants, including [Christina]”. It is further alleged that the monies received by James were paid “in breach of trust and ought properly to have been paid to [Christina] on account of her entitlement to capital and income out of the settlement monies”.
The claims pleaded against Christina’s siblings likewise closely track the declaratory relief sought against them in the statement of claim. The sum of USD $67 million allegedly shared between the siblings is alleged to have been paid out of the traceable proceeds of the de la Sala Trust Funds or out of mixed funds and as such to have been subject to the constructive trust referred to in [30]. In each case it is alleged that the sibling in question was “not a volunteer with respect to the de la Sala Trust Funds” and that the payment received by that sibling was on account of her or his “entitlement to capital and income from the alleged constructive trust”. It is further alleged that in circumstances were Christina has not received any distribution of capital or income, Terrill breached her duty as trustee to treat beneficiaries under that trust, namely her children, equally. It is said to follow that each of the siblings holds a one quarter share of the amount received “on constructive trust for [Christina] as one of the descendants of Robert Snr and one of the four children of the deceased”.
Before parting with the pleading, I should comment on the repeated allegations that each of the deceased, James and Christina’s siblings were “not a volunteer with respect to the de la Sala Trust Funds” or the property received by them allegedly derived from those funds. Obviously it is used in support of a claim to trace property under the second limb of Barnes v Addy. But I cannot think that it is intended literally. Being a voluntary recipient of property is not a defence to a claim under Barnes v Addy; rather the reverse. I have accordingly read the phrase as “was not a bona fide purchaser for value without notice”.
Submissions: The pleading expressly refers to the alleged descendants’ trust as a common intention constructive trust, and counsel for Christina confirmed that this was the doctrine upon which her claim was based. In [2005] NSWSC 42 White J identified and discussed the elements of such a constructive trust at [30]-[46]. I was referred by counsel for both parties to his Honour’s judgment, and the principles identified in it were not in dispute for the purposes of the application.

One class of case where equity will intervene to prevent the unconscientious denial by the legal owner of another party’s rights, is where the parties agreed, or it was their common intention, that the claimant should have an interest in the property owned by the other, and the claimant acted to his or her detriment on the basis of that agreement or common intention. ….

The first point made by counsel for the defendants about the pleading of Christina’s claim in the present case concerned the allegation in [26] that the intention allegedly held by Robert Snr had been “adopted” by his wife and children so as to make it a “common intention” for the purposes of the doctrine. Counsel submitted that this allegation could not possibly be sustained. It was inconsistent with the 2020 settlement, in which the family assets had been divided between Ernest and the deceased, to the exclusion of Robert Snr’s other two children, Tony and Isabel.
Counsel for the defendants next criticised the references in the statement of claim to the assets of the alleged trust being held for the benefit of the “descendants” of Robert Snr. They submitted that this allegation had no definite meaning. It failed to identify the specific beneficial interests held by each of Robert’s Senior’s children, grandchildren, and remoter issue at any particular point in time. For instance, counsel asked rhetorically, what interest did Christina have in the assets during her father's lifetime?
Counsel also submitted that the way that Christina’s case had been formulated was in fact inconsistent with the alleged trust in favour of Robert Snr’s “descendants”. Christina was claiming one quarter of the assets of the trust in her father's hands. Yet she was only one of 11 grandchildren of Robert Snr. And why, come to that, should the entitlement be limited to grandchildren? The term “descendants” included Christina's own children (and other great-grandchildren of Robert Snr).
Next, counsel made a series of points which fastened on the term “de la Sala Trust Funds” in the statement of claim. As defined in [26], this term meant, for the purposes of Step One, the shares held by Robert Snr in JMC and NEL during his lifetime. But in Steps Two, Three and Four, the subject matter of the alleged trust had become assets formerly owned by JMC and NEL which had been transferred to the Nominee Companies, and then appropriated by Ernest, and then transferred to the deceased under the September 2020 settlement.
In Counsel's submission, this change in the subject matter of the alleged trust was simply impermissible. There was a clear distinction between the shares in JMC and NEL, considered as property, and the assets belonging to those companies. Counsel relied in particular on the following statement by the Singapore Court of Appeal in the earlier proceedings (at [119]):

At the outset, we note that the key premise of Ernest’s case, that there was a full buyout of JRIC’s shares in NEL and JMC, would not ipso facto have given Ernest ownership of NEL’s and JMC’s assets. A beneficial interest in a company’s shares does not imply a beneficial interest in the company’s assets. On a simple application of the doctrine of separate legal personality, shareholders qua shareholders have no proprietary interest in the company’s assets ... Of course, it is possible for a company to hold its assets on trust for others (including, potentially, its shareholders), but such a trust must arise in the usual ways in which trusts arise; it does not occur as a necessary incident of shareholding as such ... We are unable to see anything whatsoever in the evidence before us that suggests that any such trust had arisen in favour of JERIC in respect of the assets held by NEL and JMC.

Counsel also pointed out that it had been found in the Singapore proceedings that the JMC and NEL shares had in fact been disposed of by Robert Snr before his death. In counsel's submission, even if those shares had originally been held on trust, the only viable claim was against whoever the owner of the shares now was. No such claim had been articulated by Christina.
Counsel acknowledged that the test for striking out a claim is a demanding one which requires that the claim be manifestly hopeless. But counsel submitted that this threshold had been reached. Indeed, counsel invited me to go further and to summarily dismiss the descendants’ trust claim in its entirety. Counsel pointed out that Christina's legal advisers had made two attempts to re-plead since I had first raised issues with the statement of claim, including issues summarised above. I could, and should, infer from their inability to formulate a coherent pleading of the claim that no viable claim was possible (citing Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 at 75).
In response, counsel for Christina began by making two general points about the Court's power to strike out pleadings or summarily dismiss claims.
Not only was the Court obliged to assume that all the factual allegations made by the plaintiff were correct, but (relying on Penthouse Publications Ltd v McWilliam [1991] NSWCA 222), the Court had to adopt a “liberal construction” of the statement of claim for that purpose. That is, the Court had to “accept the truth of all allegations but also the truth of the work of the ranges of meanings of the statement of claim”.
Counsel referred me to the decision of the Court of Appeal in Spellson v George [1992] NSWCA 254. That was a claim of breach of trust which was similarly dismissed at first instance on the ground that the plaintiff beneficiary had consented to the conduct of the trustee which was now alleged to have been a breach. No defence had been filed the claim, and the trial judge had acted on the basis of evidence presented at the hearing. The appeal was allowed on the basis that summary dismissal had been premature. Counsel pointed out that defences had not been filed in the present case, and contended that the same approach should be followed.
As to the point concerning the adoption of the alleged “common intention”, counsel for Christina submitted that it could not be inferred, merely because of the terms of the 2020 settlement, that the intention in question had not been adopted by the relevant members of the de la Sala family. There might be other explanations for the fact that Tony and Isabel received nothing from the settlement. More broadly, in counsel's submission, this was a question of fact and therefore an inappropriate basis for summary disposal.
Counsel then turned to the point about the trust being for the benefit of the “descendants” of Robert Snr. Counsel submitted, referring to at [36], that it was not necessary to establish the common intention in terms of a share in the property, defined in terms sufficiently certain to satisfy conveyancing requirements (at [36]). It is sufficient that the parties intend that the claimant “should have a beneficial interest or some form of proprietary interest in the property”.

Tracing is thus neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property. Tracing is also distinct from claiming. It identifies the traceable proceeds of the claimant's property. It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim. But it does not affect or establish his claim.

Applying Lord Millett’s approach, it is necessary to identify how Christina’s claim gives rise to proprietary remedies before any question of tracing comes into play. If the shares held by Robert Snr in JMC and NEL during his lifetime were the subject matter of the trust, as required by Step One in Christina’s contentions, the claim must involve a breach of trust by Robert Snr resulting from a failure to retain the subject shares and hold them for the beneficiaries of the alleged trust. If the allegation of breach were sustained, that would have entitled the beneficiaries to obtain an account of the trust property (that is, the shares) from Robert Snr (or, after his death, his estate). If the shares had been exchanged by Robert Snr for other assets, those assets could have been recovered in their place. If they had been transferred to third parties who were not bona fide purchasers for value without notice, those third parties could have been required to account for them (or for any assets exchanged for them by the third parties).
This is not the case presented in SC3. There is no allegation of breach of trust on the part of Robert Snr, and no claim for an account from his estate. On the pleaded facts, the shares were transferred to his children before his death, but receipt-based liability for the shares is not pleaded against them, nor is any account sought from them (except against the deceased, and on a different basis). Indeed the only breaches of trust pleaded are against Terrill as executor (SC3 [57B]).
It is clear, as a matter of procedural history, how this discontinuity arose. I think that history is revealing.
In SC1, the term “de la Sala Trust Funds” was defined as a “fund of assets” built up by Robert Snr in JMC and NEL before his death. Thus the subject matter of the trust was identified for the purposes of Step One as being assets in the hands of JMC and NEL. The pleader presumably felt no difficulty about alleging that those assets, or assets exchanged for them, then passed to the Nominee Companies (Step Two), then to Ernest (Step Three), and then, through the September 2020 settlement, to the deceased (Step Four).
But at the hearing on 1 October, I pointed out that, on this analysis, the trustee under the common intention constructive trust would have been JMC and NEL, not Robert Snr as alleged. He did not personally own the relevant assets. And JMC and NEL, although evidently still in existence, had not been joined as defendants.
Following this, Christina’s legal representatives altered the definition of the “de la Sala Trust Funds” in SC2 (and, later, SC3) so as to define those “Funds”, not as business or investment assets forming part of the shipping empire, but as the shares in JMC and NEL originally held by Robert Snr, rather than assets of the companies themselves: see [25], quoted above. This solved the potential problem with JMC and NEL being the trustees for the purpose of Step One. But the altered definition was used for the rest of the pleading without paying attention to the fact that in Steps Two, Three and Four, the subject matter of the claim could only be business or investment assets.

Equitable estoppel claim

Pleading: The statement of claim pleads two alternative claims, one a claim of an “inter-generational equitable estoppel” and the other a claim of a plain “equitable estoppel”. These claims are reflected in the declarations sought in prayers 3 and 3A:

3. A declaration in the events which have occurred that the plaintiff as a granddaughter of Robert Snr is entitled to enforce against the first defendant as the executor of the estate of the deceased a constructive trust over the estimated amount of US$584,582,952 held by PAL, CFC, SMC, DOM and JMM as at August 2011 arising from an inter-generational equitable estoppel between Robert Snr, Camila, [Ernest], the deceased and, inter-alia, the plaintiff as one of the lineal descendants of Robert Snr.

3A. In the alternative to [prayer] 3, a declaration there is in existence an equitable estoppel arising from the representations made by the deceased and the First Defendant pleaded in paragraphs 35A, 40A, 69, 70 and 71 hereto and the plaintiffs reliance thereon (in the knowledge of the deceased and the First Defendant) by which the First Defendant holds as executor of the estate of the deceased the monies received by him as a result of the Deed of Settlement dated 11 September 2020 and the shares in [JMM] on constructive trust for the Plaintiff and her three siblings as tenants-in-common in equal shares as children of the deceased and one of the lineal descendants of Robert Snr or in such other proportions as to capital and income as is found to be due upon the taking of accounts

As already noted, both estoppel claims pick up the same relief as for the descendants’ trust claim: an order for account, and consequential order for payment (prayers 5 and 5A: see above). An alternative claim for equitable compensation in prayer 13 seeks, for the equitable estoppel claim, “the monetary value of the representations relied upon” by Christina, as alleged in the body of the statement of claim.
In the body of the statement of claim the intergenerational estoppel claim is the first to have its supporting facts pleaded. These concern the involvement of Christina, and later, James and Edward, in the management of the family business and appear at [35A], [36]-[38] and [40A]:

35A. In or about 1990 until 1995, Ernest, Camila and the deceased encouraged the Plaintiff to act in accordance with and in pursuance of the Common Intention.

Particulars

A. The Plaintiff relies on paragraphs 47 to 68 of her affidavit sworn 23 August 2023 in these proceedings.

…

In the period 2001 to 2004 Ernest asked the Plaintiff and the Third Defendant to relocate her family to Singapore in order for him to train the Plaintiff and her husband James to manage and take control of the family assets.

…

In or about 2003, consistent with and in pursuance of the Common Intention, Ernest made the following oral representations to the Plaintiff, the Fifth Defendant and Third Defendant:

A. Ernest was the custodian and managing the de la Sala Family businesses, which was couched as Robert Snr's "legacy" or the "family legacy";

B. If the Plaintiff, the Third and the Fifth Defendant agreed to assist, the Plaintiff, the Third and the Fifth Defendant would eventually take over role as custodian of the de la Sala family legacy which comprised a pool of assets held by the family companies and which they had to safeguard and invest wisely to enhance these assets over time;

C. If the Plaintiff, the Third and the Fifth Defendant assisted, the Plaintiff could expect to be well-reward financially being a financial reward substantially more than the "pile of beans" they could expect to earn in their present jobs and greater than that which would be received by the rest of the family;

D. By relocating to Singapore to assist Ernest in the management of the family assets, they would be increasing the value of the de la Sala family assets and this would benefit all de la Sala family members;

E. The Third Defendant, Fifth Defendant and the Plaintiff and their respective children would directly benefit from their management and enhancement of the de la Sala family assets, as they were all descendants of Robert Snr and Camila and were beneficiaries of the de la Sala family legacy (the "Ernest's 2003 Representations").

…

Relying upon Ernest's 2003 Representations and with the encouragement of the deceased and in pursuance of the Common Intention, the Plaintiff and Third Defendant in about 2004 and Edward relocated their families to Singapore to assist Ernest managing the Companies and the de la Sala Trust Funds for the benefit of Camila, her uncles and aunts and the descendants of Robert Snr.

…

40A. During the period between 2001 and 2011, Ernest made the following representations to the Plaintiff, Edward and James concerning the return they would receive as custodians of the family legacy:

A. As custodians of the family legacy they were to receive greater rewards than the rest of the family

B. The Plaintiff and James would receive in their capacity as directors of companies managing assets 10% of profits and Edward and his wife Lyndel would receive 10% of the profits

Under the heading “Common Intention Constructive Trust”, these paragraphs, together with the allegations supporting the descendants’ trust claim are repeated and it is alleged that:
the deceased, Ernest, James, Edward, and Christina “all adopted the Common Intention in relation to the de la Sala Trust Funds” ([60]);
the deceased, Ernest, James, Edward, and Christina “conducted their relationship and management of the de la Sala Trust Funds on the basis of the Common Intention” ([61]);
the deceased and Ernest “knew and intended” that “each of them” (scil, all five of them) would do so ([62]);
Christina acted to her detriment “in adopting and relying on the Common Intention” ([64]);
in entering into the 2020 settlement, Ernest and the deceased “resiled from the Common Intention in relation to the de la Sala Trust Funds” ([63]), thereby occasioning detriment to Christina ([65]) and
it would therefore be unconscionable for Ernest and Terrill, as executor of the deceased’s estate, to “resile from holding the de la Sala Trust Funds on constructive trust for the benefit of the lineal descendants of Robert Snr” ([66]).
Later in the pleading, under the heading “equitable estoppel claim”, [77] alleges:

77. In the premises there is in existence an inter-generational equitable estoppel by which the first defendant holds as executor of the estate of the deceased the monies received by him and the shares in [JMM] from the Deed of Settlement dated 11 September 2020 on constructive trust for the plaintiff as one of the lineal descendants of Robert Snr and pursuant to which the plaintiff and her three siblings as tenants-in-common in equal shares as children of the deceased and one of the lineal descendants of Robert Snr or in such other proportions as to capital and income as is found to be due upon the taking of accounts.

The pleading of the ordinary estoppel claim (which overlaps factually with the inter-generational equitable estoppel claim) then follows. Various representations by the deceased to Christina are alleged in [69] to [71]:

69. The deceased made the following representations to the plaintiff in or about 2003:

A. Given the Plaintiff's skills, the Plaintiff should relocate to Singapore to assist Ernest in managing the de la Sala Family's Trust Funds;

B. That the Plaintiff should keep in mind Robert Snr's scheme for the management of the family assets for future generations as set out in the Tokyo letter;

C. That Ernest had sent him his emails to the plaintiff and that the Plaintiff should accept Ernest's request to relocate to manage the family legacy; and

D. There would always be a place for the Plaintiff to work within the family business. (the deceased's Representations)

…

71. The deceased made the following representations of which the plaintiff was aware during the course of Suit No. 178:

A. When giving evidence in proceedings in the High Court of Singapore in proceedings 178 of 2012, the deceased gave evidence that his father had planted a tree for his lifetime and bore fruit for his descendants ([2017] SGHC14 at [294])

B. There was a trust set up by the Plaintiff's father which he referred to as the tree which he and his siblings partook of the fruit but the tree remained to provide for future generations of the de la Sala's ([2017] SGHC14 at [63]).

C. That his children went to Singapore "to help secure and for the second generation to carry on the Family Trust" (Transcript dated 10 October 2014, page 97 of (2017) SGHC14): that the "Singapore team ... were the ones to carry on the baton [and] continue looking after the sacred trust" (Transcript dated 14 October 2014 page 25 of [2017] SGHC14).

D. Edward, Christina and James were the new generation who came to be known as the "Singapore team", "Ernest's partners" and "custodians". ("deceased's litigation representations")

The pleading continues at [71A]:

71A. A reasonable person in the position of the plaintiff would have interpreted the deceased's representations … to mean the following:

A. That Robert Snr had set up a trust for the wellbeing of his descendants and deserving relatives:

B. That by showing the plaintiff the Tokyo letter dated 7 July 1957, and asking her to keep it in mind, the deceased was adopting its contents and representing it to the plaintiff as the basis upon which she would move to Singapore to work with Ernest in the family business:

C. The deceased represented to the plaintiff that if she moved to Singapore to work with Ernest in the family business she would receive a share of the trust consistent with her position as a descendant of Robert Snr and one of the four children of Robert Snr's son the deceased:

D. The deceased represented to the plaintiff that if she moved to Singapore to work with Ernest in the family business she would also receive a share of the profits of the business which the plaintiff understood to be 10% of the profits from the assets under management; and

E. That if the plaintiff is successful in the Singapore proceedings in recovering the money from Ernest, she will be rewarded with the monies continuing to be held for the benefit of Robert Snr's descendants and she would receive a share of the trust consistent with her position as a descendant of Robert Snr and one of the four children of Robert Snr's son the deceased and would continue to act and benefit as a custodian.

The pleading also incorporates by reference the following paragraphs in the plaintiff’s affidavit of 28 August 2023:

76. On other occasions, my father discussed with me his own father's scheme for the management of the family's assets for future generations. In particular, he referred to a letter written by Robert Snr dated 7 July 1957 referred to in the family as the "Tokyo letter". I don't recall when I first saw the letter however my father definitely spoke to me about it before I started working for my uncle Ernest when I was in my 20s. ...

77. My father also discussed the Tokyo letter with me after I had relocated to Singapore. He said to me words to the effect: "I am proud of you for becoming the "Singapore team" with your brother and spouses. You should always keep in mind what grandfather intended for the management of the family's assets. They are to be preserved for future generations."

The pleading at [72]-[73] then repeats the allegations that the deceased “was not a volunteer with respect to the de la Sala Trust Funds” and “had knowledge” that they “were impressed with a trust in favour of the lineal descendants of Robert Snr”. Detrimental reliance is then pleaded at [74]:

74. The plaintiff acted to her detriment in reliance upon Ernest's 2003 Representations, the deceased's Representations, the deceased's Litigation Representations, the representations set out in paragraphs 76 and 77 of the plaintiffs affidavit dated 28 August 2023 and the encouragement by the deceased referred to in paragraph 35A hereto.

Particulars of detriment

A. In or about 2004, upon Ernest's request, the Plaintiff and James moved to Singapore with their family to learn and take over management of the de la Sala Fund for little remuneration;

B. The Plaintiff forsook pursuing other more lucrative employment opportunities in order to move to Singapore and work with Ernest in managing the de la Sala Fund;

C. In or about 2011 and 2012, the Plaintiff personally funded about SG$125,000 for advice in relation to commencement of Suit No 178 to recover the monies Ernest had transferred to himself out of the de la Sala Fund; and

D. From about 2011 until 2020, the Plaintiff assisted in providing instructions and preparation of various proceedings against Ernest in Singapore and Hong Kong to get back the assets and preserve the de la Sala Fund.

E. Working as a director of the companies until 2021.

The following conclusions are pleaded at [75] and [79]:

75. In the premises it is unconscionable for the First Defendant, as executor of the deceased’s estate, to deny that the First Defendant holds the Deceased’s interest in the de la Sala Trust Funds being the monies received by the deceased from the Deed of Settlement dated 11 September 2020 on constructive trust for the Plaintiff and her three siblings as tenants-in-common in equal shares as children of the deceased and one of the descendants of Robert Snr and pursuant to which the plaintiff is entitled to distributions of capital and income or in such other proportions as to capital and income as is found to be due upon the taking of accounts.

…

79. In the alternative to equitable estoppel sought in paragraph 3 of the Relief there is in existence an equitable estoppel arising from the representations made by the deceased and the First Defendant pleaded in paragraphs 35A, 69, 70 and 71 hereto and the plaintiffs reliance thereon (in the knowledge of deceased and the first Defendant) by which the first defendant holds as executor of the estate of the deceased the monies received by him from the Deed of Settlement dated 11 September 2020 and the shares in John Manners (Malaya) Pte Ltd on constructive trust for the plaintiff and her three siblings as tenants-in-common in equal shares as children of the deceased and one of the descendants of Robert Snr and pursuant to which the plaintiff is entitled to distributions of capital and income-or in such other proportions as to capital and income as is found to be due upon the taking of accounts.

Submissions: The reference to an “inter-generational equitable estoppel” in SC3 prayer 3 and [77] appears to have been inspired by the decision of Slattery J in Robertson v Byrne [2022] NSWSC 1713, to which I was referred to by counsel for Christina. The facts of that case concerned a house which was inhabited for a period of decades by two generations of a blended family. The original inhabitants were Richard Snr and Ethel. The property was acquired by Ethel's daughter Gloria, who was Richard's stepdaughter, with the assistance of a loan of half the price (£2200). His Honour found that Gloria promised Richard Snr that in return for his loan of £1100 she would leave her interest in the property to his stepbrothers, Raymond and Trevor, in her will. Both Richard Snr and Trevor predeceased Gloria. When she died, she left the property partly to a godchild of hers and partly to charity. Neither Raymond nor Trevor's estate received anything.
Slattery J found that the distribution of the property in accordance with the terms of the will was both a breach of contract and a breach of equitable obligations arising from the promise and the consequential loan. His Honour concluded that there were equitable obligations arising both by way of equitable estoppel and common intention constructive trust. In analysing the detriment and identifying and analysing the elements of the equitable estoppel, he identified the promise as having been made to Richard Snr, and as having been relied upon by him in making the loan of £1,100. That promise was not for Richard Snr’s personal benefit, but for that of his sons. That presumably explains why counsel treated it as an illustration of an “inter-generational” estoppel.
Counsel for the defendants framed their argument on the application, so far as it concerned the equitable estoppel claim, on a general basis. They did not refer to or, acknowledge, any separate category of “inter-generational” equitable estoppel.
For the elements required to sustain the estoppel claim, counsel referred me to the statement of principle by the High Court in Kramer v Stone (2024) 281 CLR 484 at [37] to [40]:

37. First, as with the requirement for representations in estoppels by representation generally, there must be a "clear and unequivocal" promise made by the party estopped (the promisor) to the party who relies upon the promise (the promisee). Of its nature, the clear and unequivocal promise will generally concern some representation about future conduct.

38. Secondly, a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct. This is what is meant by references, including throughout this appeal, to the promise being an "encouragement" for the promisee to act.

39. Thirdly, the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In order to establish reliance, it is ordinarily necessary for the promisee to show not merely that the promise was one factor taken into account in motivating the promisee's action or omission but that the promisee would not have acted or omitted to act in the absence of the promise. In other words, it must usually be shown that the promisee's reliance "made a difference to [the promisee] taking the course of action or inaction".

40. Fourthly, the consequence of the promisee's reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made. Unlike the recognition of a gift, or the enforcement of a testamentary promise under a valid will, or the enforcement of a contractual promise, it is the existence of detriment arising from reasonable reliance upon an unfulfilled promise that completes the recognition of the estoppel and moulds the remedial response. As this Court has repeatedly held, "[i]t is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise". Hence, the relief is "moulded accordingly to prevent th[e] detriment". In cases where the detriment suffered by a plaintiff is "a relatively small, readily quantifiable monetary outlay on the faith of the [defendant's] assurances" then, apart from interest, the likely equitable relief ordered will be compensation in the amount of the monetary outlay. By contrast, where the detriment suffered "involves life-changing decisions with irreversible consequences of a profoundly personal nature", the likely equitable relief will be to require fulfilment of the assumption upon which the plaintiff acted, such as by a conveyance of rights, or an assessment of the monetary value of the assumption.

Counsel focussed their criticism on the pleaded representations. Counsel submitted that the representation needed to take the form of a promise of an interest in property. But the representations pleaded did not contain any such promises. In particular, the representations in SC3 [71A] that Christina “would receive” benefits still did not amount to promises that the deceased himself would do something. Furthermore, the representations pleaded were not “clear and unequivocal” ones, as required by Kramer at [37].
Counsel made a second, related, point. The present case, they submitted, was far from the usual proprietary estoppel case where an existing owner of property makes a promise of an interest in that property in return for work being done on the property or some other detriment being incurred with respect to it (citing my decision in Makaritis v Makaritis (No 2) [2022] NSWSC 1690 at [170]). The interest claimed by Christina here is an interest in the proceeds of the settlement. But at the time the alleged representations were made, that settlement did not exist. For this reason too, SC3, in Counsel's submission, failed to plead the essential elements of a viable case.
In reply, counsel for Christina were at pains to emphasise that they were relying upon equitable estoppel generally, and not some particular sub-doctrine. In particular, counsel resisted the suggestion that the estoppel for which they contended was limited to a proprietary estoppel, or estoppel by encouragement.
But in the course of argument counsel themselves relied upon the principles stated by the High Court in Kramer. I therefore understood them to accept that those principles defined the elements required for establishing the estoppel or estoppels for which Christina in contending. Nor did they separately address the requirements of an “inter-generational” estoppel.
Turning to the pleading itself, counsel for Christina invited me to reject both of the points on behalf of the defendants. On the first point, counsel submitted that that the promise of a specific and defined interest in property was unnecessary. Counsel referred to Flinn v Flinn [1999] VSCA 109, where the Victorian Court of Appeal collected the authorities on this point at [80]-[94]. Counsel also pointed to the availability of compensation in Kramer at [40]. They argued that such compensation could reflect the detriment suffered by Christina without necessarily being referable to the value of any particular item of property.
On the second point, counsel also submitted that there was no reference in the requirements listed in Kramer to the property in question being in existence at the time of the representation. Robertson was given as an example of a case where it had not been.

Conclusions

I have concluded that:
the descendants’ trust claim should be summarily dismissed;
the “inter-generational” estoppel claim should be struck out; and
the conventionally pleaded estoppel claim should likewise be struck out, but in its case, there should be leave to replead.
It will be necessary to identify the prayers for relief and pleading paragraphs which are to be struck out of SC3 as a result of conclusions (2) and (3). My preliminary view is that conclusion (2) will result in prayer 3 and [35], [35A] (as to Ernest and Camila), [36]-[37], [38] (as to Ernest), [39]-[40A], [58]-[66] and [77] being struck out. Conclusion (3) will require prayer 3A and [35A] (as to the deceased), [38] (as to the deceased), [68]-[75], [79] and [79A] to be struck out. As a result of prayers 3 and 3A being struck out, the consequential relief sought in prayers 4, 5, 5A and 13 will also need to be struck out. This will leave prayers 1, 2 and 5B-12 to be summarily dismissed as a result of conclusion (1).
The summary dismissal of the descendants’ trust claim will leave the notional estate claims and the only remaining basis for the joinder of the remaining defendants other than Terrill as defendants. There may be a challenge to the viability of those claims, which, if successful, would result in the proceedings against those remaining defendants being wholly dismissed.
The summary dismissal of the descendants’ trust claim may mean that the subject matter of the Singapore proceedings disappears and with it the threat of an anti-suit application there. In any event it will bring that claim to an end, so that the basis for an injunction in aid of proceedings on the claim in this Court will fall away. If I am right in suspecting that the defendants do not argue that the conventionally pleaded estoppel claim forms part of the subject matter of the earlier Singapore proceedings, it would seem to follow that the anti-suit orders made on 17 November should be discharged.
On 16 January this year I issued to the parties a draft of the judgment to this point. I asked them to confer on the orders to be made to give effect to my conclusions on the summary judgment application, and on costs. I also invited them to identify any errors or omissions in the draft judgment.
The consultations between the parties resulted in some agreed corrections to the draft judgment, which did not affect the conclusions I have reached. They also resulted in a measure of agreement on the orders to be made. That question was then the subject of a further hearing on 20 February. After I had ruled at the hearing on the remaining areas of dispute, the parties agreed on a final form of the orders reflecting those rulings.
The parties agreed on the parts of the statement of claim to be summarily dismissed and struck out in accordance with my conclusions. Counsel for Christina intimated that the offer of leave to apply to replead what I have termed the “conventionally pleaded estoppel” claim would be taken up, and a timetable was agreed for this purpose.

Orders

The orders made by the Court on 17 November 2025 on the Third Defendant’s notice of motion filed 17 November 2025 were:
Order that the motion be dismissed.
Order that the applicant pay the respondent’s costs of the motion.
The orders made by the Court on 17 November 2025 on the Plaintiff’s notice of motion filed 23 July 2025 were, as later amended under the slip rule, relevantly:

(6B) Order pursuant to r.11.8AB that leave be granted nunc pro tunc to serve the amended notice of motion dated 22 July 2025 on the Third Defendant.

(6C) Order pursuant to r.10.14(3) that the amended notice of motion dated 22 July 2025 is taken to have been served on the Third Defendant on 23 July 2025.

(6D) Declaration that the Fourth Defendant was personally served pursuant to rr 10.20(2)(a) and 10.21 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) on 20 November 2023 with a sealed copy of the statement of claim filed 16 October 2023 in these proceedings.

(6F) Declaration that the Fifth Defendant was personally served pursuant to rr 10.20(2)(a) and 10.21 of the UCPR on 22 November 2023 with a sealed copy of the statement of claim filed 16 October 2023 in these proceedings.

(6H) Declaration that the Sixth Defendant was personally served pursuant to rr 10.20(2)(a) and 10.21 of the UCPR on 3 December 2023 with a sealed copy of the statement of claim filed 16 October 2023 in these proceedings.

7. That the First and Third to Sixth Respondents be restrained, until further order, by way of an anti suit injunction from taking any steps to obtain an order in the courts of the Republic of Singapore, or elsewhere restraining the Plaintiff from prosecuting these proceedings or to pre-empt, or otherwise, interfere with the Plaintiff’s constructive trust and equitable estoppel claims for relief in these proceedings.

That the First, Third, Fourth, Fifth and Sixth Respondents be restrained, until further order, by way of an anti suit injunction from taking further steps to prosecute or maintain the relief sought in the proceedings designated as HC/OC 871/2024 in the High Court of the Republic of Singapore or substantially similar relief in other proceedings commenced in Singapore or any other jurisdiction other than New South Wales.
The further order I now make on the Plaintiff’s notice of motion filed 23 July 2025 is:
Order that the costs of the motion be reserved.
The orders the Court made on 6 March 2026 on the First Defendant’s, and the Third to Sixth Defendants’ notices of motion filed 26 November 2025, as later amended on 21 April 2027 pursuant to the slip rule are:
Order that the proceedings be summarily dismissed, in part, pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) being the relief contained in prayers for relief 1, 2 and 5B-12A of the further amended statement of claim filed on 24 November 2025 (the FASOC).
Order that the following paragraphs of the FASOC be struck out pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW):

(a) Prayer for Relief 3. (b) Pleadings paragraphs 35, 35A (insofar as it relates to Ernest and Camila), 36-37, 38 (insofar as it relates to Ernest), 39-40A, 58-66, 77.

Order that the following paragraphs of the FASOC be struck out pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW):

(a) Prayers for relief 3A, 4, 5, 5A, and 13. (b) Pleadings paragraphs 35A (insofar as it relates to the Deceased), 38 (insofar as it relates to the Deceased), 68-75, 79 and 79A.

Order that the Plaintiff pay the First Defendant’s costs of her notice of motion filed 26 November 2025 as agreed or assessed.
Order that the Plaintiff pay the Third to Sixth Defendants’ costs of the notice of motion filed by them on 26 November 2025 as agreed or assessed.
Direct the Plaintiff to serve a draft second further amended statement of claim (“SFASOC”) to replead the ‘conventionally pleaded equitable estoppel claim’ being the claim as identified in paragraphs [276] to [283] of Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163 and struck out above in Order 3-4 on or before 4pm on 16 March 2026.
Direct the First, and Third and Sixth Defendants respond by 4pm on 18 March 2026 as to whether they consent to the filing of the proposed SFASOC.
In the event that the First, and Third to Sixth Defendants do not consent to the filing of the proposed SFASOC, direct the Plaintiff to file and serve on or before 20 March 2026 a Notice of Motion for leave to file the proposed SFASOC returnable before Justice Parker on 23 March 2026.
Order that Order 7 made on 17 November 2025 and amended by Order 1 made on 4 December 2025 and Order 8 made on 17 November 2025 be discharged except in respect to the conventionally pleaded equitable estoppel claims, as referred to in Orders 12 and 13 below.
Order that the undertaking given to the Court by the First and Third to Sixth Defendants on 30 July 2025, that they will not apply for an anti suit injunction in proceedings HC/OC 871/2024 in the High Court of the Republic of Singapore or elsewhere until the later of:

(a) 14 days after the delivery of judgment in HC/RA 136/2025 in the High Court of the Republic of Singapore; or (b) 14 days after the delivery of judgment concerning the Plaintiff’s Amended Notice of Motion dated 22 July 2025; (c) be released forthwith.

Order that Order 9 and 10 above be stayed until 6pm on 23 March 2026 notwithstanding Orders 1, 2 and 3 above.
Order that the First, Third, Fourth, Fifth and Sixth Defendants be restrained, by way of an anti anti suit injunction from taking any steps to obtain an order in the courts of the Republic of Singapore, or elsewhere restraining the Plaintiff from prosecuting in these NSW Supreme Court proceedings number 2023/214349 the ‘conventionally pleaded equitable estoppel claim’ for relief, being the claim as identified in paragraphs [276] to [283] of Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163 or to pre-empt, or otherwise, interfere with that claim in these proceedings until 6pm on 23 March 2026.
Order that the First, Third, Fourth, Fifth and Sixth Defendants be restrained, by way of an anti suit injunction from taking further steps to prosecute or maintain the relief sought in the proceedings designated as HC/OC 871/2024 in the High Court of the Republic of Singapore in relation to the Plaintiff’s ‘conventionally pleaded equitable estoppel claim’ for relief in these NSW Supreme Court proceedings number 2023/214349, being the claim as identified in paragraphs [276] to [283] of Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163 or substantially similar relief in other proceedings commenced in Singapore or any other jurisdiction other than New South Wales until 6pm on 23 March 2026.
Stand the matter over for further directions before Parker J on 23 March 2026.

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Amendments

21 April 2026

Amendments to [298]: Orders (1), (6), (9) and (11) amended pursuant to the slip rule on 21 April 2026.

21 April 2026

[298] date of original orders added

12 May 2026

[298(11)] amended to added an extra order

Perez de la Sala v Perez de la Sala (No 4)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Background and procedural history

Application to withdraw appearance by James

Anti-suit application by Christina

Application for summary dismissal of equity claims

Alleged contempt by defendants

Descendants’ trust claim

Equitable estoppel claim

Conclusions

Orders

Amendments

21 April 2026

21 April 2026

12 May 2026

Parties

Legislation Cited (4)

Cases Cited (9)

Cited By (3)