Singh v Singh [2006] WASC 182

Bankruptcy Act 1966 (Cth), s 58(3)(b), s 60

Rules of the Supreme Court 1971 (WA), O 8 r 5, O 34 r 3

Trusts (Hague Convention) Act 1991 (Cth), Sch, Article 7

Brygel v Stoneham & Anor, unreported; SCt of Vic (Batt J); Library No BC9701264; 4 April 1997

Couzens v Negri [1981] VicRp 78; [1981] VR 824

Deschamps v Miller [1908] 1 Ch 856

Magnate Projects Pty Ltd v Youma Constructions (No2) Pty Ltd [2005] NSWCA 331

Re Doyle (dec'd); Ex parte Brien v Doyle [1993] FCA 77; (1993) 112 ALR 653

Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR(NSW) 23

Yii Chee Ming v Teo Ah Khing & Teo Cho Teck & Anor [2005] 5 MLJ 354

Atkinson v Atlas Investments Limited [2004] NSWSC 63

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158

British South Africa Co v Companhia de Mocambique [1893] AC 602

Collins Book Depot Pty Ltd v Bretherton [1938] VicLawRp 11; [1938] VLR 40

Heuston v Barber (1990) 19 NSWLR 354

Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596

McEntee v Connor [1994] TASSC 47; (1994) 4 Tas R 18

Mickelberg v Network 10 (Perth) Pty Ltd [2001] WASC 75

Nudd v Taylor [2000] QSC 344

Parham v McGill [1998] WASCA 375

Parker v Tranfield [2001] WASCA 233

Piscioner v Smith [2002] WASC 202

Voth v Manildra Flour Mills [1990] HCA 55; (1970) 171 CLR 538

1 This is an application by the defendant to set aside a judgment I gave for the plaintiff at a trial in this action, which was conducted in the absence of the defendant. The application first came before Master Newnes on 8 June 2006, when it was adjourned to come before me on 9 June 2006. I was the trial Judge in this action. At the hearing on 9 June 2006, I adjourned the matter to come back before me on 14 June 2006. There was a continuation of the hearing on 15 June 2006, when I reserved judgment.

2 The plaintiff and the defendant are residents of this State. The plaintiff in the action claimed relief in respect of an alleged trust of land in Malaysia (the "Property"). In 2001 it is alleged the defendant executed in Perth a declaration of trust of the Property. The declaration of trust included that the defendant would at the plaintiff's request transfer the Property absolutely, to the plaintiff or to another person or persons as the plaintiff directed. The principal relief claimed was

1. a declaration that the defendant as trustee holds the Property on trust for the plaintiff as beneficiary;

2. "an order that the defendant forthwith do all things, and sign all documents necessary to transfer the Property absolutely to the plaintiff";

3. "judgment for the Plaintiff in a sum of Australian dollars equivalent to Malaysian Ringgit 13,500"; and

3 At the trial, I gave leave to amend the prayer for relief to delete the claims in respect of the sum of Malaysian currency referred to (3 and 4, above).

4 Following the trial, I gave judgment in terms of the relief claimed in respect of the trust (1 and 2, above) and costs. I gave reasons in an ex tempore judgment. About one month later the orders from the judgment were extracted.

5 The defendant represented himself for the purposes of the present application. The defendant relied upon the inherent jurisdiction of the Court to control the conduct of proceedings, and in his written submissions cited authorities on setting aside judgment obtained in default of a defence. I consider the latter jurisdiction, under O 22 r 10, has no application here, because, as I will explain below, a defence had been lodged in these proceedings. As to the application to this case of any inherent jurisdiction to set aside this judgment, it was not made clear to me that any such jurisdiction would confer a larger jurisdiction than O 34 r 3, which states:

"Any judgment, order, or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial."

6 There is, however, a time limit on applications under O 34 r 3. I return to that matter below.

7 After the hearing of the defendant's application, the plaintiff made an application for leave to file further written submissions. Counsel for the plaintiff indicated, at the hearing of that application, on 11 August 2006, that because of difficult personal circumstances to which he had been subject, he had not been able to present submissions in the issue of forum non conveniens (on which he had previously made written and oral submissions) that would be of the assistance to the Court he could now provide. For the reasons I gave at the hearing on 11 August 2006 I dismissed that application and reserved the making of an order as to costs of the application to the hearing on the delivery of the present judgment. I return to the matter of the costs of the plaintiff's application below.

8 There is a recent review of the approach to be applied in a case such as this one in Magnate Projects Pty Ltd v Youma Constructions (No2) Pty Ltd [2005] NSWCA 331, per Hodgson JA, Campbell JA agreeing. Handley JA dissented on the approach to be applied. I return to Handley JA's dissent below. Hodgson JA said this, at [48] - [52]:

"[48] In my opinion, the following passage from the judgment of Jordan CJ in Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR(NSW) 239 at 243 sets out the principles applicable to this case:

'The present is not a case in which judgment was signed by default through some procedural omission on the part of the defendant or his legal advisers. The action followed the ordinary course, except that its coming on for trial was delayed through dilatoriness on the part of the defendant. It is one in which, the action coming on for trial in its ordinary place in the list, no one was present in Court to conduct it for the defendant, and it therefore proceeded in his absence. In such a case, when the plaintiff is in no respect in default, a new trial will not be granted save in very special circumstances: Chitty's Archbold, 10th ed, 1457; 12th ed, 1526. In every such case the Court has an inherent and unfettered, though judicial, discretion, in the exercise of which it will, however, necessarily consider (a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained: Evans v Bartlam [1937] AC 473 at 482. As a general rule (although not necessarily in every case, if some reason exists for departing from it: Collins' Book Depot Pty Ltd v Bretherton [1938] VLR 49; Austn. Digest (1934-1939) 1859, the Court requires an affidavit showing prima facie that the defendant has a good defence on the merits: Evans v Bartlam [1937] AC 473 at 480, 488-9, and also an explanation of his absence which shows that justice requires that in the circumstances it should be excused. And if there has been gross negligence on the defendant's part, the Court will be the more disposed to require at least a reasonably clear case of merits to be shown, to incline it to interfere: Nash v Swinburne 3 M&G 630 at 632; Weitzel v Friedenreich 14 WN 7; Austn Digest 376.'

[49] I do not read the cases of Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 and Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 as materially affecting the principles stated by Jordan CJ in Vacuum Oil.

[50] In Taylor, orders were made in the absence of a party because of neglect of his solicitor, and this party applied to have it set aside, having 'filed affidavit material which showed that the facts of the case were seriously in contest' (143 CLR at 8-9); and the various statements made by the judges of the High Court in that case have to be read in the light of that circumstance. Similarly, in Allesch, the party seeking to set aside a property settlement order made in his absence filed an affidavit that made claims 'as to the value and extent of the property owned by him and his former wife and as to his reduced earning capacity' (203 CLR at 176), which was accepted by the primary judge in that case to be such that, if it was accepted even in part, 'the result of [the wife's property settlement] application may well be substantially different' (203 CLR at 177).

[51] In Allesch, it was stated in the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ (at 182-3, after reference to Taylor) that 'a court will, ordinarily, be satisfied that there has been a miscarriage of justice if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a rehearing or that a rehearing would work an irremediable injustice to the other side'. Having regard to the circumstances of that case and of Taylor, I do not read that sentence as intended, by implication, to do away with the long-established requirement that a person applying to set aside an order, regularly made in his or her absence, ordinarily bears an onus of showing an arguable case on the merits, that is, a case that might reasonably bring about a different result, as well as an explanation for his or her absence: cf Allesch at 188-9 per Kirby J.

[52] In my opinion, an applicant seeking to set aside a judgment obtained after an undefended hearing does not have to show that a different result is likely should the judgment be set aside and a new trial ordered. However, the circumstances may be such, as Jordan CJ says, as to require 'a reasonably clear case of merits to be shown'; that is, that it appear reasonably clearly that there is a defence capable of producing a different result. If that defence depends on facts, then there should be some evidence of those facts; and the circumstances may be relevant to the quality of the evidence that is required to show a defence on the merits in particular cases. Among such circumstances could be the degree of the applicant's default, and hardship to the respondent."

9 Handley JA said in Magnate (supra), at [11]:

"Furthermore in my judgment Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 and Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 establish that a Court will ordinarily be satisfied that there has been a miscarriage of justice if an adverse order has been made ex parte where the failure to appear is adequately explained unless it also appears that no different result would be reached on a re-hearing or that a re-hearing would work an irremediable injustice to the other side. These principles are more favourable to defendants in the position of Youma [the defendant against which judgment had been obtained] than those stated by Jordan CJ in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239."

10 I do not consider there is any difference in this case that would flow from the application of the majority's approach rather than that of the minority. That is because there is here an affidavit filed in support of the application which provides (as I will indicate) evidentiary support, at the higher standard referred to in Magnate (supra), per Hodgson JA, Campbell JA agreeing, at [52], for at least one of the defences sought to be relied upon by the defendant in any retrial.

11 I note also there is authority that delay in bringing the application may require explanation, and prejudice to the opponent will be a material matter: Seaman, Civil Procedure in Western Australia, at [34.3.1].

12 On these authorities, I consider that I must address the following matters:

• the explanation for the absence of the defendant at the trial;

• whether no different result would be reached at the hearing, which raises the question of whether there was a case on the merits of the sort required in a case like this one; and

• whether a rehearing would work an irremediable injustice to the other side, which includes consideration of any unexplained delay in bringing this application.

The explanation for the absence of the defendant at the trial

13 The explanation is in terms of two matters. The first is the defendant's not having been informed by his solicitor of the date of hearing or that the solicitor did not intend to attend at any such hearing on the defendant's behalf. The second was he believed that, as he was a bankrupt, all legal proceedings against him had been stayed. To consider these explanations, I must set out some background about the representation of the defendant in these proceedings.

14 The action was commenced by originating summons dated 20 May 2004 (not 20 April 2004, as my draft judgment at the trial would indicate). The defendant filed a memorandum of appearance dated 31 May 2004 which indicated he was representing himself. There was an order for directions dated 29 July 2004 of Master Sanderson that the matter proceed as if commenced by a writ of summons, following a hearing on that date. I will need to return to that hearing below.

15 Following the Master Sanderson's order, on 3 August 2004, a statement of claim was lodged. Subsequently, a notice of appointment of a solicitor for the defendant was lodged, on 26 August 2004. On the same day a defence was lodged. However, on 31 January 2005, following a number of interlocutory orders, a "Notice of Change of Solicitor" for the defendant was lodged indicating that that solicitor had ceased to act and that the defendant had resumed acting in person. This notice appears to have been one under O 8 r 5.

16 On 21 December 2005 the solicitor shown on the notice lodged on 26 August 2004 appeared before Le Miere J at a listing conference. The solicitor explained that he had been instructed to appear in the matter generally, and not simply for the purposes of the hearing. At that time there had been no lodgement of notice of change of solicitor or similar, however. His Honour listed the trial for 29 March 2006.

17 On 3 February 2006, following trial directions of Le Miere J made on 2 February 2006 to which I will return, a notice of appointment of the solicitor was lodged. The solicitor had again appeared for the defendant, at the hearing on 2 February.

18 On 13 February 2006, further trial directions were made by Le Miere J at a hearing at which the solicitor for the defendant referred to appeared for him. I will also return to those directions.

19 On 14 February 2006, the defendant was declared bankrupt, on his own application.

20 By a letter dated 22 March 2006 the Official Trustee informed the solicitors for the plaintiff, in reply to their letter to the Official Trustee of the same date, that the Official Trustee would not be represented at the hearing of 29 March 2006 and did not propose to be involved in the matter.

21 At the trial on 29 March 2006, as listed by Le Miere J on 21 December 2005, the solicitor for the defendant applied under O 8 r 7 for an order declaring that he had ceased to act as solicitor for the defendant. Although he had not lodged a summons as required by O 8 r 7(2), and did not provide an affidavit in support of his request for the order, I determined I could proceed on his submissions from the bar table, in the circumstances appearing from the material showing the bankruptcy of the defendant, and the prior history of representation in these proceedings, as well as the statements from the Bar table that he had not had any instructions from his client since the client's bankruptcy, and a recent medical condition which had affected the solicitor's practice. I determined the application could be granted. However, I stipulated that he provide an affidavit in support of the application, which would also depose to the knowledge of his former client, that his former solicitor regarded himself as having ceased to act for him, to which I return below.

22 In the event, an affidavit of the solicitor was sworn and lodged on 4 April 2006 in which he deposes that he had been informed by his client on 13 February 2006 that he had declared himself bankrupt, that the solicitor had advised his client that "all his property was vested in the Trustee in Bankruptcy" and that the solicitor "could not continue to act for him in the circumstances" (par 4), and, on asking his client whether he had informed the trustee of "the impending trial", the client had informed him that he had so informed the trustee, and that the trustee would not become involved in the proceedings (par 5).

23 The defendant in his affidavit in support of this application sworn 31 May 2006 and lodged on 1 June 2006 deposes that he had retained a solicitor to represent him (par 3); that he was "not informed by my counsel of the date of the hearing for the Order for The Declaration as to Interest in the Property", and that the solicitor "did not intend to attend on behalf [sic]" (par 4); that "a letter sent by my counsel to the Associate to the Honourable Judge Simmonds on the day of the hearing was never copied to me" (par 5); that "[a]t that time" he had been declared bankrupt on 14 February 2006, and that he "sincerely believed all legal proceedings against me had thereby been stayed" (par 6).

24 The reference to the letter to my Associate on the day of the hearing appears to be to a letter dated 29 March 2006 from the solicitor who swore the affidavit of 4 April 2006, shown as copied to the solicitor for the plaintiff (although not to the defendant, who as I have indicated claimed at the hearing before me not to have seen a copy of it until the hearing). This letter confirms that the solicitor first referred to had been told by the defendant's trustee in bankruptcy that the trustee would not be involved in the proceedings, attaches a letter from the trustee dated 28 March 2006 to that effect, and also confirms the solicitor first referred to had "not received instructions from my client since his bankruptcy"; and requests the solicitor "be excused".

25 It will be seen that there are differences between the affidavit of the defendant and that of his solicitor as to what the defendant knew with respect to the listed trial date and with respect to the solicitor's position as to his representation of him. I consider, however, these differences can be reconciled, as I will explain.

26 It is a matter of some difficulty in an application like this one to resolve differences in affidavit evidence of the sort I have described. However, at the least it is not clear that this is a case of a failure by the solicitor to inform a client of a trial date and of a failure to inform him that the solicitor did not intend to continue representing him: compare Magnate Projects (supra).

27 Indeed, while there is no reference in the solicitor's affidavit of 4 April 2006 to him having informed his client of the date of the trial, except in terms it was "impending", the affidavit of the solicitor for the plaintiff of 12 June 2006 annexes (as part of annexure "EC1") a letter dated 8 December 2005 from the Court's listing supervisor to the defendant (who was then shown as self-represented, as I have indicated). That letter refers to the upcoming listing conference of 21 December 2005, indicates Le Miere J "intends to make an order under O 29A r 8(6) fixing the dates for trial of the case in the months of February and March 2006", and asks the defendant to indicate any unavailable dates. I am satisfied that letter indicates the defendant was aware of the likelihood of a trial in one of those months.

28 However, there is also the reference in the letter of 29 March 2006 to the solicitor not having received "instructions from my client since his bankruptcy". This it might be suggested indicates at the least a degree of ambiguity in the relations between the solicitor and the defendant since the bankruptcy. However, the full context of the quotation is as follows:

"I have not received instructions from my client since his bankruptcy and request that I be excused."

29 In that context, the reference to the lack of instructions from "my client" is in my view likely to refer to the lack of any instructions to prepare a notice under O 8 r 5 for change to self-representation rather than to indicate that the solicitor had considered himself to be continuing to act for the client since the bankruptcy. Had the solicitor that latter belief, it is difficult to see why he would not have copied the letter to the client.

30 It was put to me by the plaintiff that I should conclude that the defendant's evidence in respect of his not being informed by his solicitor of the trial date or that his solicitor did not intend to attend at the trial on his behalf should not be believed. I was referred to aspects of the difficult history of this matter and others between the parties which it was said showed he was not to be believed. That history shows findings adverse to the defendant's credibility in other proceedings. I return to some specific incidents in that history below. I do not consider that I am in a position in proceedings such as these readily to make credibility determinations of the sort possible at a trial of the action. I consider, however, that I should determine, on the balance of probabilities, the facts relevant to the explanation for the failure of the defendant to attend at the trial. See Brygel v Stoneham & Anor, unreported; SCt of Vic (Batt J); Library No BC9701264; 4 April 1997 at 11. This is a different determination to that as to whether the defendant has shown by his affidavit a sufficient case on the merits. The matter of the explanation for the non-appearance of the defendant appears to me on the authorities, as discussed in Magnate (supra), both by the majority and the minority, to be fundamental to the "ordinary" case, and not a matter, like that of the merits, that would form part of any re-trial. I consider also that I can reject evidence in an affidavit on an issue on which the defendant has the burden of proof, such as facts relevant to the explanation for the failure to attend, if I find that evidence to be inconsistent with the body of other evidence including other evidence provided by the defendant himself which I believe.

31 The plaintiff put three matters to me as giving rise to doubt as to the credibility of the defendant in relation to the matters quoted from his affidavit of 31 May 2006, par 4. I have concluded that two of these do so.

32 One has to do with the statement in the affidavit of the defendant of 31 May 2006 that he held the Property on a prior trust, which is supported by an annexed deed of trust. This statement is inconsistent with his statement, in an affidavit filed early in the proceedings, that he was "the absolute registered owner" of the Property, and the lack of any reference to this prior trust relationship in his defence, although it is listed in his affidavit of discovery. I return to these matters below, where I conclude that the two can, although not without difficulty, be reconciled.

33 The second matter has to do with the defendant's failure to disclose to his trustee in bankruptcy a large judgment debt he owed to the plaintiff. I also return to this below. I consider this does go to the defendant's credibility.

34 The third matter is his failure, when he was served on 9 May 2006 with the orders following the trial of 29 March 2006, to communicate with the solicitor who, on the defendant's affidavit of 31 May 2006, as I have indicated, had not told the defendant the solicitor "did not intend on behalf [sic]". Rather, as I will indicate, the defendant first wrote to him about the matter more than one month later, on 13 June 2006. This too in my view goes to his credibility.

35 On all of the evidence before me, I find that the defendant, whether or not he was aware of the trial date actually fixed, was aware there likely had been such a date fixed, and that the date was in February or March. I so conclude, given the evidence in the affidavit of 4 April 2006 of the defendant's former solicitor that he had informed the defendant the trial was "impending", and the earlier letter from the Court to the defendant to which I have referred.

36 However, I also find that the defendant believed his former solicitor did not intend to act for him at the trial in the matter, because the defendant believed there would not in fact be any trial. He believed there would be no trial because he believed that his bankruptcy would work a stay of the proceedings. I so find, notwithstanding the matters going to the defendant's credibility, for the reasons that follow.

37 I have already referred to the evidence that the defendant's solicitor had informed him the solicitor would no longer be acting for him. I consider this can be reconciled with the defendant's evidence, to which I have also referred, that he was not informed by his solicitor that that he did intend to act for the defendant, on the basis of the belief of the defendant there would not be a trial. There is support for the finding that the defendant believed there would be no trial at which the solicitor would have any occasion to act from the fact that, notwithstanding that the trial was "impending" as the solicitor deposed, there is no evidence the solicitor advised the defendant of the need to attend to the trial directions made at the hearing 13 February 2006 (to which I return below), or of the need to decide whether to proceed with his defence (a matter which it appears was in question at the time, and to which I also return below), and file a notice of intention to act in person (see O 8 r 5). I would assume that the client was familiar with the process of such notices, from the "Notice of Change of Solicitor" lodged on 31 January 2005 previously referred to. There was also the reference to the lack of instructions "from my client" in the letter of the solicitor to the Court dated 29 March 2006. And, as I have indicated, until the solicitor had so indicated by the letter to the Court dated 29 March 2006 referred to, there was no sign on the file of any proposal to change the defendant's representation of record.

38 However, as to any belief of the defendant that there would be no trial because he was bankrupt, I note, as I concluded at the trial on 29 March 2006, that bankruptcy does not of itself stay all proceedings against the bankrupt. Rather, it has the effect that it becomes necessary for a "creditor" wishing to take a "fresh step" in a proceeding "in respect of a provable debt" to obtain the leave of a court of competent jurisdiction in that regard (on which see McDonald, Henry & Meek, Australian Bankruptcy Law and Practice, 5th ed, Sydney: Law Book Co, looseleaf, at [58.3.70]): see Bankruptcy Act 1966 (Cth), s 58(3)(b).

39 Further, by s 60(1)(b) of that Act such a court may stay "any legal process":

" ... against the person or property of the debtor:

(i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or

(ii) in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt ..."

40 No application had been made under s 60, whether to this Court (which may not be a court of competent jurisdiction in such proceedings, or in proceedings under s 58(3)(b): see McDonald et al (supra) at [58.3.70]) or to any other court.

41 However, it is a matter of some nicety whether or not these proceedings were caught by s 58(3)(b), at least in respect of the relief claimed on the trust alleged. In my judgment of 29 March 2006 I addressed this issue, holding that in that respect s 58(3)(b) had no application. However, I do not consider that a self-represented litigant would necessarily be able readily to come to the same conclusion. The defendant, on the solicitor's affidavit of 4 April 2006, had indicated to him the trustee would not be involved in the matter, which in my view should have indicated to the solicitor the need to remind the defendant this would not necessarily affect the holding of the trial. I would have expected the solicitor to depose as to having given such a reminder in his affidavit of 4 April 2006 if one had been given. There is no such deposition or other evidence of such a reminder.

42 In addition, the original prayer for relief included a monetary claim, which had it been maintained might have taken the proceedings within s 58(3)(b).

43 On all of this evidence, I find on the balance of probabilities that the defendant believed there would be no trial because he believed his bankruptcy worked a stay of the proceedings in question. However, such a finding raises three further questions. One is whether or not the defendant's belief was the result of advice from his former solicitor or otherwise. The second is whether or not the defendant had entered bankruptcy simply to take advantage of the stay referred to. The third question is whether or not the defendant would have attended the trial hearing on 29 March had he been informed it was to be held, even although that the Court had previously been informed of the defendant's bankruptcy, and had he also been informed that his solicitor would attend and simply seek to withdraw.

44 As to the first question, I have already found the defendant was aware of the likely trial date, and had been informed by his former solicitor that the trial was "impending". There is no evidence the defendant had sought clarification of his position in those events from the solicitor. If the defendant had not received advice as to the stay as he believed it to be from that solicitor, it would seem to me that a failure to seek such clarification could be regarded as gross negligence within the meaning of the term in Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR(NSW) 239, per Jordan CJ, at 243, in the passage quoted in Magnate (supra) per Hodgson JA, Campbell JA agreeing at [48].

45 The only evidence I have of any such advice is the defendant's letter to his former solicitor of 13 June 2006 which was tendered to me at the hearing without objection from counsel for the plaintiff. That letter said "on discovery of the judgment I wrote to the Plaintiff's solicitors to inform him that I was a bankrupt and that I did not think that any further proceedings could be maintained against me". After listing a number of the matters arising from the draft judgment I had prepared and read from at the end of the trial on 29 March 2006, which I had provided to the defendant at the hearing in chambers in this matter on 9 June 2006, matters on which the defendant sought "clarification" from the plaintiff's solicitor, the letter goes on to say (with my emphasis):

"There is a facsimile referred to by Justice Simmonds dated 2nd February 2006 that apparently states that I had decided not to proceed with the defence in this case. I had never at any stage instructed you in those terms. You had advised me to declare myself a bankrupt as I had reached the stage where all my money and assets had evaporated in the defence of those actions. You had informed me that if I did that, all proceedings against me would be stopped. I had agreed to the proposition by you but had never at any stage instructed you to write to the Plaintiff's solicitors to say that I no longer intended to defend this action."

46 I return to the facsimile first referred to below.

47 On balance, I do not find the letter of 13 June 2006 compelling. It seems to me to be a matter calling for an explanation that the letter was only written on 13 June 2006, and not when the defendant (presumably to his considerable surprise) was served with the orders in this matter on 9 May 2006. As I have indicated, the defendant did not get access to my draft reasons for judgment on the trial of 29 March 2006 until 12 June 2006, which may explain the date of the letter, but which does not encourage me to be confident about the accuracy of the statements it makes about receiving advice from the solicitor. The defendant in his submissions put to me that he had been told not to concern himself with the hearing, in respect of which the solicitor would be writing to the Court to explain why the solicitor would not be appearing for the defendant. I have difficulty squaring this statement with what the defendant says in his affidavit of 31 May 2006 as to the solicitor not informing him of the date of the hearing or that he "did not intend to attend on behalf". In any event, it does not explain why the defendant waited until 13 June 2006 to write as he did if he had received the advice referred to from his solicitor.

48 I am left to find that, while the defendant had the belief referred to as the effect of his bankruptcy, the evidence points to that belief having a source other than his solicitor, with the consequence I have described for the standard of the case on the merits the defendant must meet.

49 The second question, of whether or not the defendant had entered bankruptcy simply to take advantage of the stay as he believed it to be, rather than at least in substantial part as a response to an insolvent condition in which he found himself, was a matter to which before me counsel for the plaintiff directed some attention. The significance of the answer to the question was not, however, made altogether clear to me. In my view, that significance lies in the greater reluctance it might be argued I should feel to exercise the broad discretion referred to in Vacuum Oil (supra) to set aside the judgment for the plaintiff if I should draw the inference the plaintiff urged me to draw that the defendant had entered bankruptcy simply to take advantage of the stay as he believed it to be. As I have indicated, the defendant's belief as to the stay referred to was in my view incorrect.

50 It was put to me that I should draw the inference contended for by the plaintiff from two matters. One was a history in these proceedings of the defendant's non-cooperation so as to avoid a trial as long as possible. The other is evidence as to the solvency, or lack of it, of the defendant, as he believed that position to be.

51 The evidence put before me of non-cooperation in the litigation process was of the failure to make admissions and agree a chronology for the purposes of the preparation for trial, and the failure to provide the material referred to in the affidavit of a forensic handwriting expert upon whom the plaintiff expected the defendant to rely, an affidavit to which I return below. The relevant material appears in annexures to the affidavit of the solicitor for the plaintiff of 12 June 2006 ("EC2" read with "EC3"; and "EC4").

52 However, I am unable to infer from this more than that there were indeed difficulties for the plaintiff in getting the cooperation of the defendant in readying the matter for trial. In particular, I am unable to draw from this inference support for the inference the plaintiff contends for.

53 The evidence before me of the solvency of the defendant is principally the relatively low level of the defendant's liabilities disclosed in his statement of affairs for the purposes of bankruptcy. The relevant material is another annexure to the solicitor's affidavit of 12 June 2006 ("EC9"). I was reminded there is no reference there to this litigation, although I do not draw anything from that, as the defendant had not conceded any liability arising out of it.

54 Rather more significant is the lack of any reference to his liability, in an amount of $173,349, under a judgment obtained by the plaintiff against the defendant in other proceedings, CIV 5 of 2002, which is a default judgment in respect of which no proceedings to set it aside have been taken. The omission is significant in view of the total of the liabilities disclosed in the statement of affairs, of $44,848. The failure to disclose the judgment debt is indeed striking. It offers some support for the view that the defendant had sought to enter a bankruptcy from which he could depart in a relatively short period of time. However, without knowing more of the defendant's asset and income position as he understood it, I am unable to draw sufficient support for that view to give rise to the inference the plaintiff contends for.

55 Finally, I was also referred to a default judgment against the defendant in CIV 1009 of 2005 declaring he had made a transfer of his interests in certain property in fraud of his creditors (affidavit, par 9). This it appears was put before me as evidence that the defendant had assets which, on his own statement of affairs, would indicate he might well not be insolvent. However, I am unable to infer from that evidence that the defendant took the position he in fact had a property position such that he was indeed not insolvent; indeed, the contrary would appear to be the case.

56 The balance of proof on the matters essential to finding an adequate explanation for the defendant's failure to attend the hearing on 29 March 2006 is, as I have indicated, on the defendant. However, I am unable to conclude that he needs to adduce evidence to rebut an inference otherwise arising that he entered bankruptcy as the plaintiff contends, as I do not conclude that inference is to be drawn here.

57 This takes me to the third question I referred to, of whether the defendant would have attended the hearing had he known that the hearing of 29 March 2006 was to be held, even after the Court had been made aware of his bankruptcy, and that his solicitor would attend simply to withdraw. The answer to this question goes, in my view, to the adequacy of the explanation for the defendant's non-attendance that is based on the beliefs I have described. It might be suggested that if, with that knowledge, he would not have taken the precaution of attending the hearing to ensure the hearing did not go forward, he had not shown an adequate explanation for his non-attendance.

58 I am not convinced that he would have failed to show such an explanation in such a case. That failure would only follow it seems to me, if it also appeared he was prepared to take the risk his understanding of the effect of his bankruptcy was incorrect. In my view the evidence as to his beliefs that I accept points to the contrary.

59 In any event, I find that, if he had known the hearing on 29 March 2006 was to be held even after the Court was aware of his bankruptcy, and that his solicitor would simply attend to withdraw at that hearing, the defendant would likely have attended to defend his interests. It seems to me that his belief was that, once the fact of his bankruptcy had been made known, there would be no hearing. The fact that a hearing was to take place even after that fact had been made known to the Court would on the defendant's beliefs have made it important that there be an argument for the stay made to the Court, by the defendant if not by his former solicitor. I have already referred to the evidence that the defendant had been informed his solicitor did not intend to act for him, and my finding that the defendant believed this was entailed in the staying of proceedings against the defendant.

60 My findings and the answers to the questions I have given to the questions I set out lead me to conclude that the defendant has adequately explained his absence from the hearing on 29 March 2006. However, that absence was due to gross negligence on his part. Thus, the standard for evaluating the merits in this case is one of whether the defendant has with respect to the defence he relies upon met the standard, in the terms of Magnate, per Hodgson JA, Campbell JA concurring, at [52], quoting from Vacuum Oil , per Jordan CJ, at 243, of:

" ... 'a reasonably clear case of merits to be shown'; that is, that it appear reasonably clearly that there is a defence capable of producing a different result."

Whether a reasonably clear case has been put to me

61 The defendant put to me that I should be satisfied to the relevant standard that a different result might be arrived on two accounts, representing two distinct defences. The first was that the Court would have the benefit of argument and evidence on the question of its jurisdiction in a matter which concerned land in Malaysia. The second matter of defence was that the Court would have the benefit of argument and evidence on the authenticity of the deed of declaration of trust relied upon by the plaintiff.

62 Before examining those matters, I should note there was a third matter of defence put to me. It was that the argument that the claim in respect of the trust was caught by s 58(3)(b) or could be made the subject of an application under s 60. This is a matter I addressed in my judgment of 29 March 2006, as I have already indicated. It is not clear to me what new material the defendant is in a position to put before me, and none is referred to in his affidavit or submissions. Were that to be the only reason adduced, I would not conclude a case on the merits had been put to me that met even the lowest of the standards described in Vacuum Oil, per Jordan CJ, at 243. However, there are, as I have indicated, other matters of defence put forward. I turn to those.

63 As to the jurisdiction of the Court in a case relating to foreign land, the defendant had in his memorandum of appearance indicated his request to enter it "without prejudice to the Defendant's contention that the Supreme Court of Western Australia is not the forum conveniens / has no jurisdiction to adjudicate on this matter". The defendant did not, however, apply within 14 days thereafter to have the matter of the jurisdiction of the court determined, as O 12 r 6(2) provides. (As I will indicate, however, the matter appears to have been returned to by both the defendant and the plaintiff not long thereafter, although the matter does not appear to have been decided upon by the Court, and was not subsequently returned to until this application.) The effect of the non-compliance with the 14 day period was that, unless the Court otherwise ordered, the defendant's appearance became unconditional. This, however, does not as I understand the authorities disentitle the defendant to raise the question of lack of jurisdiction on the basis that the action concerned land located in a foreign jurisdiction: see Sykes, E and Pryles, M Australian Private International Law, 3rd ed, Sydney, Law Book Company, 1991, at 60 - 63. The issues, if they are reasonably raised, might be addressed at any retrial: see Seaman, (supra), at [12.6.6]. This, as I understand the matter, also applies to the question, subsequent to the question of whether the Court had jurisdiction, of whether that jurisdiction should not be exercised, on forum non conveniens grounds. I return to that question below.

64 On the prior issue, of jurisdiction, the defendant referred me to Re Doyle (dec'd); Ex parte Brien v Doyle [1993] FCA 77; (1993) 112 ALR 653, Burchett J, where I note the following statement of the law (at p 669; I emphasise particular words in one of the authorities he refers to as of possible relevance to this case):

"A passage to which I have already referred in Sykes and Pryles, op cit, p 788 (footnote) makes the statement, in the present context, 'that the local court will not try an action involving foreign immovables'. There is authority for this proposition. In Deschamps v Miller [1908] 1 Ch 856 at 863-4, Parker J said:

'In my opinion the general rule is that the court will not adjudicate on questions relating to the title to or the right to the possession of immovable property out of the jurisdiction. There are, no doubt, exceptions to the rule, but, without attempting to give an exhaustive statement of those exceptions, I think it will be found that they all depend on the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of a Court of Equity in this country, would be unconscionable, and do not depend for their existence on the law of the locus of the immovable property. Thus, in cases of trusts, specific performance of contracts, foreclosure, or redemption of mortgages, or in the case of land obtained by the defendant by fraud, or other such unconscionable conduct as I have referred to, the court may very well assume jurisdiction. But where there is no contract, no fiduciary relationship, and no fraud or other unconscionable conduct giving rise to a personal obligation between the parties, and the whole question is whether or not according to the law of the locus the claim of title set up by one party, whether a legal or equitable claim in the sense of those words as used in English law, would be preferred to the claim of another party, I do not think the court ought to entertain jurisdiction to decide the matter.'

...

The principle stated in Deschamps v Miller may be supported by reference to British South Africa Co v Companhia de Mocambique [1893] AC 602. Both cases were discussed by Woodward J in Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, where he dismissed an action for a declaration in respect of a mortgage of foreign land, namely land in Tasmania. (It should be explained that Woodward J was sitting in the Supreme Court of the Australian Capital Territory.)"

65 As I have indicated, the relief in this case was claimed with respect to an asserted trust over the Malaysian land. The statement of claim refers to the declaration of trust of 2001 as the basis for that trust, although it also pleads that the "Plaintiff was, at all material times since September 1967 or thereabouts, and still is the beneficial owner of the whole of the Property". The reference to September 1967, it emerged at the trial, was to the date on which the plaintiff's mother as administratrix of his father's estate had transferred the Property to him, after which, in 1970, he had transferred the Property back to his mother on trust for himself, after which, in 1991 or 1992, at his request, she transferred the Property to the defendant in Malaysia, when the defendant agreed to hold the Property on a bare trust for the plaintiff. On the evidence in the trial, particularly the trust deed itself, two bases for the trust claimed thus emerged, without it being altogether clear whether each was being separately relied upon.

66 The first basis was the transfer, in 1991 or 1992, at the plaintiff's request of the alleged trust property from the plaintiff's mother to the defendant.

67 The second basis was the declaration of trust in 2001 referred to. The defendant in the declaration acknowledged that the defendant held the property transferred in 1991 on trust for the plaintiff, and that the plaintiff "was, and remained at all times, the beneficial owner" of the Property. The defendant in the declaration also "hereby declares that he holds the Property in trust for the Beneficiary [the Plaintiff] and hereby agrees that he will at the request and cost of the Beneficiary transfer the Property absolutely to the Beneficiary or such person or person at such time or times and in such manner or otherwise deal with the same as the Beneficiary shall direct or appoint".

68 It is not clear whether the declaration should be seen to evidence the original trust or to constitute a new trust, or both. If the first, then the trust might be seen to depend on the law in Malaysia: I return below to the question of the proper law of a trust under the law in this State. If the trust so depended, this, on Deschamps v Miller [1908] 1 Ch 856, per Parker J, would seem to remove the application of the "exception" to the principle that the Court should not take jurisdiction in a case involving foreign real property. I note the following, from Couzens v Negri [1981] VicRp 78; [1981] VR 824, Marks J, at 827 - 828:

"In my view, what is fundamental is the defendant's dependence on the law of the locus of the immovable property for the assertion and enforcement of rights by the court whose jurisdiction is invoked. What Parker, J. [in Deschamps (supra)] said in this regard is entirely consistent with the doctrine espoused by Lord Herschell, LC, in the Mocambique Case, [1893] AC 602. It explains why the House of Lords maintained that notwithstanding the Judicature Acts the matter was 'not technical but substantial'. That this is the principle which is fundamental is further confirmed by what was no more than a passing observation of Lord Wilberforce in the Hesperides Hotels Case, [1979] AC 508. There, his Lordship held that the action for conversion of the chattels in the hotels in Cyprus was maintainable in England. Lord Wilberforce said (at [1979] AC p. 538): 'In the present case, interference with the appellants' chattels is distinctly alleged and, moreover, no local law is relied upon as justifying the interference.' (My underlining)."

69 I note that the underlining referred to is that of his Honour; but the report does not reproduce it.

70 If the declaration of trust was the basis for the claim, then different considerations would apply. On the face of it, the exception would be engaged.

71 I should note that it is not clear on either basis for the plaintiff's case that the plaintiff needs to seek to enforce the judgment in Malaysia, as by registering the judgment there. The defendant heavily relied on what he said were insuperable barriers to the registration and enforcement of the judgment in that country. However, while the registration of the declaration of trust might encounter this barrier (and indeed I have evidence of that), the orders to have the defendant provide him with documents that might enable him to procure the transfer of the Malaysian property to himself would not appear to me to do so. I note that the fact that the orders in this case might through such documents have such an effect on the ownership of the property is not determinative of the question of jurisdiction: see Couzens (supra), at 828; and see Doyle (supra), at 658 (possibility that foreign law would not permit the trust to be asserted against property in that jurisdiction did not prevent court from taking jurisdiction).

72 However, the defendant in his affidavit in support of his application deposes that he had in 1999 executed a declaration of trust in respect of the Property in favour of a Jaspal Singh and annexes a copy of the trust deed referred to, which is dated 14 July 1999. It was not made clear to me that the execution of such an instrument made invalid the trust declared in 2001, at least under Western Australian law. Rather, the question on that law would be one of priorities.

73 However, it may be that an issue is raised of the validity under Malaysian law of any trust in favour of the plaintiff subsequent to the 1999 trust. Malaysian law in that regard would need to be proved as a matter of fact. I have limited evidence on the point, in the form of a letter (annexure "B" to the affidavit of the defendant of 31 May 2006) from a firm of solicitors in Malaysia who indicate they act for the beneficiary of the 1999 trust to the defendant and say to the defendant that he lacks and lacked the capacity to execute a trust in favour of any one else. However, I do not draw from that evidence that Malaysian law, if it was relevant, should be clearly understood to raise a question for the validity of the trust declared in 2001 or 2002. I do draw from that evidence, however, that there will at the least be a priority dispute involving the beneficiary of the 1999 trust and the plaintiff, were the plaintiff to obtain the transfer documents from the defendant which the plaintiff seeks and to use them in Malaysia, a matter to which I return, together with the possibility as to invalidity.

74 Further, whether Malaysian law, if proved to go to validity and not priorities, was relevant would appear to depend on whether it was the proper law of the trust: see Halsbury's Laws of Australia, at [85-1605] and [85-1610]. Halsbury's, at [18-605], is as follows (footnotes deleted):

"In the absence of an effective choice, the trust will be governed by the law with which it is most closely connected, having regard to:

(1) the place of administration designated by the settlor;

(2) the situation of the assets of the trust;

(3) the place of residence or business of the trustee; and

(4) the objects of the trust and the places where they are to be fulfilled.

The proper law must be determined by reference to the circumstances existing or contemplated at the time of the creation of the trust."

75 This is a close paraphrase of the Trusts (Hague Convention) Act 1991 (Cth), Sch, Article 7. On that basis, factors (2) and (4), it seems to me, point to the law of Malaysia; however, factors (1) and (3) point to this State.

76 If Malaysian law did go to validity, and is the proper law of the 2001 trust, then, on the authorities I have quoted from, this would go to the jurisdiction of this Court. It would also add to the weight of an argument this Court would decline to exercise any jurisdiction it had, on forum non conveniens grounds. That argument would otherwise (on the assumption the proper law of the trust was Western Australian) rely principally upon the foreign location of the Property, given that the principal evidence relevant to its establishment, would be in this State. No such issues were addressed at the original trial, where there was no reference to the 1999 trust deed.

77 However, it was put to me by the plaintiff that I should not accept the evidence in the defendant's affidavit of 31 May 2006, or the authenticity of the 1999 trust document in support annexed to it, by reason of a prior sworn statement of the defendant in these proceedings that he was "the absolute registered owner" of the Property (his affidavit in these proceedings, sworn on 20 July 2004, par 2, although I note that par 3 refers to an obligation to re-transfer the land to his transferor once certain conditions are met).

78 However, while there is no reference to the defendant holding the property on a prior trust in his defence in this action dated 26 August 2004 filed by his solicitor, I also note the 1999 document is listed in the defendant's affidavit of discovery, sworn 11 April 2005. Further, the defendant in his submissions put to me that the trust was one defeasible on repayment of financial accommodation the beneficiary of the 1999 trust had previously provided, a position which is consistent with the terms of the 1999 trust document if not compelled by them. That position, it seems to me, would represent a basis on which to reconcile the 1999 trust document, if not without some difficulty, with the earlier deposition by the defendant.

79 The plaintiff also reminded me that the 1999 trust deed was in its terms "in consideration of the Beneficiary having provided financial assistance to the Trustee" (that financial assistance is earlier in the document stated to be "friendly loans in total amounting to RM270,000.00 (Ringgit Malaysia Two Hundred and Seventy Thousand) only"). However, the defendant in his statement of affairs in his bankruptcy (in annexure "EC9" to the affidavit of the solicitor for the plaintiff of 12 June 2006) had not disclosed that debt.

80 The defendant in his submissions said to me that non-disclosure was on financial advice he had received based on the terms of his relationship with the beneficiary. Those terms were that the beneficiary could take the Property in satisfaction of the debt. This would be consistent with the terms of the 1999 trust document. On that basis, in proceedings like these, I cannot reject the authenticity of the 1999 trust document.

81 Further, the plaintiff referred me to what the plaintiff says was an incident in other proceedings, CIV 5 of 2002, involving the plaintiff and the defendant, of the defendant seeking to make late changes in his defence. I note, however, that, while at the hearing of the application to grant leave to amend there was some criticism of what the Deputy Registrar saw as "twisting and turning" by the defendant, leave was ultimately given. I do not draw anything from this history.

82 On balance, it seems to me I should not conclude the defendant or the supporting evidence he has provided should be disbelieved for the purposes of proceedings such as these.

83 However, I do not conclude that the defendant has met the standard, in the terms of Magnate, per Hodgson JA, Campbell JA concurring, at [52], quoting from Vacuum Oil, per Jordan CJ, at 243, of "'a reasonably clear case of merits to be shown'; that is, that it appear reasonably clearly that there is a defence capable of producing a different result" that the Court lacks jurisdiction.

84 It seems to me that it is far from clear that the proper law of the trust of 2001 would be considered to be Malaysian: see Halsbury (supra), at [85-1605] and [85-1610]. The defendant has not adduced evidence that clearly shows that Malaysian law would have the effect on validity I have referred to.

85 It is undoubtedly true, on an authority the defendant put before me from the High Court of Kuching, Yii Chee Ming v Teo Ah Khing & Teo Cho Teck & Anor [2005] 5 MLJ 354, that there may well be difficulties in securing the fruits of this judgment in Malaysia. That decision would appear to indicate that there would be no question of registering the judgment of this Court there. However, the judgment does not, it seems to me, reach the question of the execution of transfer documents on which the plaintiff might rely. Of course, on the evidence of the letter from the solicitor for the beneficiary of the 1999 trust there will be a contest between the plaintiff and that beneficiary, raising a question of priorities at least. That question is, however, not one before me, nor is it resolved by my judgment. That question does not, as I understand the authorities, mean that clearly this Court would lack jurisdiction in respect of the trust.

86 However, the question of the possibility of a validity question arising, as well as the matter of the basis for the trust asserted by the plaintiff as arising out of events involving the plaintiff's mother in Malaysia to which I have referred, and the enforceability of any judgment in these proceedings, take me to the question of whether the defendant has made out a case to the relevant standard that the Court would decline to exercise jurisdiction, on forum non conveniens grounds.

87 The doctrine of forum non conveniens is sufficiently described for my purposes, I believe, as follows, in Halsbury at [85-470] (footnotes omitted):

"An Australian court may decline to exercise jurisdiction where it is satisfied that, having regard to the circumstances of the particular case, it is a clearly inappropriate forum for the determination of the proceedings as their continuation would be oppressive and vexatious to the defendant. Ordinarily this will involve the identification of some other foreign tribunal to whose jurisdiction the defendant is liable and which will entertain the proceedings at the suit of the plaintiff. It is prima facie oppressive and vexatious to litigate similar issues in the same controversy in different countries which have jurisdiction with respect to the matter.

... With the exception of cases where the rules of court still require prior leave for the service of the writ outside the jurisdiction, the onus rests on the defendant to satisfy the court that it is a clearly inappropriate forum. Circumstances that may prevent an Australian forum from being regarded as clearly inappropriate include:

(1) the residence or incorporation of the defendant within the forum;

(2) the tort was committed and resulting damage was suffered in the forum;

(3) the plaintiff, being a resident of the forum, entered into the contract out of which the cause of action arose within the forum;

(4) the plaintiff would be effectively denied relief unless able to sue in the forum; or

(5) the existence of legitimate personal and juridical advantages to the plaintiff in the forum."

88 The plaintiff indicated to me that it was his understanding the matter of forum non conveniens had already been addressed by Master Sanderson at the hearing on 29 July 2004 at which directions had been made as I previously indicated.

89 The solicitor for the plaintiff had indeed on 28 July 2004 filed an outline of submissions dated that day, pars 1 - 7 (of 9) of which had addressed the issue. The defendant had previously filed an affidavit sworn on 20 July 2004 to which it appears the submissions of 28 July 2004 referred. Annexure "MMCC" to that affidavit was a document headed "Statement of Defence" (although at that point there was no statement of claim). That document had referred to matters which the document said should cause the Court to decide it was not one in which the matter "should be adjudicated", those matters being (in par 6) the location of the Property, and (in par 7) "all acts, things and execution of documents (if any) will have to be done in Malaysia".

90 However, I do not have transcript, or any record of a decision, in which Master Sanderson addressed the matter of forum non conveniens or of jurisdiction more generally. I also note that the submissions for the plaintiff of 28 July 2004 include (par 8) that "if it appears that it would not be appropriate to have the issues decided in Chambers, there is allowance in the Rules of Court to make appropriate directions for the matter to proceed as though it was commenced by a Writ instead of the Originating Summons", citing authority. The reference to "the issues" can only be to those in the preceding submissions, which as I have said went to the matter of forum non conveniens. The Master in fact made just the order for directions the subject of that subsequent submission.

91 Therefore, I do not conclude that the matter of forum non conveniens, let alone the prior question of jurisdiction itself, had previously been dealt with in these proceedings. Nor, as I have indicated, do I consider the matter had been dealt with at the trial on 29 March 2006 by reference to the material the defendant put before me for the purposes of the present application.

92 In this case, it seems to me to be reasonably clear that of the factors in Halsbury's at [85-470], those being (1), (3), and (5), at least, would have a strong bearing on the issue of forum non conveniens in this case, and to a large extent render a conclusion that this jurisdiction was clearly not an appropriate one difficult, particularly in view of the bankruptcy of the defendant, which would render recovery of costs from the defendant a matter of considerable uncertainty.

93 However, to the extent of the validity question, and the evidence with respect to the trust relationship between the defendant and the plaintiff arising out of dealings involving the mother in Malaysia, there are in this case substantial matters of evidence involving that jurisdiction and its law. There is no suggestion that the defendant is not liable to the jurisdiction of Malaysian courts. There are also questions of the enforceability of the judgment obtained in this case which the defendant has raised which, while not clearly pointing to this jurisdiction not being an appropriate one, seem to me to raise that possibility, on which further evidence might be telling.

94 I have concluded, not without some difficulty, that the defendant has adduced matter which at the relevant standard shows a case on the basis of which the Court might decline jurisdiction on forum non conveniens as that doctrine is understood in this country. This is, of course, different from a conclusion that the matter has been so established such that this Court would decline jurisdiction on forum non conveniens grounds. That remains to be determined on proper evidence and argument.

95 That is, it seems to me, in light of the evidence before me, the defendant has met the standard, in the terms of Magnate, per Hodgson JA, Campbell JA concurring, at [52], quoting from Vacuum Oil (supra), per Jordan CJ, at 243, of "'a reasonably clear case of merits to be shown'; that is, that it appear reasonably clearly that there is a defence capable of producing a different result" that the Court would decline jurisdiction on forum non conveniens grounds.

96 Although this conclusion makes it strictly unnecessary for me to do so, I should consider the second matter on the merits the defendant puts forward, that the Court would have the benefit of argument and evidence on the authenticity of the deed of declaration of trust relied upon by the plaintiff.

97 The defendant in his affidavit in support of his motion deposes that he never signed the declaration of trust in favour of the plaintiff, and refers to an affidavit of a "forensic document consultant" that "was filed in these proceedings". This affidavit is said to support "the view that the signature on the trust deed is not mine". The defence filed on 26 August 2004 specifically denies that the defendant ever executed the deed, and alleges it was a "forgery".

98 The affidavit so referred to, of Steven John Dale sworn 26 August 2004, is not in fact shown in the Court's records as ever having been filed in the action. Indeed, on 2 February 2006 Le Miere J had ordered that the parties advise one another in writing which documents might be tendered at the trial and whether the authenticity of any of the remaining documents was disputed, and on 13 February 2006 he had extended the time for compliance with this order. No such written advice had been served by either party by 29 March 2006, the day of the trial. However, the solicitor for the plaintiff does indicate, in his affidavit in opposition to the present application sworn 12 June 2006 (par 6), that it had been served on him.

99 Further, at the hearing on 13 February 2006, his Honour Le Miere J referred to a facsimile, dated 1 February 2006 from the solicitor for the defendant to the solicitor for the plaintiff. That facsimile had also been referred to at the hearing on 2 February 2006. That facsimile said, among other things:

"This is to advise that my client after due consideration has decided not to proceed with his defence."

100 At that hearing on 13 February 2006, the transcript indicates the defendant's solicitor confirmed "that [decision not to proceed with the defence] still may be the case", depending, apparently, on what documents the defendant's solicitor obtained for the purposes of the extension he had sought for their provision to the plaintiff.

101 Also at the hearing on 13 February 2006, the transcript indicates his Honour noted counsel for the plaintiff had reminded the Court that no leave had been sought by the defendant to adduce expert evidence in accordance with O 36A r 3(2) and (3). There is also no indication that leave had been sought by the plaintiff.

102 I need to bear in mind the circumstances I have just described because of the reference in Vacuum Oil per Jordan CJ, at 243, quoted in Magnate per Hodgson JA, Campbell JA agreeing, at [52], that "circumstances may be relevant to the quality of the evidence that is required to show a defence on the merits in particular cases. Among such circumstances could be the degree of the applicant's default, and hardship to the respondent". I have already indicated the circumstances of the defendant's default requiring a "reasonably clear" case to be shown.

103 In evaluating the quality of the evidence in the Dale affidavit, I note that the original declaration of trust was not available to the deponent, and in that regard he said the following (underlining in the original):

"If the original questioned documents are not available to the document examiner, it is usual only to give a qualified conclusion, if any, about the examination of the non-original questioned documents, subject to re-assessment if I [sic] a more complete examination with the original questioned document should become possible in the future.

...

Therefore because of the dissimilarities which I observed between the Specimen signatures and the questioned signature, it is my conclusion that, subject to the limitations inherent in examination of a non-original, there are numerous indicators that this questioned signature is a simulation of the signature of Man Mahan Singh."

104 There is no evidence the defendant sought to obtain the original document to put before Mr Dale. There are also the circumstances surrounding the non-use of his affidavit or other evidence he might be in a position to give in the period leading up to and including the hearing before Le Miere J on 13 February 2006.

105 On that basis, I am not able to conclude the defendant has met the standard, in the terms of Magnate, per Hodgson JA, Campbell JA concurring, at [52], quoting from Vacuum Oil, per Jordan CJ, at 243, of "'a reasonably clear case of merits to be shown'; that is, that it appear reasonably clearly that there is a defence capable of producing a different result" resting on his affidavit of 24 August 2004.

106 However, as I have indicated, I consider the defendant has met that standard in respect of the case as to the declining of jurisdiction on forum non conveniens grounds.

Whether a rehearing would work an irremediable injustice to the other side

107 On the authorities on applications of the sort the defendant has made, matters of "irremediable injustice", or at least "hardship", to the other side are relevant, including to the matter of the orders that might be made for setting aside (see Magnate per Hodgson JA, Campbell JA agreeing at [51] and [52]). In any event I should address any injustice arising out of the failure of the defendant to meet the 14 day time period provided for the lodgement of the present application under O 34 r 3.

108 The trial was on 29 March 2006, and the application before me is dated 30 May 2006. This represents a significantly greater lapse than the limit of 14 days from the date of trial stipulated for in O 34 r 3.

109 The defendant in his affidavit in support of his application deposes that he had been "unable to make the application any earlier as, since my bankruptcy, I have been unable to afford counsel or legal advice". I note also that the orders on the trial were only extracted by a document dated 2 May 2006, and served on the defendant on 9 May 2006 (affidavit of service of Yvonne Irene Pisano sworn 9 May 2006).

110 I do not have any evidence of prejudice caused to the plaintiff by reason of the delay in the making of this application. Although the orders in this case had been extracted as I have indicated, they had not been executed, through the execution of instruments or a transfer of title (execution is described as an important consideration that might prevent re-opening to more than a limited extent in Allesch, per Gaudron, McHugh, Gummow and Hayne JJ, at [28], read with [9]; see also per Kirby J, at [54]).

111 Accordingly, I would not dismiss this application because of the delay in bringing it, and would extend the time for making the application accordingly. In the event, I did not understand counsel for the plaintiff to contend otherwise.

112 However, that does not exhaust the issue of prejudice.

113 It is true that the plaintiff faces the hardship not only of a re-trial but also of a defendant who has been declared bankrupt.

114 However, there is no indication of forensic prejudice caused to the plaintiff by reason of the need to re-try the matter. It would, however, in the light of the unhappy experience in this matter, be appropriate to make fresh trial directions, which might include an expert evidence order, with a view to an early re-trial.

115 I note that counsel for the plaintiff was aware of the defendant's bankruptcy at the date of the trial and of the risks of proceeding in the absence of such a defendant. I also note that it is not uncommon for orders to be made that the case be restored upon the defendant paying the costs thrown away and the costs of the application, otherwise the judgment is to stand: Seaman (supra), at [34.3.1]. However, in the circumstances of this case, such orders would in my view unreasonably prevent the case being re-heard. See also Brygel (supra), per Batt J, at 14.

116 I also note that it might, on proper application in that regard, be appropriate to make an order as to costs against the former solicitor for the defendant (see the orders made in Magnate); however, no such order should be made without the opportunity for that solicitor to appear and provide evidence and argument as to why no such order should be made.

117 In sum I do not find in this case an irremediable injustice, nor such hardship as would prevent me, in the exercise of my discretion under O 34 r 3, making an order to set aside the judgment of 29 March 2006 and the orders consequent on it.

118 I consider that orders should be made to set aside the judgment of 29 March 2006 and the orders consequent on it, with costs thrown away and costs of the application, on an indemnity basis, to the plaintiff, and with liberty to apply.

119 I also consider that fresh trial directions are required, which should be based on those of 13 February 2006 but of course using new dates. I will hear from the parties, in particular with respect to making an expert evidence order following Form 80. In my view, expert evidence would be needed to address any matter of Malaysian law that was relevant to the validity of the trust on which the plaintiff relies and the enforceability of orders in that jurisdiction of all of the sorts (not limited to the declaration of trust) the plaintiff seeks.

120 I will also hear from the parties as to the dates for the orders and as to a new date for an early re-trial.

121 Further, I will hear from the parties as to the order as to costs of the plaintiff's unsuccessful application to have leave to make further submissions.

122 Finally, in view of the difficult history of this matter, I consider it appropriate to raise with the parties the possibilities for mediation of this dispute. I note there is a prior order for mediation in 2004. However, as my judgment indicates a great deal has occurred since then.