Du Bray v McIlwraith [2009] NSWSC 888

Du Bray v McIlwraith [2009] NSWSC 888

Having regard to the controversy as a whole, the New South Wales proceedings were oppressive. Mr Du Bray commenced them with knowledge of the broader New Zealand claims Ms McIlwraith might bring, including claims and remedies not available in New South Wales, and with the intention of creating a platform to seek a stay of those anticipated New Zealand proceedings. The oppressive character was amplified because this Court either could not effectively grant or would be unlikely to grant the relief he sought concerning possession of the Auckland property. All claims Mr Du Bray sought to pursue in New South Wales could be pursued by cross-claim in New Zealand, where the claim concerning New...

Jurisdiction
Australia
Judgment Date
01 September 2009
Procedural Posture
Equity Proceedings Under the Property Relationships Act 1984 (nsw) Concerning Property and Financial Matters After Termination of a De Facto Relationship / Competing Notices of Motion: Defendant Sought Setting Aside of Service and a Stay; Plaintiff Sought an Anti Suit Injunction Restraining New Zealand Proceedings
Outcome
Proceedings permanently stayed. Application for anti-suit injunction dismissed.
Legal Topics
['forum Non Conveniens' 'stay of Proceedings' 'anti Suit Injunction' 'de Facto Relationship Property Adjustment' 'foreign Land' 'recognition and Enforcement of Foreign Judgments' 'concurrent Proceedings in New South Wales and New Zealand']
['private International Law' 'family Law' 'equity' 'civil Procedure'] ['forum Non Conveniens' 'stay of Proceedings' 'anti Suit Injunction' 'de Facto Relationship Property Adjustment' 'foreign Land' 'recognition and Enforcement of Foreign Judgments' 'concurrent Proceedings in New South Wales and New Zealand']

Case Brief

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Procedural Posture

Equity Proceedings Under the Property Relationships Act 1984 (nsw) Concerning Property and Financial Matters After Termination of a De Facto Relationship / Competing Notices of Motion: Defendant Sought Setting Aside of Service and a Stay; Plaintiff Sought an Anti Suit Injunction Restraining New Zealand Proceedings

Legal Issues

  1. 1 ['Whether the New South Wales proceedings should be stayed as vexatious or oppressive having regard to the controversy as a whole and the concurrent New Zealand proceedings' 'Whether Ms McIlwraith should be restrained from taking further steps in the New Zealand proceedings or commencing or continuing proceedings under New Zealand enactments' 'Whether this Court could effectively grant or would likely grant relief concerning possession of New Zealand land' 'Whether the claims and remedies sought by each party in one jurisdiction could be pursued in the other jurisdiction']

Ratio Decidendi

Having regard to the controversy as a whole, the New South Wales proceedings were oppressive. Mr Du Bray commenced them with knowledge of the broader New Zealand claims Ms McIlwraith might bring, including claims and remedies not available in New South Wales, and with the intention of creating a platform to seek a stay of those anticipated New Zealand proceedings. The oppressive character was amplified because this Court either could not effectively grant or would be unlikely to grant the relief he sought concerning possession of the Auckland property. All claims Mr Du Bray sought to pursue in New South Wales could be pursued by cross-claim in New Zealand, where the claim concerning New...

Court Disposition

Proceedings permanently stayed. Application for anti-suit injunction dismissed.

Orders

  • ['Order that the notice of motion filed by the plaintiff on 15 April 2009 be dismissed.' 'Order that these proceedings 1492/09 be permanently stayed.' "Order that the plaintiff pay the defendant's costs of both the notice of motion filed by the defendant on 14 April 2009 and the notice of motion filed by the...