CHRISTIE AND ANOR v FOSTER [2019] NZCA 623

CHRISTIE AND ANOR v FOSTER [2019] NZCA 623 [5 December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA124/2019[2019] NZCA 623BETWEEN CEDRIC ROBERT SANDERSONCHRISTIE AND CAITRIONA DEVINEAppellantAND SOPHIE FLORENCE FOSTERRespondentHearing: 17 October 2019Court: French, Lang and Mander JJCounsel: M J Wenley for AppellantsV T Bruton QC for RespondentJudgment: 5 December 2019 at 3.30 pmJUDGMENT OF THE COURTA The respondent's application for leave to adduce further evidence isgranted.B The appeal is allowed.C The cross-appeal is dismissed.D The decision of the High Court relating to the respondent's claim of undueinfluence is quashed. The respondent's application to set asidethe appellants' notice of objection to jurisdiction in respect of that claimis dismissed.E The respondent's proceeding in the High Court is dismissed.F The respondent must pay the appellants costs calculated for a complexappeal on a band B basis with usual disbursements.G The costs order made in the High Court is quashed. An order that therespondent must pay the appellant costs on a 2B basis with disbursementsin respect of the High Court proceedings is substituted.____________________________________________________________________REASONS OF THE COURT(Given by French J)Table of ContentsPara NoIntroductionBackgroundThe decision of the Associate JudgeAppeal and cross appealApplication to adduce further evidenceThe second amended statement of claimProprietary estoppelInstitutional constructive trustUndue influenceDid the Judge err in finding the Irish executors have standingwhen probate is not yet obtained?Did the Judge err in finding only a New Zealand court hadjurisdiction to determine Sophie's claims relating to Omahaand Rosa House?The Judge's reasoningAnalysisOverviewThe Moçambique ruleExceptions to the Moçambique ruleThe in personam exceptionAdministration of an estate exception to the Moçambique ruleShould the Associate Judge independently of the Moçambiquerule have held the Irish courts did not have jurisdiction becauseonly a New Zealand court can grant the relief sought? (Cross-appeal)Can we be satisfied that an Irish court would hold it hadjurisdiction to consider Sophie's claims when they relate toland in New ZealandConclusion on jurisdictional barIs New Zealand or Ireland the more appropriate forum to trythis proceeding (forum conveniens)?CostsOutcome[1][5][30][32][44][49][50][53][57][62][67][67][73][73][74][79][80][106][110][118][120][121][129][133]Introduction[1] Is it possible for this proceeding to be heard in the Republic of Ireland? And,if so, is New Zealand or Ireland the more appropriate forum?[2] Those were the key issues before Associate Judge Andrew in the High Courtand now before us on appeal. The issues arise in the context of a family disputebetween siblings over their late mother's will. The mother was domiciled in Irelandand her estate contains assets situated in both Ireland and New Zealand.1[3] The appellants Mr Christie and Ms Devine are Irish solicitors. They are thetrustees and executors appointed under the disputed will. For ease of reference, werefer to them as the Irish executors.[4] In the High Court, the Associate Judge held that in so far as this proceedingrelated to land in New Zealand, it could only be heard in New Zealand.2He accordingly set aside the primary protest to jurisdiction filed by the appellants whoare based in Ireland.Background[5] This proceeding was filed by the respondent Ms Sophie Foster. Sophie who isaged 60 lives in New Zealand.3 She is the youngest of three children born to Gordonand Gwendolen (Gwen) Foster. The other two children Michelle and Robert both livein Ireland. What evidence there is before the Court suggests that Sophie and Michellehave been estranged for most if not all of their adult lives. Unlike Sophie and Robert,Michelle has no family of her own and is a welfare beneficiary. Also, according to theevidence before us, Michelle has struggled with mental health issues from an early ageand has never held a job for any length of time.1 It appears there may also be some assets in England but neither party sought to attach anysignificance to them for the purposes of this appeal.2 Foster v Christie [2018] NZHC 3103, [2019] NZAR 315 [High Court Judgment].3 For ease of reference, we refer to all members of the Foster family by their first names.[6] The three children were born in England but the family moved to Ireland in1966. In 1986 Sophie and her then husband emigrated to New Zealand where Sophiehas resided ever since.[7] Gordon and Gwen visited New Zealand on several occasions and purchasedland in this country. As at the date of Gordon's death in December 2010, there wasa property called Rosa House which was registered in the names of Gordon, Gwen andSophie as joint tenants. For present purposes, the most important legal consequenceof a joint tenancy is the right of survivorship. In a joint tenancy, if one of the jointtenants dies, that tenant's interest in the property does not become part of their estate.Instead, the interest of the deceased joint tenant automatically accrues to the remainingjoint tenant(s).4 Accordingly, on Gordon's death, the title to Rosa House passed toGwen and Sophie by survivorship. It did not form part of his estate.[8] Joint tenancy can be contrasted with a situation where co-owners hold theirrespective interests in the property as tenants in common. In this latter situation, on thedeath of one co-owner, their interest in the property becomes part of their estate to bedisposed of in accordance with their will.[9] Returning to the narrative, in early 2011, following Gordon's death,Gwen decided to move to New Zealand. She funded the purchase of anotherNew Zealand property at Omaha. It was registered in her name and Sophie's name asjoint tenants. In November of that year, Gwen returned with Sophie to Dublin.According to Sophie's evidence, her mother always intended to return to New Zealandand the purpose of the visit was simply to sell the family home in Ireland and pack upher belongings for forwarding to New Zealand.[10] However, that did not happen. Gwen never returned to New Zealand.According to Sophie, Michelle deliberately thwarted her mother's plans and pressuredher into staying in Ireland. Sophie further contends that subsequently under Michelle'sundue influence, Gwen changed lawyers and took various actions that were adverse to4 For a discussion of the relevant principles, see Gateshead Investments Ltd v Harvey [2014] NZCA361, [2014] 3 NZLR 516 at [9]–[16].Sophie's interests. The evidence filed by Sophie portrays Michelle as unstable anddeceitful.[11] The first actions Sophie points to are the withdrawals of sums of money oninternational money transfer between December 2011 and July 2015 froma New Zealand ASB bank account that was in the joint names of Sophie and Gwen.It is common ground that all the money in the account belonged to Gwen.Sophie contends the withdrawals were orchestrated by Michelle. The total withdrawnis said to amount to NZD 902,305.[12] On 6 September 2013, Gwen unilaterally severed the joint tenancies of the twoNew Zealand properties Rosa House and Omaha. The severance was registered andthereafter the titles showed Gwen and Sophie as tenants in common in equal shares.The decision to sever the joint tenancies was made after several requests to Sophie tosell Omaha.[13] The appellants say Gwen took this action because Sophie refused to sellOmaha. Sophie denies this. She claims she was concerned the requests to sell wereeither being made by Michelle purporting to send emails under Gwen's name havingtaken over her computer, or if they were coming from Gwen it was because that waswhat Gwen was being told to do by Michelle. Sophie proposed mediation so she couldbe satisfied a sale was really what Gwen wanted. She further claims Michelle refusedto allow Gwen to mediate and therefore there was an impasse.[14] On 15 September 2014, Gwen instructed solicitors to register a caveat againstSophie's half interest in Rosa House and Omaha on the basis of a constructive trust.Gwen swore an affidavit prepared in anticipation of a caveat challenge.In the affidavit, Gwen says she wanted her capital out of the Omaha property andbecause Sophie would not co-operate she severed the joint tenancies. The affidavitalso states that the basis of the alleged constructive trust is that Sophie did notcontribute to the purchase price of either Rosa House or Omaha and it was not intendedshe have an ownership right.[15] Sophie says it was only when she was notified of the caveats that she becameaware the joint tenancies had been severed. She then lodged a caveat over Gwen'shalf share of Rosa House on 20 November 2014. The interest or estate claimed tosupport the caveat is recorded as being an implied trust whereby Sophie isthe beneficiary and Gwen a trustee. An implied trust was also the basis of a latercaveat lodged by Sophie over Gwen's half share in Omaha.5[16] On 5 January 2016 in Ireland Gwen executed what was to be her last will.As already mentioned, the will appointed the appellants Mr Christie and Ms Devineas executors and trustees. The will made no provision for Sophie. The primarybeneficiary under the will was Michelle. Michelle was given the family home inDublin, an investment portfolio and a 75 per cent share of the residue. Robert received€230,000, to be paid out of Gwen's property situated in New Zealand as well as a25 per cent share of the residue. There was no specific devise of the New Zealandrealty which on the appellants' analysis therefore forms part of the residue.[17] Gwen died aged 92 on 30 January 2016 in Ireland.[18] In her affidavit, Sophie says that the timing of the last will, her mother's ageand medical history and the contents of the will leave her in "no doubt" that the willwas procured by Michelle by undue influence. In the same vein, she also has no doubtthat the transfers of the joint tenancies into tenants in common in equal shares was"the result of Michelle's insistence, persistence and persuasion and was not Gwen'sdesire, intention or free will".[19] As Mr Wenley counsel for the appellants put it, Sophie's narrative is that sheis the victim of Michelle's greed and jealousy aided by lawyers who were unable toidentify who the client was or deal with conflict. He says the counter narrative is thatthe severance was a considered act by Gwen acting under legal advice to try andretrieve the Omaha property (wholly funded by her) from the operation of a jointtenancy in response to Sophie's refusal to allow it to be sold. If severance had not5 The records show that Sophie's current husband also lodged a caveat over Gwen's half share inRosa House at the same time as Sophie's caveat was lodged. He does not appear to have lodgeda caveat over Omaha. Sophie's caveat in respect of Omaha was lodged on 2 May 2016, that isafter her mother's death.occurred, Sophie would have taken full title to both properties simply by executinga transmission exhibiting Gwen's death certificate. That would have been contrary tothe original core plan of her parents that Sophie would have one New Zealandproperty. For her part, Michelle has not yet had an opportunity to respond tothe allegations made against her, other than to say they are hurtful and are denied.[20] After her mother's death, Sophie filed caveat proceedings in the High Court inIreland to prevent probate being granted to the Irish executors.[21] Subsequently, on 18 December 2017, Sophie filed the current proceedings inNew Zealand against the Irish executors as first defendant and Michelle as seconddefendant. The statement of claim pleaded two causes of action:(a) Gwen did not have testamentary capacity when she signed the will andthe will was procured by Michelle's undue influence. The remedysought was an order that the Irish executors provide an unredacted copyof the 5 January 2016 will and any other wills made by Gwen whichthey hold.(b) Undue influence in relation to the severance of the joint tenancies andthe withdrawal of the money from the ASB bank account.The remedies sought included orders setting aside the severance,removing Gwen's caveats and directing the Registrar General of Landto transfer both properties to Sophie as well as an order that any fundsstill held in New Zealand from the ASB account vest in Sophie andan inquiry be held into the withdrawals.[22] The statement of claim also contained an assertion that the severance ofthe joint tenancies was contrary to "the long-standing estate planning arrangements ofGordon and Gwen that when the survivor of them died, [Sophie] would inherit theirNew Zealand realty and assets in accordance with their long-standing plans to benefittheir three children broadly equally".[23] A month after Sophie filed the proceedings in New Zealand, Robert filedproceedings in the Irish High Court, the defendants being named as Mr Christie,Michelle and Sophie. Robert's proceeding amongst other things challenges thevalidity of the will on the grounds of Michelle's undue influence. Orders settingthe will aside and restraining the Irish executors from administering it are sought,together with orders for an inquiry into the estate and a refund of any monieswrongfully taken by Michelle. Importantly, Robert also seeks an order for mediationbetween the parties as regards the estate and/or assets and/or administration ofthe estate.[24] As they were entitled to do under r 6.27(2)(e) of the High Court Rules 2016,6Sophie's lawyers effected service of the New Zealand proceeding on the Irishexecutors and Michelle in Ireland without first obtaining the leave of the New ZealandHigh Court.[25] In response the Irish executors and Michelle filed appearances under protest tojurisdiction in accordance with r 5.49 of the High Court Rules. This prompted Sophieto file an application to set aside the protests to jurisdiction.[26] The basis of the protests to jurisdiction was that in all the circumstances,Ireland and not New Zealand was the more appropriate country in which the mattersin dispute should be determined and that Sophie would have a fair opportunity to proveher claim and receive justice in Ireland including claims for testamentary promise andinadequate provision from Gwen's estate under the Succession Act 1965 (Éire).[27] According to an affidavit filed by the appellant Mr Christie, the Succession Actregulates the status of the will. The Act confers jurisdiction on the High Court ofIreland to void a will for lack of capacity or undue influence. Like the New ZealandFamily Protection Act 1955, it also confers jurisdiction to make provision froman estate for the benefit of a child of the deceased. Section 117(1) and (2) ofthe Succession Act states:6 The rule allows service without leave when the subject matter of the proceeding is propertysituated in New Zealand.Where, on application by or on behalf of a child of a testator, the court is ofopinion that the testator has failed in his moral duty to make proper provisionfor the child in accordance with his means, whether by his will or otherwise,the court may order that such provision shall be made for the child out of theestate as the court thinks just.The court shall consider the application from the point of view of a prudentand just parent, taking into account the position of each of the children of thetestator and any other circumstances which the court may consider ofassistance in arriving at a decision that will be as fair as possible to the childto whom the application relates and to the other children.[28] The filing of the protests to jurisdiction in New Zealand triggered r 6.29 of ourHigh Court Rules. The rule is headed "Court's discretion whether to assumejurisdiction" and provides that, if service of a proceeding has been effected out ofjurisdiction without leave and the Court's jurisdiction is protested under r 5.49, thenthe Court must dismiss the proceeding unless the party effecting service — in this caseSophie — establishes two things:7(i) a good arguable case the claim falls within r 6.27 (which as mentionedabove Sophie's claim clearly did); and(ii) the court should assume jurisdiction by reason of the matters out inr 6.28(5)(b) to (d).[29] The matters requiring to be established in r 6.28 (5)(b) to (d) are that:• There is a serious issue to be tried on the merits.• New Zealand is the appropriate forum for the trial.• Any other relevant considerations that support an assumption ofjurisdiction.The decision of the Associate Judge[30] It is trite law that claims relating to land must be determined by the law ofthe country in which the land is situated, in this case New Zealand. The appellants7 High Court Rules 2016, r 6.29(1)(a)(i) and (ii).accept this. They also accept it is a consideration favouring New Zealand as the moreappropriate forum. However, their argument both in the High Court and before us wasthat it was a consideration outweighed by other countervailing factors and it wasa consideration that needed to be tempered by reference to the fact that Irish Courtswere familiar with the equitable principles underpinning Sophie's claim and so morethan capable of applying the relevant New Zealand law.[31] The Associate Judge made the following key rulings:(a) The Irish executors had standing to challenge the jurisdiction,notwithstanding the fact they have not yet obtained probate due toSophie's caveat.8(b) The High Court of Ireland adjudicating on an application underthe Succession Act (Éire) could potentially make an award in favour ofSophie as to Gwen's half shares in the two properties and the Irishexecutors would then be bound to carry out that order.9(c) However, only the New Zealand Court had jurisdiction to hear Sophie'sundue influence claim because it involved land located inNew Zealand.10(d) Sophie's application to set aside the protests to jurisdiction in respectof the claim of undue influence in relation to severance of the jointtenancies was accordingly granted.11(e) Both the Irish and New Zealand Courts have jurisdiction in relation tothe claim concerning the will and the funds originally held in the jointASB account.128 High Court Judgment, above n 2, at [40].9 At [76].10 At [46]–[65].11 At [88(a)].12 At [36].(f) In relation to those claims and having regard to the criteria inr 6.28(5)(b) to (d) Ireland was the more appropriate forum.13(g) Sophie's application to set aside the protests to jurisdiction in relationto those claims was accordingly dismissed.14(h) Sophie was directed to file an amended statement of claim confiningthe causes of action in any amended pleading to the claim concerningthe New Zealand land.15(i) Had the Judge found the Irish Court had jurisdiction in relation tothe land claim, he would have held the Irish court was the moreappropriate forum to hear and determine that claim as well.16(j) Because the New Zealand firm of solicitors and counsel representingthe appellants were involved in actioning the severance of the jointtenancies and were likely to be required to give evidence, they shouldcease acting in these proceedings except in relation to any appeal.17Appeal and cross appeal[32] Following delivery of the High Court judgment, the appellants sought leavefrom the Judge to appeal to this Court, principally on the ground he had erred indeciding that only a New Zealand court had jurisdiction over the land claim.[33] In the appellants' submission, the Judge had applied the wrong test.The critical determining factor should have been whether it was possible forthe Irish courts to make an effective order to grant the relief sought, namelythe transfer of the New Zealand realty to Sophie. Once the Judge had concluded itwas, then he should have moved to address the issue of whether New Zealand or13 At [66]–[79].14 At [88(b)].15 At [88(d)].16 At [79].17 At [80]–[87] and [88(f) and (g)].Ireland — the courts of both countries having jurisdiction — was the more appropriateforum.[34] According to the appellants, the Judge also erroneously conflated the lawgoverning in which jurisdiction a matter should be heard (as required bythe High Court Rules) with which country's law should apply to land. The Judgefailed to consider that while succession to land is governed by the law of the placewhere the land is situated, that would not preclude the High Court of Ireland fromapplying New Zealand law if a party sought its application in the context of a claimagainst Gwen's estate.[35] It was said the appeal could be reduced to two propositions:(a) The place where the land is situated (the lex situs) is determinative ofthe choice of law but that is only one factor in deciding the convenientforum issue.(b) Whether the foreign court can order effective relief is a pre-requisite toa consideration of the convenient forum.[36] The appellants required leave to appeal under s 56 of the Senior Courts Act2016 because the decision of the Associate Judge was an interlocutory decision.[37] The respondent opposed leave being granted but if leave was to be granted,sought leave to cross-appeal on three issues: the standing of the Irish executors,the ability of the Irish Courts to grant Sophie an effective remedy and the finding thatif the Irish Courts had jurisdiction, Ireland was a more convenient forum for the realtybased claims.[38] The Judge was satisfied that leave to appeal and cross-appeal should begranted.18 He also ordered that the High Court proceeding be stayed pendingdetermination of the appeal.18 Foster v Christie [2019] NZHC 459.[39] It appears that at some stage, Sophie filed an amended statement of claim asdirected. We have not been provided with a copy but assume it was substantiallysimilar to the original statement of claim but with the deletions directed by the Judge.[40] Finally, in this section of the judgment, we record four further matters.[41] The first is that Michelle is not a formal party to the appeal and the second isthat there is no appeal against the order regarding legal representation.[42] The third matter is that in response to a submission that an Irish Court couldnot order the removal of the caveats placed by Gwen on Sophie's half share in the twoproperties, counsel for the appellants Mr Wenley told us the caveats could be removedby the simple expedient of Sophie lodging a document for registration.19The appellants have no intention to maintain the caveats and the caveats wouldtherefore lapse, rendering a court order unnecessary.[43] The final matter is that if any of Sophie's claims would now be time barred inIreland, Mr Wenley told us he was authorised to give the appellants' undertaking notto raise a time bar limitation defence or laches.20Application to adduce further evidence[44] Shortly before the fixture allocated for the hearing in this Court,Sophie's counsel Ms Bruton QC sought leave to adduce further evidence. The furtherevidence consisted of an affidavit by Sophie exhibiting a copy of a second amendedstatement of claim to be filed in the High Court along with copies of land transferrecords.[45] The appellants did not oppose the application and we granted leaveaccordingly.[46] The second amended statement of claim pleads two new causes of action inaddition to the original claim of undue influence. The new causes of action are19 Thereby triggering the procedure under s 143 of the Land Transfer Act 2017 (NZ).20 The undertaking does not apply to an application under s 54(3) of the Land Transfer Act."proprietary estoppel" and "institutional constructive trust." In the circumstances, weconsidered it was appropriate to decide the issues on appeal by reference to all threecauses of action and heard argument on each of them.[47] While the appellants did not oppose the further evidence being admitted,they did however express strong concerns about a statement in the affidavit that Sophieintends to file applications in the High Court for the appointment of Perpetual TrustLtd as temporary administrator under s 7 of the Administration Act 1969, the joinderof Perpetual Trust and Robert as parties, and the removal of the Irish executors asdefendants. Mr Wenley argued there was no need for a temporary administrator andto do so simply for the object of preventing the executors from defending a claimagainst the estate and replacing them with a defendant of Sophie's choice wasimproper. He took no issue with Robert being joined and indeed is critical of Sophiefor not having joined him at the outset but says that like Robert, Gwen's personalrepresentatives are also essential parties to any proceeding affecting the title orownership of land in New Zealand.[48] We share those concerns. If the applications have now been filed despitethe stay and despite this appeal against the assumption of jurisdiction by the HighCourt, they should not have been. We take no account of them. And in any event forreasons which will become apparent, they make no difference to the outcome.The second amended statement of claim[49] We now briefly summarise the three causes of action in the second amendedstatement of claim.Proprietary estoppel[50] The first is described as proprietary estoppel. It is alleged that promises weremade by Gwen and Gordon that Sophie would inherit their New Zealand assets andthat in reliance on those promises, both Sophie and her current husband performedwork and services for Gwen and Gordon, including work on the various pieces of landthey owned. Particulars of the alleged promises and work and services are provided.[51] The pleading then goes on to aver that but for the severance of the jointtenancies and the lodging of Gwen's caveats, Rosa House and Omaha would havepassed to Sophie upon Gwen's death, and that in the circumstances it would beunconscionable for Gwen's estate not to be held to the representations that Sophie wasto inherit the New Zealand realty. Then follows an assertion that the two propertiesare beneficially owned by Sophie and that the half share of each which was transferredto Gwen's name as a consequence of the purported severance is held on trust forSophie.[52] The following remedies are sought:(a) Orders that the properties do not form part of Gwen's estate and areheld on trust for Sophie.(b) Removal of the caveats registered by Gwen.(c) An order that the Registrar General of Land transfer the half share ofeach property in the name of Gwen to Sophie.(d) An order that the net income derived from both properties since Gwen'sdeath belongs to Sophie.Institutional constructive trust[53] The second cause of action is described as an institutional constructive trust.[54] The same paragraphs concerning promises and work and services pleaded inrelation to the proprietary estoppel claim are repeated, followed by a pleading thatSophie and Gwen shared a common intention that on Gwen's death, Sophie wouldinherit the property at Omaha and Rosa House if Gwen still owned them. The claimgoes on to aver that Sophie and her current husband acted in reliance and to theirdetriment on the basis of the common intention and that it would be unconscionable ifon Gwen's death the common intentions were not given effect to.[55] The same pleading asserting Sophie's beneficial ownership of Gwen's halfshare as appears under the heading of proprietary estoppel is then repeated.[56] The remedies sought are the same remedies as claimed in proprietary estoppel.Undue influence[57] The third cause of action is undue influence in relation to the severance ofthe joint tenancies.[58] The pleading repeats all the previous paragraphs and asserts that Gwen'spurported severance of the joint tenancies and the lodging of the caveats was notthe product of her free will and was caused by Michelle's undue influence, particularsof which are then provided.[59] The remedies sought are:(a) An order setting aside the severance of the joint tenancies and an orderthat the properties have passed to Sophie by survivorship.(b) Removal of Gwen's caveats (not opposed by the Irish executors).(c) An order directing the Registrar General to transfer the two propertiesto Sophie.[60] We also record there is no challenge to the Judge's ruling that Sophie's claimsrelating to matters other than Rosa House and Omaha must be heard in Ireland. Thesecond amended statement of claim is confined to Rosa House and Omaha.[61] We turn now to address the issues raised both by the appeal and the crossappeal, commencing with the cross-appeal issue about standing.Did the Judge err in finding the Irish executors have standing when probate isnot yet obtained?[62] The Irish executors have applied for probate, but their application is currentlystayed as a result of Sophie's caveat.[63] As the Associate Judge noted, there is some irony in the fact that Sophie havingchosen to bring the New Zealand proceedings against the Irish executors and servethem, now claims they do not have any standing to protest the jurisdiction.21[64] On appeal, Ms Bruton submitted the Associate Judge was wrong to findstanding. She contended that in all the circumstances there is no certainty the Irishexecutors will ever get probate and as a matter of law without a grant of probate,the only power an executor has is the power to bury the body of the will-maker.Ms Bruton further contended the appropriate stance for the executors was to remainneutral and that if a protest to jurisdiction was to be advanced it should have beenMichelle who bore the carriage of the argument.[65] It is however well established that an executor derives their title and authorityfrom the will, not from any grant of probate. That was clearly stated inthe Privy Council decision of Chetty v Chetty,22 and has been followed inNew Zealand.23 As was explained in Chetty, on the death of the will-maker, the latter'srights of action vest in the executor, and that accordingly the executor may instituteproceedings in their capacity as executor before he or she proves the will.24[66] It follows we agree the Associate Judge was correct when he heldthe appellants' authority vested from the time of Gwen's death and probate if grantedwill be mere confirmation of that.2521 High Court Judgment, above n 2, at [37].22 Chetty v Chetty [1916] 1 AC 603 (PC) at 608.23 For example, Pacific Coilcoaters Ltd v Interpress Associates Ltd [1998] 2 NZLR 19 (CA) at 27;and Miah v AMP Life Ltd [2018] NZHC 1634 at [11]; and see further Lindsay Breach Nevill's Lawof Trusts, Wills and Administration (13th ed, LexisNexis, Wellington, 2019) at [19.2].24 Chetty v Chetty, above n 22, at 608–609.25 High Court Judgment, above n 2, at [40].Did the Judge err in finding only a New Zealand court had jurisdiction todetermine Sophie's claims relating to Omaha and Rosa House?The Judge's reasoning[67] The approach taken by the Judge was that before he could assess which ofthe competing forums was the more convenient forum under r 6.28, he first had todetermine that both forums had jurisdiction to hear Sophie's land related claims.He found they did not. Only the New Zealand courts had jurisdiction.[68] On the face of it, this would seem inconsistent with his other finding thatthe High Court of Ireland adjudicating on an application under the Succession Act(Éire) could potentially make an award in favour of Sophie as to Gwen's half sharesin the two properties and the Irish executors would then be bound to carry out thatorder.[69] However, in ruling that an Irish court would be precluded from entertainingSophie's land claims, the Judge considered himself bound to apply a common law ruleknown as "the Moçambique rule".26[70] The rule is derived from a 19th century decision of the House of Lords fromwhich it takes its name.27 The House of Lords held that English courts have nojurisdiction in proceedings primarily concerned with title to or possession ofimmovable property situated outside England.[71] The land at issue in this case is of course situated in New Zealand, not outsideit. However, the Associate Judge found the Moçambique rule "applies both ways".28By that he meant it applied not only to preclude New Zealand courts from havingjurisdiction to hear a proceeding involving land situated overseas, but also to precludea foreign court (here an Irish court) having jurisdiction over land situated inNew Zealand. The Judge said it was established that under New Zealand common26 At [9], [46]–[56].27 British South Africa Co v Companhia de Moçambique [1893] AC 602 (HL). For a discussion ofthe history of the Moçambique rule, see Lawrence Collins (ed) Dicey, Morris and Collins on theConflict of Laws (15th ed, Sweet & Maxwell, London, 2012) vol 2 at 1314–1317 [Dicey].28 High Court Judgment, above n 2, at [54].law, New Zealand courts "will not recognise a foreign court asserting jurisdiction overland in New Zealand, particularly when questions of title are concerned".29[72] The Moçambique rule is subject to two exceptions, these beingthe "in personam exception" and "administration of an estate exception" which we goon to discuss at [79]–[109] below, but the Judge held neither of those exceptionsapplied in this case.30AnalysisOverview[73] The question of whether the Judge was correct to hold there is only oneavailable forum (namely New Zealand) requires consideration of the following threeissues:(a) Did the Associate Judge misapply the Moçambique rule?We hold he did because (a) the rule when applied by New Zealandcourts only governs claims concerning land in a foreign country, notland in New Zealand and (b) in any event Sophie's claims are withinthe established exceptions to the rule. The exceptions are engagedbecause the correct analysis is that Gwen and hence her estate ownthe legal title to a half share of each New Zealand property andthe essence of what Sophie is claiming is that Gwen's conduct hasgiven rise to an equity of sufficient strength to support in personamclaims. Those are very much issues for the administration of Gwen'sestate.(b) Should the Associate Judge independently of the Moçambique rulehave held the Irish courts did not have jurisdiction because onlya New Zealand court can grant the relief sought? (This beingthe cross-appeal.)29 At [52].30 At [55]–[56] and [60].We hold no, because we are satisfied that through its control of the Irishexecutors an Irish court would have the ability to grant Sophiean effective remedy.(c) Can we be satisfied that an Irish court would hold it had jurisdiction toconsider Sophie's claims when they relate to land in New Zealand?We hold yes.The Moçambique rule[74] In modern times, the Moçambique rule has been widely criticised asan anomalous historic relic.31 It is said to be out of step with what is nowinternationally acceptable, as well as being illogical and productive of injustice.There have been calls for it to be abolished in New Zealand and for proceedingsrelating to foreign land to be dealt with solely under the High Court Rules relating tojurisdiction and forum conveniens.32[75] The criticisms appear to be well founded. However, we are satisfied this is notthe case to decide whether the Moçambique rule should still be good law inNew Zealand. That is because in our view, the rule has only ever applied to foreignland and not to land situated in New Zealand. To put it another way, it is not a domesticexclusive jurisdiction rule and cannot be the basis for a New Zealand court to hold thatan Irish court would have no jurisdiction. None of the cases and texts cited to us bycounsel support that approach.31 Hesperides Hotels Ltd v Muftizade [1979] AC 508 (HL) at 536 (and the texts cited therein) andDavid Goddard and Campbell McLachlan "Private International Law: litigating inthe trans-Tasman context and beyond" (New Zealand Law Society seminar, 2012).32 In the United Kingdom, the Moçambique rule has been abolished in part by the Civil Jurisdictionand Judgments Act 1982 (UK), s 30(1). This permits its courts to entertain proceedings for tortsaffecting immovable property situated outside of the relevant part of the United Kingdom "unlessthe proceedings are principally concerned with a question of the title to, or the right to possessionof, that property". The application of the Moçambique rule as between the United Kingdom andother European Union member states has been affected by the Brussels I Regulation(Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civiland commercial matters [2012] OJ L351/1) art 22(1), and the Lugano Convention (Convention onjurisdiction and the recognition and enforcement of judgments in civil and commercial matters[2007] OJ L/339/3 (signed 30 October 2007, entered into force 1 January 2007)) art 22(1), whichboth provide that the courts with exclusive jurisdiction in proceedings concerning immovableproperty are "the courts of the Member State in which the property is situated", subject to limitedexceptions.[76] The authority the Associate Judge relied on to justify his "both ways" approachwas a 1931 decision of this Court in Re Butchart,33 and the principle of internationalcomity which he said was the underlying rationale of the Moçambique rule. However,in our view, neither supports a "both ways" approach.[77] Re Butchart was a case concerning land in New Zealand which was part ofthe estate of a testator domiciled in Scotland. All that this Court held was thatthe applicable law was New Zealand law and therefore the testator's widow anddaughter were entitled to bring a claim under the Family Protection Act. The Courtcertainly proceeded to adjudicate on the Family Protection Act claim itself butthe issue of whether a Scottish court applying New Zealand law would also have hadjurisdiction was never discussed because it was not an issue before the Court.The decision does not say anything about a New Zealand court arrogating to itself anexclusive jurisdiction.[78] As regards international comity, it is highly debatable whether this is a properjustification for the Moçambique rule.34 But in our view even if it is an underlyingrationale, it would not warrant the unprecedented approach taken by the Judge.Comity is invoked for the purpose of declining what is considered to bean inappropriate intrusion into the jurisdiction of another state. It does not logicallyfollow that comity requires a New Zealand court to in effect make that decision forIreland. In our view, comity is irrelevant.Exceptions to the Moçambique rule[79] In any event, even if we are wrong and the Moçambique rule can be invokedby a New Zealand court to preclude the jurisdiction of another court in relation toNew Zealand land, we would find that this case comes within the two establishedexceptions to the rule.33 High Court Judgment, above n 2, at [53] citing Re Butchart (deceased) [1932] NZLR 125 (CA).34 See for example R Griggs Group Ltd v Evans [2004] EWHC 1088, [2005] Ch 153 at [74].The in personam exception[80] As already mentioned, the first of these established exceptions is known as the"in personam exception". Under this exception, a domestic court has jurisdiction toentertain a claim affecting ownership of foreign land if the claim is against a defendantsubject to its jurisdiction and there exists between the parties a personal obligation orequity relating to the land arising out of contract, or trust, or from fraud or otherunconscionable conduct.35 If the exception applies, the court in its equitablejurisdiction can act on the conscience of the defendant by ordering the defendant totransfer or otherwise deal with the land according to the forms of the local law wherethe land is situated. The defendant signs the requisite documentation for fear of beingheld in contempt of court but the effect is to alter the ownership of foreign land allthe same. Where there is a contract or equity between the parties, the Court willenforce it.36 Cheshire, North & Fawcett provides that:37If the conscience of the defendant is affected in the sense that he has becomebound by a personal obligation to the claimant, the court will not shrinkfrom ordering him to convey or otherwise deal with foreign land.[81] The equitable jurisdiction in personam touching land abroad is said to haveexisted for at least 250 years.38[82] In our view, correctly analysed, the estoppel and constructive trust claims inSophie's second amended statement of claim fall squarely within the in personamexception.[83] As already mentioned the first cause of action is pleaded as proprietaryestoppel. It is based on alleged promises made by Gwen and services undertaken inreliance on the promises.[84] Contrary to a submission made on behalf of Sophie, the use of the word"proprietary" does not take this out of the category of an in personam claim for35 Deschamps v Miller [1908] 1 Ch 856 at 863.36 Ewing v Orr Ewing (1883) 9 AppCas 34 (HL) at 40.37 Paul Torremans and James J Fawcett (eds) Cheshire, North & Fawcett Private International Law(15th ed, OUP, Oxford, 2017) at 485.38 R Griggs Group Ltd v Evans, above n 34, at [67], and Ewing v Orr Ewing, above n 36, at 40, bothciting Penn v Baltimore (1750) 1 Ves Sen 444.the purposes of the Moçambique rule. The underlying principle of all equitableestoppel is to prevent a party from going back on their word when it would beunconscionable to do so.[85] What is in essence being claimed in this case is that, although Gwen and henceher estate holds legal title to a half share of the land, an equity has arisen betweenGwen and Sophie in Sophie's favour as a result of an antecedent agreement andconduct. It is a concept familiar to Irish law as it is to New Zealand law.39 So too isthe concept that if Gwen's conscience was affected in the sense that she has a personalobligation to Sophie, then that also binds Gwen's personal representatives.[86] What then of the fact that what Sophie is ultimately seeking is legal andbeneficial ownership of Gwen's half share? Contrary to a submission made byMs Bruton, we do not accept this makes it a claim "against the land" and takes itoutside the in personam exception.[87] The first point is that even if a court were to find that an equity has arisen, ithas a discretion as to how that equity is to be satisfied. The court is not necessarilybound to order an expectation-based remedy. In any event, we do not acceptthe Irish courts are unable to order an effective expectation-based remedy. The Irishcourts can grant relief in respect of the New Zealand land through its control ofthe Irish executors.[88] The same analysis applies to the second cause of action described asan institutional constructive trust. It too is based on promises and services withthe added element of a common intention all of which is said to make itunconscionable for Gwen's estate to retain beneficial ownership of the property.Sophie is thus seeking to vindicate her equitable rights and therefore underthe in personam exception the Irish courts would not be precluded from hearing theclaim due to a jurisdictional bar based on the Moçambique rule.39 Ronan Keane Equity and the Law of Trusts in Ireland (3rd ed, Bloomsfield Publishing Plc,London, 2017) at [26.01]–[26.02], [27.29]–[27.74].[89] In the present case, the Associate Judge acknowledged the existence ofa presumption that equitable claims operate in personam.40 However, he then went onto say that the courts have recognised this is not always true and gave as an examplethe decision of this Court in Schumacher v Summergrove Estates Ltd.41 The Judgecited Schumacher as authority for the proposition that an institutional trust claim wasoutside the in personam exception because it did not rest upon an antecedent obligationsuch as a contract or fiduciary duty but was rather a proprietary interest througha constructive trust.[90] That however is not correct. Schumacher concerned an appeal from a decisionof Woolford J.42 In his decision, Woolford J had held that the in personam exceptiondid apply to a claim of institutional constructive trust.43 His ruling on that point wasnot challenged on appeal and was not disturbed by this Court. The appeal was solelyconcerned with forum conveniens issues and extracts quoted from the judgment bythe Associate Judge in this case concern choice of law issues, not jurisdictional bars.[91] We acknowledge that in another High Court decision, Burt v Yiannakis,a different High Court judge, Asher J, held that an institutional constructive trustasserted in relation to an interest in immovable property should be regarded as a claimin rem for the purposes of the Moçambique rule.44 He reasoned that if in essence theclaimant is asserting an interest in real property, that involves doing indirectly thatwhich a court cannot do directly, namely to assert jurisdiction over foreign land.45However, if that reasoning were correct, it would mean the in personam exceptioncould seldom if ever apply because that is invariably the effect of the exception.[92] In Burt v Yiannakis, Asher J's comments were made in the context of a disputebetween spouses and a finding that specific provisions of the Property (Relationships)Act 1976 prevented equitable claims to immovable property located overseas frombeing heard in New Zealand.46 That context may well have influenced Asher J in40 High Court Judgment, above n 2, at [58].41 Schumacher v Summergrove Estates Ltd [2014] NZCA 412.42 Schumacher v Summergrove Estates Ltd [2013] NZHC 1387, [2014] 3 NZLR 599.43 At [17].44 Burt v Yiannakis [2015] NZHC 1174, [2015] NZFLR 739.45 At [78]–[81].46 At [24]–[48] and [73]. This was said to be the combined effect of ss 4 and 7.making the comments he did about the position at common law, comments which wereof course obiter, that is, not necessary to decide the case. In any event, we preferthe analysis of Woolford J in Schumacher and the cases on which he relied namelyRe Polly Peck International Plc and Webb v Webb.47 In this case, as in those cases,what is being alleged is a personal obligation arising out of unconscionable conductand it is irrelevant that the ultimate purpose of the claimant is to obtain ownership ofimmovable property.[93] The third cause of action in this case — and the only realty claim that wasbefore the Associate Judge — is a claim of undue influence. It relates to Gwen'sseverance of the joint tenancies. Like the other two causes of action, it also is anequitable claim but unlike the other two, it is not based on allegations ofunconscionable conduct by Gwen.[94] The Associate Judge found the claim was outside the in personam exceptionbecause as he put it "the typical remedy" for undue influence is the setting aside ofthe impugned transaction and in his view unlike the signing of a contract or loanagreement in relation to the properties, severance of the joint tenancies was"something which directly affects the ownership of the land itself".48 Accordingly,"[j]ust as in Schumacher, the interest is directly proprietary".49[95] Although the reliance on Scumacher was misplaced, we accept that on its facethe undue influence claim arguably involves a more direct challenge to the underlyingtitle to the land than the other two causes of action. However, undue influence is stillessentially an in personam claim. A further and more fundamental difficulty forSophie in relation to this claim is that as pleaded it appears misconceived and couldnever result in the severance being set aside. We explain why.47 Re Polly Peck International Plc (in admin) (no 2) [1998] 3 All ER 812 (CA); and Webb v Webb[1999] QB 696.48 High Court Judgment, above n 2, at [62].49 At [62].[96] A joint tenant has the right to unilaterally sever the joint tenancy at any stageduring their lifetime.50 Gwen exercised that right with the result that she and Sophieeach became a registered proprietor as to a one-half share on each of the titles.[97] Section 51(1) of the Land Transfer Act 2017 provides that on registration underthe Land Transfer Act of a person as the owner of an estate or interest in land,the person obtains a title to the estate or interest that cannot be set aside. This isthe indefeasibility principle at the core of New Zealand's system of land registration.[98] Indefeasibility is subject to a number of exceptions and limitations. And thereare certainly several New Zealand cases where courts having found a registeredinterest in land has been obtained as a result of undue influence have ordered a transferof that interest.51 All of them have however involved the situation where the undulyobtained registered interest is held by the "influencer" and the transfer ordered as aremedy is a transfer to the person whose will has been overborne.[99] The question then arises as to how the doctrine of undue influence could beused to impeach an otherwise indefeasible legal title in circumstances where(a) the registered proprietor of the legal title was not the influencer but rather the veryperson whose will is alleged to have been overborne and (b) the person whose will isalleged to have been overborne benefitted from the transaction — Gwen acquireda property right — and (c) the alleged influencer did not benefit or at least not in adirect way. Michelle's direct benefit derives from the will. Gwen could have left herhalf share to Sophie in the will or indeed could have sold it during her lifetime.52[100] Under the Land Transfer Act, there could only be two bases on whichthe registered interest Gwen received as a result of the severance could be "set aside".The first is fraud,53 and the second is by virtue of the court's in personam jurisdictionrecognised as an exception to indefeasibility under s 51(4) of the Land Transfer Act.50 Land Transfer Act, ss 48.51 Toman v Toman HC Wellington CIV-2009-485-765, 11 August 2009; Sinclair v Sinclair [2019]NZHC 2640; and Round v Round [2017] NZHC 428.52 It is we accept arguable that an indirect benefit might suffice as an operative benefit in an otherwisevalid claim for undue influence but points (a) and (b) are in our view fatal.53 Land Transfer Act, ss 6, 52(1)(a).[101] In her submissions, Ms Bruton argued that undue influence is a species ofequitable fraud and therefore the fraud exception to indefeasibility applied. It ishowever highly doubtful following the Privy Council decision of Assets Co Ltd v MereRohi that equitable fraud qualifies as fraud for this purpose.54 But even assuming itdoes, it is beyond argument that the title of a registered owner cannot be defeated onthe ground of fraud unless that registered owner was party or privy to the fraud orthe fraud was committed by their agent.55[102] Gwen was not a party or privy to any fraud and nor is it suggested that Michellewas her agent. A claim for rescission of the severance based on fraud equitable orotherwise is therefore in our view untenable.[103] As regards the Court's in personam jurisdiction being invoked as an exceptionto indefeasibility, this Court, in Nathan v Dollars & Sense Finance Ltd, endorsedthe view that an in personam claim for that purpose must have three elements:56(a) It must not be inconsistent with the objectives of the Torrens system.(b) It must involve unconscionable conduct on the part of the currentregistered proprietor.(c) It must be a recognised cause of action.[104] Sophie's claim of undue influence does not contain all three elements.In particular, it does not involve any element of unconscionable conduct on the part ofGwen or her agent.[105] We therefore agree with Mr Wenley that the severance of the joint tenanciescould not have been challenged on the grounds of undue influence either in law orequity during Gwen's lifetime and there is no available challenge against her estate54 Assets Co Ltd v Mere Roihi [1905] AC 176 (PC).55 Land Transfer Act, ss 6 and 52(1)(a).56 Nathan v Dollars & Sense Finance Ltd [2007] NZCA 177, [2007] 2 NZLR 747 at [137].This finding was not affected by the subsequent decision of the Supreme Court in Dollars & SenseFinance Ltd v Nathan [2008] NZSC 20, [2008] 2 NZLR 557.that would entitle Sophie to reverse the severance. The proper target of any undueinfluence claim is the will.Administration of an estate exception to the Moçambique rule[106] Finally, we consider the second exception to the Moçambique rule. It was tothe effect that an English court does have jurisdiction to determine questions of titlerelating to foreign immovables for the purposes of administering an estate if the estatealso includes movables and immovables in England. The usual justification forthe existence of this exception is said to be that an English court can make itsadjudication effective indirectly through its control of the executors or the other assetssituated in England. It is an essentially pragmatic exception, to be applied broadly.57[107] The reason the Associate Judge found the second exception did not apply togive the Irish Court jurisdiction was because he considered the claim Sophie wasmaking in relation to the land had nothing to do with Gwen's estate. Rather, the claimwas that it was Sophie's by virtue of survivorship.[108] We disagree. Although Sophie seeks to characterise her claims as nothing todo with the will or the estate, that is not in our view a sustainable position.[109] Gwen is undoubtedly the legal owner of a half share in each property.Under s 71 of the Administration Act, probate granted by the High Court of Irelandcan be re-sealed in New Zealand. That would enable the Irish executors to registera transmission of Gwen's half share into their names. That cannot be prevented bySophie's caveat on the titles. As submitted by Mr Wenley, the Irish executors wouldthen become the legal owners of the land but hold it subject to Gwen's last will andany modifications made to the distribution/disposition of Gwen's estate bythe High Court of Ireland pursuant to the Succession Act (Éire) or otherwise includingany equitable claims regarding beneficial ownership. We appreciate that Sophie isdesirous of keeping the New Zealand realty out of the estate because of inheritanceand capital gains tax issues but those matters cannot distort the legal analysis which inour view is clear cut.57 Nelson v Bridport (1846) 8 Beav 547.Should the Associate Judge independently of the Moçambique rule have held the Irishcourts did not have jurisdiction because only a New Zealand court can grant the reliefsought? (Cross-appeal)[110] The grounds of this part of the cross-appeal overlap to a significant extent withthe issues arising in our consideration of the Moçambique rule. It will be recalled thatin our discussion of the rule, we have concluded that an Irish court would havethe ability to grant Sophie an effective remedy through their control of the executors.That means this cross-appeal ground must also fail. However, in deference tothe arguments that were raised, we set them out in more detail.[111] It was common ground that the effective remedy is the registration of a transferof an interest in New Zealand land. And that Ms Bruton submitted was beyondthe powers of an Irish court to grant. She said in so far as the Associate Judge madestatements to the contrary, they were wrong. In Ms Bruton's submission,only the New Zealand High Court has jurisdiction to make the in rem orders thatSophie seeks, which jurisdiction arises under the High Court's equitable jurisdictionand the provisions of the Land Transfer Act.[112] Ms Bruton further contended that the appellants' argument about the ability toobtain effective relief in Ireland is based on an incorrect premise that Sophie's claimsarise in the administration of the estate. They do not. Rather, Ms Bruton argued,they arise because of trusts created by agreement during Gwen's life which vestthe land in Sophie upon Gwen's death. Sophie is not seeking relief against the estate.[113] Ms Bruton also argued the Judge was not entitled to make findings aboutthe ability of Irish law to accommodate Sophie's claims without having some expertevidence on Irish law before him and without any evidence that Sophie is bringingclaims under the Succession Act (Éire).[114] We have already addressed the issue as to whether the claims concern the estateand need say no more on that point.[115] We acknowledge as emphasised by Ms Bruton that the New Zealand RegistrarGeneral of Land is not subject to Irish jurisdiction. But the Irish executors mostcertainly are. An Irish court could order the executors to sign the necessarydocumentation to convey legal title of Gwen's half share in the two Zealand propertiesto Sophie and an Irish court would be able to supervise the execution of such an order.[116] Whether Sophie chooses to pursue a claim under the Succession Act in additionto or as an alternative to her current claims in equity is obviously entirely over to her.But whatever choices she may make, we are satisfied that expert evidence is notrequired to establish that the Irish High Court is capable of applying New Zealand lawto the current realty-based claims. The Irish courts are familiar with equitabledoctrines such as estoppel, constructive trusts and undue influence.58 Those doctrinesare an integral part of Irish law and in so far as the New Zealand version of thosedoctrines differs in any respects, it would not be a difficult task for an Irish court toapply the New Zealand version. It would also be open to an Irish court to applythe provisions of the Family Protection Act when dealing with the New Zealand realtyas part of the residual estate if necessary.[117] It follows that in our view, separate proceedings in New Zealand are notrequired to achieve an effective order.Can we be satisfied that an Irish court would hold it had jurisdiction to considerSophie's claims when they relate to land in New Zealand?[118] The final question is whether we can be satisfied the Irish Court would hold ithad jurisdiction in relation to these claims when they involve land in New Zealand.59The parties did not provide us with any expert evidence, for example, as to the statusof the Moçambique rule in Irish law.[119] The usual approach is that in the absence of expert evidence, it is assumedthe law of the other country is the same as New Zealand.60 That approach is sometimescriticised as unrealistic. However, we are comfortable that it is a reasonable approach58 Ronan Keane, above n 39, at chs 13, 27 and 28.59 New Zealand is not a member of the European Union and therefore the Brussels Conventionmentioned by the Associate Judge does not apply: High Court Judgment, above n 2, at [51].60 Dicey, above n 27, at 333-332.to take in the circumstances of this case, having regard to the leading Irish text whichprovides that:61The effect of the Moçambique decision is that the court has no jurisdictionwhen the action concerns:(a) the title to, or right of possession of, land abroad; or(b) the recovery of damages for trespass to land abroad.There are three exceptions to the exclusion of jurisdiction — three cases wherean Irish court will not decline jurisdiction merely because the action is foundedon a disputed claim to title to foreign land. Therese are (a) actions foundedon a personal obligation to the plaintiff; (b) questions affecting foreign landarising incidentally in Irish proceedings; and (c) admiralty proceedings inrespect of trespass to foreign land.Exception (b) is later said to arise in cases where an estate or trust is beingadministered which includes local property and foreign immovables, and perhaps alsoin the context of statutory provisions relating to matrimonial property.62Conclusion on jurisdictional bar[120] We conclude the Associate Judge did err in finding that only a New Zealandcourt had jurisdiction to hear Sophie's claims relating to Rosa House and Omaha.In our view, there is no jurisdictional bar to an Irish court hearing this proceeding.There being two available forums, the question then becomes whether Sophie hasestablished that New Zealand is the more appropriate forum.Is New Zealand or Ireland the more appropriate forum to try this proceeding(forum conveniens)?[121] The factors to be taken into account in determining forum conveniens are wellestablished and relevantly include:63• The relative cost and convenience of proceeding in each jurisdiction.61 William Binchy Irish Conflicts of Law (Butterworths (Ireland) Ltd, Ireland, 1988) at 402–403(footnotes omitted). We note that a second edition of this textbook is due to be released in August2020.62 At 407.63 David Goddard Laws of New Zealand Conflict of Laws: Jurisdiction and Foreign Judgments(online ed) at [30].• The location and availability of documents and witnesses.• The existence of litigation in another jurisdiction and the state of thoseproceedings.• Whether the law governing the dispute to be resolved is New Zealandlaw.• Where any judgment obtained will fall to be enforced.• Whether the defendants' objection to jurisdiction or application for a stayis brought to gain a tactical advantage and not because a trial in the otherforum is genuinely desired.• Procedural advantages in one jurisdiction.• A decision in another jurisdiction that it is forum conveniens.[122] In this case, the subject matter of the proceeding is located in New Zealand andthe law governing the claim will be New Zealand law. Those are strong factorsfavouring New Zealand as the natural forum. It is also significant that Sophie residesin New Zealand as do several of the witnesses she intends to call regardingthe acquisition of the two properties and the services she and her husband provided.[123] Those considerations are not however decisive and in our view they are verymuch outweighed by the countervailing factors pointing to Ireland as the moreappropriate forum.[124] Even Ms Bruton accepted albeit provisionally that if we were of the view thatthe Irish courts had jurisdiction over the realty claims, then probably the New Zealandproceedings should await the outcome of the caveat proceedings in Ireland.[125] In our view, the common sense of the matter is that all the litigation includingall of Sophie's claims (relating to both personal property and land in New Zealand)and the two extant Irish proceedings to which she is a party — being the applicant inone and a defendant in the other — should be heard and determined by the same court.And that can only be the High Court of Ireland. Only the High Court of Ireland candeal comprehensively with the interests of all three children and all issues includingundue influence.[126] Sophie has not yet done so but she has the right as does Robert to seek furtherprovision from the whole of Gwen's estate under the Succession Act (Éire).That seems to us the obvious course of action for them both to follow in addition tothe proceedings challenging the validity of the last will. Sophie also has the right tobring her claims of estoppel and constructive trust in Ireland.[127] Both Michelle and Robert live in Ireland. The alleged wrongdoing on whichSophie (and indeed Robert) rely all occurred in Ireland. And the key witnesses —the Irish solicitors who acted for Gwen in connection with the severance of the jointtenancy, the execution of her affidavit and the will, as well as the health professionalswho attended on her and the people who interacted with her during the critical period— also all live in Ireland.[128] In our view, it is in the overall interests of justice and the parties thatthe proceeding be tried in Ireland. Separate proceedings in New Zealand are notnecessary and nor are they desirable in all the circumstances.Costs[129] Mr Wenley submitted that if the appeal were to be allowed and the cross appealdismissed, then we should make an award of indemnity costs in both this Court andthe High Court to avoid the Irish executors, and Michelle and Robert as beneficiariesbeing financially impacted. It is, he said, important to take into account thatthe Irish executors had a duty to protect estate assets against attack. Further, in hissubmission, the cross-appeal raised propositions that were untenable and had an "AliceThrough the Looking Glass" quality. He said the failure to join Robert as a party wasalso an irregularity which should bear on costs.[130] We agree that the successful appellants are entitled to costs on the appeal andthe cross-appeal. However, in our view indemnity costs are not warranted.While the arguments raised by the respondent have failed, we would not categorisethem as so hopeless as to be in the indemnity costs category. The failure to join Roberthas not caused any prejudice.[131] Costs are to be calculated on a complex appeal on a band B basis with usualdisbursements.[132] As regards costs in the High Court, the Judge made an award of costs in favourof the respondent on a 2B basis with disbursements. In light of this judgment, thosecosts should be reversed and we so order.Outcome[133] The respondent's application for leave to adduce further evidence is granted.[134] The appeal is allowed.[135] The cross-appeal is dismissed.[136] The decision of the High Court relating to the respondent's claim of undueinfluence is quashed. The respondent's application to set aside the appellants' noticeof objection to jurisdiction in respect of that claim is dismissed.[137] The respondent's proceeding in the High Court is dismissed.[138] The respondent must pay the appellants costs calculated for a complex appealand cross-appeal on a band B basis with usual disbursements.[139] The costs order made in the High Court is quashed. An order that therespondent must pay the appellant costs on a 2B basis with disbursements in respectof the High Court proceedings is substituted.Solicitors:Willis Legal, Napier for AppellantsThe Small Law Firm Ltd, Auckland for Respondent