Weinstock v Sarnat [2005] NSWSC 744

New South Wales Supreme Court

Weinstock v Sarnat [2005] NSWSC 744 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 19/11/04, 23/12/04, subsequent written submissions.

JUDGMENT DATE : 27 July 2005

JUDGMENT OF : White J

DECISION : 1. Grant leave to the plaintiff to proceed against the defendant; 2. Dismiss the defendant's notice of motion filed on 23 December 2004, with costs; 3. Grant leave to the plaintiff to file an amended summons which includes paragraph 1A of the amended summons dated 26 November 2004, on condition that Mrs Tamar Beck is added as a third defendant; 4. Costs of balance of proceedings before me ot be plaintiff's costs in the proceedings.

CATCHWORDS : PRACTICE AND PROCEDURE - Continuation of anti-suit injunction - Application to set aside service for lack of jurisdiction - Whether plaintiff seeks relief which might be granted in proceedings for the administration of an estate of a person domiciled in NSW - Asset in issue is a bank account in the name of the deceased - Injunction restraining defendant from continuing foreign proceedings seeking entitlement to bank account - Plaintiff executor contends that bank account is beneficially owned by third party - Defendant later commenced proceedings in the forum under Family Provision Act - Supreme Court Rules Pt 10 r 1A(p) - Held that court had jurisdiction at the time service was ordered - Injunction is necessary to protect the administration of the estate - Injunction continued.

Supreme Court Rules 1970 (NSW) LEGISLATION CITED : Family Provision Act 1982 (NSW) Wills, Probate and Administration Act 1898 (NSW)

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 In re Liddells's Settlement Trusts [1936] Ch 365 Re Siromath Pty Ltd (No. 3) (1991) 25 NSWLR 25 Jabbour v Custodian of Absentee Property of State of Israel [1954] 1 All ER 145 Re Fitzpatrick [1952] Ch 86 Nygh & Davies, Conflict of Laws in Australia, 7 ed Dicey & Morris, Conflict of Laws, 13 ed Whyte v Rose (1843) 3 QB 493 Currie v Bircham (1822) 1 Dowl & Ry 35 CASES CITED : Ewing v Orr-Ewing (1883) 9 App Cas 34 McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623 Stirling-Maxwell v Cartwright (1879) 11 Ch D 522 Hope v Carnegie (1866) LR1ChApp 320 Bunbury v Bunbury (1839) 1 Beav 318; 48 ER 963 Permanent Trustee Co (Canberra)) Ltd v Finlayson (1968) 122 CLR 338 Heilmann v Falkenstein (1917) 33 TLR 383 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892