Parallel proceedings in New South Wales and New Zealand arising from relationship breakdown

In Du Bray v McIlwraith [2009] NSWSC 888, the New South Wales Supreme Court was faced with the not uncommon circumstance of the breakdown of a relationship with connections to Australia and New Zealand. The parties had lived in a de facto relationship for 14 years, beginning in New Zealand and then in Australia. Shortly before their separation, Ms McIlwraith had returned to New Zealand to set up a home there for herself and Mr Du Bray.

Following their separation and unsuccessful discussions as to a property settlement, Mr Du Bray instituted proceedings in New South Wales and Ms McIlwraith shortly afterwards instituted proceedings in New Zealand. Ms McIlwraith sought a stay of the New South Wales proceedings on forum non conveniens grounds.

For the details of the claims, and the legislation under which they were made, see the decision itself. In the result, Barrett J stayed the New South Wales proceedings. He concluded that Ms McIlwraith made various claims in the New Zealand proceedings which could not be pursued in New South Wales and that Mr Du Bray’s proceedings were instituted with the intention of creating a platform to seek a stay of anticipated proceedings by Ms McIlwraith in New Zealand.

Of interest are Barrett J’s conclusions about a claim made by Mr Du Bray in the New South Wales proceedings for possession of property in New Zealand. His Honour noted that, as a result of the Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), the Mocambique rule is abolished in New South Wales and the Court has a discretion whether to exercise jurisdiction in relation to foreign land. However, having regard to the New Zealand legislation relating to enforcement of non-monetary judgments, it appeared that any judgment for possession of land in New Zealand could not be directly enforced in New Zealand. Somewhat curiously, though the New Zealand legislation contemplates enforcement of non-monetary judgments of courts prescribed by orders of the Governor General, no such orders have been made. Mr Du Bray would, of course, be able to pursue such a claim in New Zealand.

Comments on this entry are closed.

  • Dr. Oliver L. Knöfel September 21, 2009, 6:26 am

    Perry,
    I wonder if there is anything new concerning the implementation of the Trans-Tasman Judicial Area? Recently, there have been some overviews on international civil procedure (Mortensen, (2009) 5 J. Priv. Int. L. 213; Knöfel, RIW 2009, 603); but is there already legislation in Australia or in New Zealand on the 2008 Treaty?

  • Perry Herzfeld September 22, 2009, 2:19 pm

    The last I heard was earlier this year, when the Standing Committee of AGs discussed the matter: see http://www.attorneygeneral.gov.au/www/ministers/robertmc.nsf/Page/MediaReleases_2009_SecondQuarter_17April2009-SupportForTrans-TasmanLawReform. According to that, legislation is to be introduced by the end of this year but I haven’t seen anything as yet.