Perez de la Sala v Perez de la Sala (No 4)

1. [1]

   This judgment deals with a series of interlocutory applications and hearings in proceedings which have an international dimension to them. The parties are related, and, without intending any disrespect, I will refer to them by their given names.

2. [2]

   The proceedings concern the estate of Robert Perez de la Sala (“the deceased”; he is also referred to in some of the evidence as “Bobby”) who died in July 2022 at the age of 86. The deceased was a member of an extremely wealthy family. The family wealth derived from an international shipping business run mainly out of Hong Kong and Singapore. The deceased’s estate alone is said to be worth more than $500 million.

3. [3]

   The family’s fortunes were founded by the deceased’s father Robert Perez de la Sala (“Robert Snr”). Starting in the early 1920s, he worked his way up within a Hong Kong shipping company named John Manners & Co Limited (“JMC”). By 1940 he had become the majority shareholder and chairman of the board. By the time he died in 1967 he controlled, through JMC and another company, Northern Enterprises Limited (“NEL”), a diversified business empire whose activities included shipping, marine engineering, shipping supplies, commercial and residential real estate, and agency businesses.

4. [4]

   Robert Snr and his wife Camila Velasquez de la Sala (“Camila”) had six children, of whom four survived to adulthood. The deceased’s other three surviving siblings were Jerome Anthony Perez de la Sala (“Tony”); Ernest Ferdinand Perez de la Sala (“Ernest”); and Isabel Brenda Koutsos (“Isabel”).

5. [5]

   The deceased married Felicite Terrill Perez de la Sala (“Terrill”) in 1966. They had four children: Maria-Teresa Perez de la Sala (“Teresa”, born July 1967); Edward Robert Perez de la Sala (“Edward”, born August 1968); Maria-Christina Perez de la Sala (“Christina”, born August 1969); and Maria-Isabel Harry (“Maria-Isabel”, born January 1971).

6. [6]

   The deceased appears to have lived for most of his life in Australia. He and Terrill brought up their children here and they were domiciled in Australia when the deceased died.

7. [7]

   Teresa is unmarried and has no children. Edward has three children with his wife Lyndel Perez de la Sala (“Lyndel”). Christina has four children from her marriage to James Morgan Copinger-Symes (“James”), which has ended in divorce. Maria-Isabel has four children from her marriage to Richard Lloyd Harry (“Richard”).

8. [8]

   Teresa, Edward and Maria-Isabel live in Australia, although Edward previously lived in Singapore. Since finishing her university education in Sydney, Christina has lived overseas, including in England, Oman, Singapore, and England again. When the present proceedings were commenced in this Court in 2023, she gave her address as being in Singapore. I was informed in the course of the hearing that she now lives in France.

9. [9]

   James (I assume) comes from an English family but was born in Berlin and grew up in Singapore, Bermuda and Malaysia. He lived with Christina in London and Singapore while they were married. He now lives in Italy. He has never lived in Australia, although he has visited here from time to time.

10. [10]

    The deceased left a will dated July 2019 with a codicil made in January 2020. He appointed Terrill as his executor. Probate was granted to her of the will and codicil by this Court in October 2022.

11. [11]

    The plaintiff in the proceedings is Christina. No provision was made for her in the deceased’s will. In fact, no significant provision appears to have been made for any of the deceased’s children; rather, the deceased’s whole estate, or substantially his whole estate, was left to Terrill.

12. [12]

    It seems that, a few days before he died, the deceased transferred the sum of AUD 20 million to Christina’s ex-husband James by way of gift. Then, a few weeks afterwards, Terrill made a further gift to James of USD 20 million. She is also alleged to have given monies totalling USD 67 million to Christina’s three siblings, Teresa, Edward and Maria-Isabel. Christina believes that these monies came from her father’s estate. She herself received nothing from her mother.

13. [13]

    Terrill is the first defendant in the proceedings. James is the third defendant. Teresa, Edward and Maria-Isabel are the fourth, fifth and sixth defendants.

14. [14]

    Christina’s claim in the proceedings includes a claim for family provision out of her father’s estate under the Succession Act 2006. This claim purportedly extends, in a way which requires clarification and may not ultimately be sustainable, to “notional estate” in the hands of James, Teresa, Edward and Maria-Isabel.

15. [15]

    Apart from the size of the subject estate, there is nothing unusual about the family provision claim. Everyone agrees that it should be, and indeed can only be, determined by this Court. What has caused controversy is that Christina makes wider claims against the family wealth, including her father’s share of it, based on alleged equitable proprietary entitlements which are personal to her. It is these additional equitable proprietary claims which overlap with the issues which have been the subject of litigation in Singapore, as I will describe.

Background and procedural history

1. [16]

   This is the fourth interlocutory judgment to be published in the proceedings. Previous judgments were delivered last year by Richmond J ([2025] NSWSC 835 (22 July, “J1”) and [2025] NSWSC 853 (31 July, “J2”)); and Slattery J ([2025] NSWSC 1018 (8 September, “J3”)). These judgments, and in particular that of Slattery J, set out some of the historical and procedural background. For present purposes, the following summary should be sufficient.

2. [17]

   Robert Snr’s second son Ernest followed him into the family business in the 1950s. When Robert Snr died in 1967, Ernest took his place as the controller of the business. Later Ernest caused a corporate restructuring to take place, whereby assets of JMC and NEL were transferred to six companies which were incorporated in various different jurisdictions around the world (referred to in earlier judgments as “the Nominee Companies”). The Companies are:

3. [18]

   By 2011, the deceased’s son and daughter, Edward and Christina, and his son-in-law, James, were living in Singapore and working with Ernest in the family business. At this point there was a falling out. Ernest transferred assets worth several hundred million dollars from the Nominee Companies into his own personal name.

4. [19]

   These events resulted in 2012 in proceedings in the High Court of Singapore (“2012 proceedings”). The plaintiffs in the 2012 proceedings were the Nominee Companies, which were apparently controlled by Edward, Christina and James. They claimed orders requiring Ernest, as defendant, to account for the assets of the Companies appropriated by him.

5. [20]

   Ernest brought a cross-action against the Nominee Companies and Edward, Christina and James personally. In that cross action he alleged breach by Edward, Christina and James of their duties as directors of the Nominee Companies. They were alleged to have mismanaged the Companies’ affairs.

6. [21]

   For their part, Edward, Christina and James brought a further cross-action against Ernest for damages for misrepresentation. They alleged that they had been induced to move to Singapore and to work in the family business by representations made by Ernest which had been false.

7. [22]

   Judgment was delivered by Quentin Loh J in the High Court of Singapore in 2017: Compania de Navegacion Palomar SA v Perez de la Sala [2017] SGHC 14. There were appeals by several parties which resulted in a judgment of the Court of Appeal of Singapore in 2018: Perez de la Sala v Compania de Navegacion Palomar SA [2018] SGCA 16. The eventual result was that the claim by the Nominee Companies against Ernest for an account succeeded. Ernest’s cross-action and the further cross-action by Edward, Christina and James both failed.

8. [23]

   Ernest’s main defence to the claim against him for an account was to allege that he had been the beneficial owner of the assets appropriated by him from the Nominee Companies.

9. [24]

   One of the issues which arose concerned Robert Snr’s intentions for the future of the family business empire (controlled by him through his majority stake in JMC and his ownership of NEL). The evidence included various letters written by Robert Snr to his children in the 1950s. Among other things, the letters: (1) stated that [NEL’s] 40% shareholding in JMC would “remain in the Lasala family until doom’s day if my sons and my sons’ sons so desire it even if they do not choose to actively work in JMC” (November 1950); (2) stated that it was his wish that NEL “should always remain a FAMILY undertaking and guarantee for the livelihood and wellbeing firstly of ALL my descendants and then other deserving relatives” (July 1957); and (3) described NEL as a “sacred trust for the sole benefit of the family and something to fall back on if everything else turns sour” (May 1959).

10. [25]

    It was contended on behalf of Edward, Christina and James that the letters evidenced that Robert Snr had established a trust for the benefit of his family “out of the NEL shares/assets” (which assets included shares in JMC). But this contention was rejected by Loh J. His Honour found that Robert Snr’s share dealings and the accumulation of assets in JMC and NEL was simply the acquisition and building up of a corporate group. Robert Snr had not superimposed a trust on JMC or NEL. This finding was not the subject of appeal.

11. [26]

    Nevertheless, Ernest’s defence was only partly successful before Loh J. His Honour rejected the claim by the Nominee Companies that their assets were beneficially owned by them. They had no substantial share capital and no apparent trading activities, and must have acquired their assets as trustees for others. His Honour thought that assets had been put into the Companies by Ernest, and that as a result he was the “putative” beneficial owner. But in putting assets into the Companies, Ernest had been using funds and other assets held on behalf of other family members as well as himself. Accordingly the beneficial interest in the Companies’ assets did not belong to Ernest alone. It was shared between him, his siblings and Camila’s estate (although his Honour was unable to determine in what proportions).

12. [27]

    The Court of Appeal upheld his Honour’s finding that the Companies held their assets as nominees rather than beneficially, but did not agree that Ernest, his siblings and his mother were the beneficial owners of the Companies’ assets. Instead the assets were held on resulting trust for JMC and NEL. The Court explained at [5]:

13. [28]

    Later in the judgment the Court of Appeal expressed its conclusion in more detail (at [155]-[156]):

14. [29]

    It followed that Ernest had to account to the Nominee Companies for the assets appropriated by him. And picking up on what the Court of Appeal had said, further proceedings were also instituted (the 2019 proceedings) for the purpose of determining the precise interests of JMC and NEL in the assets of the Nominee Companies under the resulting trust which the Court of Appeal had found to exist.

15. [30]

    The plaintiffs in the 2019 proceedings were the six Nominee Companies. It appears that no defendant parties were formally named. The process in the proceedings was served on JMC, NEL and other potentially interested parties, including members of the Perez de la Sala family individually. Ernest and the deceased both entered appearances in the proceedings.

16. [31]

    The accounting process in the 2012 proceedings and the fresh 2019 proceedings continued on in the High Court of Singapore for 18 months. By this point Christina had separated from James and had fallen out with all the other members of her family. The falling out was exceptionally bitter. Indeed, rather than James being excluded from the family as a result of the breakdown of his marriage, Christina was excluded instead.

17. [32]

    In September 2020 Christina applied to be joined as a party to the 2019 proceedings. She says that she did so in order to assert her own personal claim to a share of the assets which were the subject of the proceedings. But only three days later a settlement was reached between the existing parties. This involved dividing up the assets the subject of the proceedings between the deceased and Ernest, each of whom was to receive hundreds of millions of dollars. The other siblings, Tony and Isabel, appear to have received little or nothing.

18. [33]

    As a result of the settlement, the proceedings were stayed and three months later, in December 2020, they were formally discontinued. Christina’s application to be joined as a party was never adjudicated upon.

19. [34]

    The settlement was recorded in a deed of settlement dated 11 September 2020. A copy of the deed was in evidence before me. The parties to it were the four children of Robert Snr, namely: the deceased; Ernest; Tony; and Isabel.

20. [35]

    The deed provided (cl 2.1) that it was to constitute a full and final settlement of all actions and claims between the parties. The most significant provisions were as follows.

21. [36]

    The parties agreed that the deceased would be entitled to all of the shares in the Nominee Companies, JMC, NEL and various other named companies (cl 2.2). The deceased then undertook to procure the boards of directors of JMC and NEL to execute a deed terminating the resulting trusts in their favour over the assets of the Nominee Companies.

22. [37]

    These provisions gave the deceased effective economic ownership of the corporate group. Clause 2.3 purported to declare that he was the beneficial owner of all assets held by the companies the subject of the settlement (cl 2.3). I say “purported” because it is difficult to see how this provision, taken literally, would be possible when the parties themselves were not party to the proceedings, but nothing appears to turn on this for present purposes.

23. [38]

    The quid pro quo for the settlement was that cl 3.6 then provided for the deceased to procure JMM (one of the Nominee Companies) to transfer a nominated collection of assets to Ernest’s personal account, thereby removing them from the family business and leaving them with Ernest.

24. [39]

    Almost two years passed before the deceased died in July 2022. The present proceedings by Christina were commenced by summons just short of a year later, in July 2023. Initially, the family provision claim was the only claim for relief. The sole defendant was named as Terrill, in her capacity as executor of the deceased’s estate.

25. [40]

    The summons was served upon Terrill and she appeared to defend the claim. The usual interlocutory orders were made for preparation of the claim for trial.

26. [41]

    But three months later, in October 2023, a statement of claim (“SC1”) was filed for Christina. The new statement of claim included the equitable claims to share in the assets of the family, including the assets the subject of the 2020 settlement, as well as (seemingly in the alternative) the deceased’s share of the settlement. The statement of claim named Ernest as the second defendant as well as naming James, Teresa, Edward and Maria-Isabel as the third to sixth defendants.

27. [42]

    There was no difficulty with serving the new statement of claim on Terrill, because she was already actively defending the proceedings. But Ernest, who lived in Singapore, did not appear (if he was ever formally served; there appears to be no evidence about that). Two months later, he died.

28. [43]

    The executor of Ernest’s estate is Ms Elsbeth Turner. She is a Canadian citizen who lives in Vancouver. She obtained probate of Ernest’s estate in Singapore on the basis, not questioned in these proceedings, that his assets (said to total SGD 460 million) were confined to that jurisdiction. Ms Turner did not (and does not) accept the Court’s jurisdiction. For the moment, no application was made on behalf of Christina to bring the issue to a head by applying to substitute Ms Turner as the second defendant and obtain the Court’s imprimatur for extraterritorial service of the new statement of claim upon her.

29. [44]

    Teresa, Edward and Maria-Isabel were served with the new statement of claim. But they did not accept the Court’s jurisdiction and did not appear. Christina’s solicitors attempted to serve James with the new statement of claim. In December 2023 he entered an appearance. But like Christina’s siblings, he claimed that the Court had no jurisdiction, and declined to participate in the proceedings.

30. [45]

    Rather than defend the claims in this Court, the defendants (I include Ms Turner, as executor of Ernest’s estate, in this term) sought anti-suit relief from the High Court in Singapore. Four sets of proceedings were eventually instituted; I will refer to them collectively as the “Singapore anti-suit proceedings”.

31. [46]

    The initial proceedings (number 150 of 2024) were brought in February 2024 in the names of James and Edward (who were then said to be resident in Singapore). They obtained an ex parte interim injunction in their favour from the High Court of Singapore with respect to the equitable claims (the injunction did not extend to the prosecution of Christina’s family provision claim). A few days later, equivalent relief was obtained on behalf of Felicite, Maria-Teresa, Maria-Isabel and Ms Turner.

32. [47]

    Later in the year further proceedings (number 871 of 2024) were brought in the names of Terrill, James and Christina's siblings. They sought declarations that Christina had no entitlement to the family assets as she claimed in the statement of claim. They also claimed anti-suit injunctions against Christina on a final basis. In March last year, equivalent proceedings were brought in the name of Ms Turner.

33. [48]

    A key contention for the defendants, as plaintiffs in the Singapore anti-suit proceedings, was that the subject matter of the equitable claims which Christina had added to the family provision claim in these proceedings had already been dealt with in the previous proceedings in Singapore. In particular, it was pointed out that Loh J had specifically rejected the key allegation that the family assets had been the subject of a trust created by Robert Snr for the benefit of his descendants. This matter was now said to be res judicata.

34. [49]

    As a result of the anti-suit injunctions granted in Singapore in February, little appears to have happened in these proceedings for the rest of 2024. In particular, Christina was unable to take any steps to resolve the jurisdictional objections to the equity claims which had been raised by the defendants. A notice of motion was filed for Christina in March seeking an order for interim provision out of her father’s estate. Argument took place on 11 July 2024 and judgment was reserved.

35. [50]

    In late November 2024 Christina applied to the Singapore High Court to have the anti-suit orders in favour of the defendants (apart from Ms Turner) set aside and their proceedings struck out. In February last year the application came before Chua J. His Honour dismissed the strike-out application. But he did direct, apparently without opposition from the defendants, that their February proceedings should be discontinued, which would result in the anti-suit orders being discharged, and the November proceedings left to continue as a contested action for final relief.

36. [51]

    The discontinuance of the February 2024 proceedings required an application for leave. That application was filed in late February but did not come before the Court for determination until early June, when Lee Seiu Kin J made orders granting the necessary leave and discharging the anti-suit orders.

37. [52]

    In late April, Christina made a further application to the High Court of Singapore to have the Singapore anti-suit proceedings (namely the proceedings filed in November the previous year) stayed. This application was based on abuse of process and forum non conveniens grounds. It was however rejected by Assistant Registrar Tan. Christina appealed, but her appeal was dismissed by Chua J.

38. [53]

    Meanwhile, in January last year, Ms Turner had made her own application by way of notice of motion in this Court. She sought orders declaring that the Court had no jurisdiction over Ernest (or over Ms Turner as his executor) with respect to the equitable claims pleaded against him in the statement of claim or, alternatively, declining to exercise such jurisdiction. The application was made, as is permitted by the Rules, without Ms Turner being required to enter an appearance or acknowledge the jurisdiction of the Court.

39. [54]

    The application was argued before Slattery J in early May. His Honour reserved his decision on the application. While the decision was reserved, the orders were made in Singapore discharging the anti-suit injunctions granted in February 2024. This left Christina free to take further steps to prosecute the equitable claims pleaded in the present proceedings.

40. [55]

    On 22 July, Christina’s legal representatives approached Richmond J, sitting as Duty Judge in this Court, with an amended version of the notice of motion filed the previous March. In its amended form, the notice of motion sought injunctions against all six defendants to prevent them from continuing to pursue the current Singapore proceedings (including the seeking of anti-suit relief in those proceedings). The injunctions were sought on both an “interim” and a “final” basis. The application for interim orders was dealt with by Richmond J, who acceded to it: J1 [26].

41. [56]

    The interim orders made by Richmond J included an injunction against Ms Turner as Ernest’s executor. She had been named as the second respondent to the (amended) notice of motion. The order was challenged by her legal representatives at a hearing a few days later. The challenge succeeded: the purported service of the notice of motion on Ms Turner was set aside, depriving the purported injunction against her of any effect: J2 [10].

42. [57]

    The ground for this decision was that the notice of motion was “originating process” and therefore could not validly be served on Ms Turner without prior leave from the Court, which had not been obtained. The wider questions of jurisdiction with respect to the claim against Ernest’s estate did not need to be addressed.

43. [58]

    Those questions did, however, have to be dealt with by Slattery J when he handed down his decision on Ms Turner’s motion on 8 September. His Honour accepted the arguments for Ms Turner that the Court had no jurisdiction for the purposes of the claim against Ernest or his estate.

44. [59]

    There has been no application for leave to appeal against Slattery J’s decision. Christina’s legal representatives accept that, as a result of the decision, no claims can be pursued against Ernest’s estate in these proceedings. But this does not affect the claims against the remaining defendants.

45. [60]

    As already mentioned, the anti-suit injunction granted by Richmond J was granted on an interim basis only. Whether it should be made on a “final” basis remained to be determined. The remaining defendants (who are commonly represented, and to whom I will refer hereafter, for convenience, as “the defendants”) retained solicitors and counsel for the purposes of resisting that application. Insofar as they were acting for James, Teresa, Edward and Maria-Isabel, the solicitors did not file appearances, and counsel appeared on the basis that their clients did not submit to the jurisdiction of the Court.

46. [61]

    The interim orders were expressed to expire at 5 pm on 30 July. By consent, the orders were on that day replaced with an undertaking from the defendants not to apply for anti-suit relief in Singapore until 14 days after judgment had been given on the claims for “final” relief in the motion.

47. [62]

    This undertaking did not prevent the defendants (and Ms Turner) from moving forward towards the trial of the current Singapore proceedings. Case management directions had previously been made in those proceedings which required Christina to file her affidavit evidence by later in the year.

48. [63]

    The proceedings found their way to me in the Expedition List and I have ordered that they be expedited. I also agreed to hear Christina’s motion on a “final” basis.

49. [64]

    The motion initially came before me for hearing on 2 October. But it did not ultimately proceed. I pointed out to counsel for Christina some problems with the formulation of the statement of claim. It was agreed that the application would be adjourned to allow an amended version to be filed. The parties also agreed to ask the Singapore High Court to defer the timetable for the current Singapore proceedings until 3 November.

50. [65]

    The amended statement of claim (“SC2”) was filed on 28 October. As well as making amendments to some of the prayers for relief which I had identified as being problematical, it deleted all reference to the claim against Ernest’s estate.

51. [66]

    The motion hearing resumed before me on 10 November. The evidence was presented, and submissions were made. Among other things, counsel for the defendants criticised the form of SC2. They submitted that the problems which I had identified in SC1 had not been solved.

52. [67]

    It was not, however, possible to deal finally with the motion. In the course of argument questions arose about the purportedly non-submitting basis upon which the solicitors and counsel for James, Teresa, Edward and Maria-Isabel were appearing. In particular, reference was made to the notice of appearance entered by James in December 2023. Counsel for the defendants then foreshadowed an application to withdraw that appearance. Also, the question was raised whether Teresa, Edward and Maria-Isabel, as Australian residents, had any basis for contesting the jurisdiction of the Court.

53. [68]

    It became clear that the determination of these questions could affect the outcome of the motion and should be resolved first. The proceedings were adjourned for further hearing until 17 November for the purpose of dealing with them.

54. [69]

    On 13 November, Christina's solicitors served a further amended version of her notice of motion in addition to the claims for anti-suit and anti-anti-suit injunctions on a “final” basis, the further amended version of the notice of motion sought orders confirming the service, on each of James and Christina's three siblings, of SC1 (and SC2) and also the amended notice of motion from July.

55. [70]

    On 14 November the defendants’ solicitors served a competing notice of motion on behalf of James. The motion sought leave to withdraw the appearance previously entered by him. It also sought a declaration that the Court had no jurisdiction with respect to the claim against him and setting aside service, or purported service, of SC1 (and SC2) and the amended notice of motion. Alternatively, the motion sought an order declining to exercise jurisdiction with respect to the claim.

56. [71]

    As already noted, the appearance entered by James had been entered by him in person. The notice of motion however was signed by James’ solicitor, and counsel appeared to argue the motion for James on that solicitor’s instructions. I permitted this course, and granted leave to file the notice of motion, even though the solicitor was not formally on the record, on the solicitor’s undertaking that if the application to withdraw the appearance was unsuccessful, he would forthwith file a notice of his appointment as James’ solicitor. I also granted leave to Christina to amend her motion in accordance with the proposed further amended notice of motion.

57. [72]

    I first received the evidence and heard argument on the application by James to withdraw his December 2023 appearance. Deferring my decision for the moment, I turned to the question of appearance by, and service on, Teresa, Edward and Maria-Isabel. Their counsel accepted that the Court had jurisdiction with respect to the claims against them (although counsel foreshadowed an application to have the Court decline to exercise it). There was accordingly no reason why their legal representatives should appear on a limited basis, and this was accepted by counsel, who indicated that formal appearances would be entered forthwith on their behalf.

58. [73]

    There was no dispute that service of SC1 had been effected on Teresa, Edward and Maria-Isabel, or on their solicitors on their behalf. They were clearly aware of the claim made against them in the proceedings. With the concession that the Court had jurisdiction, there was no reason not to confirm the service. I made orders accordingly, without opposition from counsel for the defendants.

59. [74]

    I then returned to Christina’s application for anti-suit injunctions. Counsel for the defendants however asked me for it to be further deferred. Counsel had acknowledged, in the course of argument about withdrawal of James’ December 2023 appearance, that if I did not permit the appearance to be withdrawn, James’ challenge to jurisdiction would fail. But this did not affect James’ application to have the Court decline to exercise its jurisdiction. And there was also the foreshadowed application on behalf of Christina’s siblings to the same effect. Counsel submitted that these applications should be dealt with before Christina’s anti-suit application.

60. [75]

    By this stage the timetable in the Singapore proceedings required Christina to file her affidavit evidence by 28 November. The defendants had declined to agree to any further extension. Counsel for Christina asked me to proceed to determine her anti-suit application without further delay.

61. [76]

    I then announced my decisions, giving a short oral summary of the conclusions I had reached.

62. [77]

    I decided to refuse James’ application to withdraw his December 2023 notice of appearance. This meant that the question of the Court’s jurisdiction over the claim against him fell away.

63. [78]

    I also decided not to defer Christina's application for anti-suit injunction any further. On the application itself, I decided to grant anti-suit relief, but only on a further interim basis. I considered that there remained significant apparent defects in the pleading of the equitable claims which might lead to their being summarily dismissed. But I was of the view that any debate about the maintainability of claims should take place in the context of these proceedings, and accordingly made orders restraining the remaining defendants from further pursuit of the Singapore proceedings (including the making of any anti-anti-suit application) until that issue could be brought before this Court and determined.

64. [79]

    In theory, this left for determination James’ application (and the foreshadowed application by Teresa, Edward and Maria Isabel) to have the Court decline to exercise its jurisdiction over Christina's equitable claims against them. But the arguments on this point were effectively covered by the arguments in the anti-suit application concerning the suitability of this Court as a forum for determining those claims (see below). In resolving those arguments in Christina's favour, I had effectively disposed of the question of the Court declining jurisdiction. No further mention of that question was thereafter made by counsel for the defendants.

65. [80]

    One thing which I omitted to deal with at the hearing on 17 November was the question of service of the amended notice of motion. Again there was no dispute that service of it had been effected on the solicitors for the defendants. That service was informal for James (because it was not effected at the address specified in his notice of appearance) and for Teresa, Edward and Maria-Isabel (because at the time they were disputing the Court’s jurisdiction and had not entered an appearance). But following my refusal of James’ application to withdraw his appearance, and the acceptance of jurisdiction on the part of Teresa, Edward and Maria-Isabel, there was no reason not to confirm service of the notice of motion on them.

66. [81]

    I had on 17 November been asked by counsel for Christina to make such orders, but omitted to deal with the request on that day. Without opposition from counsel for the defendants, I later made an order under the slip rule adding those orders to the orders made on 17 November.

67. [82]

    On 24 November, the plaintiffs filed a further version of the statement of claim (“SC3”). Notices of motion were then filed from the defendants on 26 November for summary dismissal, or the striking-out, of the equity claims. The applications came before me on 4 December. Following argument from the parties, I reserved my decision.

68. [83]

    On 16 December I convened a hearing at which I announced my conclusion on the summary judgment application. I took this step to see whether, having been informed of my conclusions, the parties would be able to agree orders to give effect to them.

69. [84]

    I concluded that part of Christina’s equitable claim should be summarily dismissed, and the remainder struck out, but with liberty to replead. It emerged, however, that the parties were unable to deal with the consequential issues until they had seen my reasoning in detail.

70. [85]

    That reasoning is now set out in this judgment. I have also set out, in revised and expanded form, my reasons for the decisions I made on 17 November to refuse James’ application for leave to withdraw his December 2023 appearance and, on Christina's application, to grant anti-suit injunctions against the defendants on a further interim basis.

71. [86]

    I will, when addressing the summary judgment application, describe in detail the way in which the equity claims are formulated. But it is convenient at this point to give a short summary.

72. [87]

    There are two distinct equity claims. I will refer to them as the “descendants’ trust claim” and the “equitable estoppel claim”.

73. [88]

    The descendants’ trust claim is a complex claim by which it is contended that Christina has a direct entitlement as a trust beneficiary to a share in the assets of the shipping empire built up by her grandfather, Robert Snr. The contention originally (that is, in SC1) involved three Steps. A Fourth Step has been added in SC2 and SC3.

74. [89]

    The First Step is that a trust came into existence during Robert Snr’s lifetime in favour of his descendants. The claim relies ultimately upon the terms of the correspondence between Robert Snr and members of his family in the 1950s to which I have already referred.

75. [90]

    The Second Step in the argument is that the terms of the trust so established in Robert Snr’s lifetime came to be impressed upon the assets of the Nominee Companies through which the family business, or at least a substantial part of it, came to be conducted. By a third, similar, Step, it is contended that the terms of the trust came to be impressed upon the assets appropriated to himself by Christina’s uncle Ernest and which were later the subject of the September 2020 settlement.

76. [91]

    This explains why Ernest was named as a defendant in SC1. But, as already noted, following Ernest’s death it has been decided that the Court has no jurisdiction with respect to any claim against his executor, Ms Turner, with respect to the assets formerly held by him. No relief is therefore now sought against Ernest’s estate. A claim is however maintained against the settlement proceeds in the deceased’s hands, on the basis that those assets were impressed with the terms of the trust which had originally been established in the days of Robert Snr. This is the Fourth Step.

77. [92]

    Intertwined with the pleading of Steps One to Four in each version of the statement of claim is a claim alleging what is described as an “inter-generational equitable estoppel”. This is said to entitle Christina to a one quarter interest in her father’s estate. But this claim is independent of the descendants’ trust claim, as I have described it. As ultimately presented in SC3, it really forms part of the equitable estoppel claim, and it was so treated in the argument on the summary judgment application. For the purposes of this judgment, I have therefore treated it as part of that claim.

78. [93]

    The essential allegation in the equitable estoppel claim is that, when Christina went to work in the family businesses in Singapore, she did so as a result of an understanding, engendered by her father, that she would receive an interest in the family business consistent with the declarations made by Robert Snr in the earlier correspondence. When the litigation with Ernest broke out, the representations allegedly came to fasten on the proceeds of the litigation, and later the settlement.

79. [94]

    Christina’s case characterises these representations as promises of a proprietary interest in the assets of the family business, and ultimately in the settlement proceeds in the deceased’s hands. It is alleged that Christina acted to her detriment in moving to Singapore and thereafter working on the litigation, and is therefore entitled to relief by way of estoppel giving effect to the allegedly promised interest in the deceased’s share of the settlement.

80. [95]

    SC1 and SC2 did not specify the extent of Christina’s proprietary interest in the assets the subject of the alleged trust and estoppel. But in SC3 the extent of the interest is specified, in each case, as a one quarter share of the proceeds received by the deceased from the settlement. Thus, while the claims are legally distinct, the end point of each claim is, for practical purposes, the same.

81. [96]

    I think it is fair to say that the equitable estoppel claim has only emerged gradually as an independent basis for relief against the deceased’s estate. It was not easy to discern in SC1. It became somewhat clearer in SC2, with the abandonment of the claim against Ernest. It has become clearer still in SC3.

Application to withdraw appearance by James

1. [97]

   Evidence: As already noted, James was first named as a defendant in the proceedings, alongside Christina’s three siblings, when SC1 was filed. That occurred on 16 October 2023. Two days later, on 18 October, the proceedings were before Kunc J for mention. There was no appearance for any of the newly named defendants and the proceedings were adjourned for further directions before Slattery J on 6 December.

2. [98]

   On 17 October, Christina’s solicitor in these proceedings, Mr Ben Dornan of L Rundle & Co, wrote to James enclosing a copy of the statement of claim. The letter was addressed to James at a property in Berkshire in England, but was actually only sent by email. The email address was presumably the email address Mr Dornan had had been given for James by Christina.

3. [99]

   In the email, Mr Dornan invited James, in order avoid the need for personal service, to acknowledge service of the statement of claim by return email, or to have any legal representative he may have retained on his behalf contact L Rundle & Co. On 19 October, Mr Dornan sent a follow-up letter, enclosing a copy of the orders made by Kunc J on 18 October, and on 27 October, he sent a further follow-up letter.

4. [100]

   By this point, the sums of money which James had received from the deceased before his death, and from Terrill after the deceased’s death, had become the subject of proceedings in London (in the Central Family Court of England and Wales). Christina had sought to have the previous property settlement between her and James altered to take account of those payments. This was resisted by James. Terrill intervened in support of her former son-in-law.

5. [101]

   For the purposes of defending Christina’s application in the London proceedings, James, through his London lawyers, sought disclosure of any documents, including statements or affidavits, filed on her behalf in these proceedings. The request was made in a questionnaire administered to Christina for the purposes of the London proceedings. In a formal response to the questionnaire given on Christina’s behalf by her London lawyers on 7 November, she stated:

6. [102]

   The solicitor acting for James in the London proceedings was Ms Hannah Sisk of the firm Keystone Law. On 17 November, not having received any response to any of the emails addressed to James personally, Mr Dornan wrote to Ms Sisk. He enclosed a copy of the statement of claim and asked whether she had instructions to accept service.

7. [103]

   There was no immediate response from Ms Sisk. On 22 November, Mr Dornan wrote to Terrill’s solicitors in these proceedings, HWL Ebsworth (“HWLE”), concerning the upcoming hearing on 6 December. He advised that, despite efforts to serve the new defendants, only Edward had been served. He stated that, if there was no acknowledgement of service by the other additional defendants (including James), the plaintiff would file a motion seeking orders for substituted or deemed service, and bring the motion before Slattery J on 6 December.

8. [104]

   On 30 November, HWLE replied. HWLE noted what Mr Dornan had said in his letter of 22 November, and asked to be updated on the question of service on the remaining defendants.

9. [105]

   The letter also raised the question of access to material in the London family law proceedings. HWLE stated that both the material served in support of Christina’s claim for family provision, and her pleaded equitable claims in SC1, were relevant to her financial position for the purposes of those proceedings. The circumstances were such that the parties should be released from their confidentiality obligations under Harman v Secretary of State for the Home Department [1983] 1 AC 280 (at least in Australia, it is an implied obligation, not an implied undertaking: Hearne v Street (2008) 235 CLR 125 at [97]). In those circumstances HWLE saw no reason why Christina could not consent to the material in these proceedings being made available in the London family law proceedings, and vice versa.

10. [106]

    On the same day, Ms Sisk responded from London to Mr Dornan’s letter of 17 November. She stated: “We are instructed that we may accept service on behalf of our client”.

11. [107]

    On the following day, Mr Dornan replied. He formally enclosed, by way of service, SC1 and the accompanying notice to the defendant, pursuant to the rules as applicable to extraterritorial service of process. He advised that the proceedings were listed for directions before Slattery J on 6 December.

12. [108]

    On the same day, 1 December, Mr Dornan replied to HWLE’s letter of the same day. He advised that only Maria-Isabel remained to be served. Concerning the issue about access to court documents, he wrote:

13. [109]

    The notice of appearance eventually filed for James is signed by him and bears the typewritten date 5 December 2023. The evidence does not indicate precisely when James signed the document, and it was not filed until two days later.

14. [110]

    When the proceedings came before Slattery J on 6 December, there again was no appearance for any of the additional defendants joined the previous October. His Honour extended the timetable as between Christina and her mother, and listed the proceedings for further directions on 20 February the following year. He ordered that any party that filed an appearance in the proceedings might file a motion for interlocutory relief from the Court, returnable on that day, and directed that Terrill provide copies of the orders to all other defendants in the proceedings.

15. [111]

    James’ notice of appearance was filed with the Court on the following day, 7 December. The filing was done electronically. There was no evidence whether this was done by James himself or by someone acting on his behalf. The notice described James as being self-represented. It gave his address as “C/O” Terrill’s address in Carrington Avenue, Mosman.

16. [112]

    Also on 7 December, a procedural hearing took place in the London proceedings, before his Honour Judge Hess of the Central Family Court. Mr R Todd KC appeared for James, and Mr J Warshaw KC for Christina.

17. [113]

    One of the issues which arose at the hearing concerned access to documents from these proceedings. Christina’s legal representatives had prepared a draft minute of order which recited that James had submitted to this Court’s jurisdiction for the purposes of the proceedings. That was vehemently contested on James’ behalf by Mr Todd KC.

18. [114]

    The transcript records the following exchange (emphasis added):

19. [115]

    Later in the course of the argument, the transcript records Mr Todd as saying (emphasis added):

20. [116]

    In the end, no order was made about the subject and it was left for further discussion between the solicitors for the parties.

21. [117]

    The next evidence to which I was referred consisted of a series of emails from James to Mr Dornan, and which began about five weeks later, in mid-January 2024. In his first email, which was laced with gratuitous personal criticism of Mr Dornan and his firm, James said that he was unable to comprehend the claims made against him by Christina in SC1. He referred to what he described as the “dismissal” of Christina’s claims by the Singapore High Court and Court of Appeal. He demanded to know the basis for her claims. He ended:

22. [118]

    Further emails in the same vein followed on 19 and 25 January.

23. [119]

    By early February, James and Edward had retained the services of a Singaporean lawyer, Mr Nicholas Poon, of the firm Breakpoint LLC. On 13 February, the Singaporean anti-suit proceedings were commenced, with the plaintiffs initially being Edward and James.

24. [120]

    Two days later, on 15 February, Mr Poon replied to an earlier letter from Mr Dornan concerning the equitable claims in the present proceedings. Mr Poon stated:

25. [121]

    On 19 February, Mr Dornan wrote to HWLE concerning the upcoming hearing before Slattery J. After quoting the paragraph from Mr Poon’s letter of 15 February (which I have set out above), Mr Dornan stated:

26. [122]

    At the directions hearing before Slattery J on 20 February, counsel appeared for James and Christina’s siblings on the basis that they did not submit to the jurisdiction of the Court. A direction was made allowing Christina to apply for anti-suit relief, but it is difficult to see how this would have been possible given the anti-suit orders in place against Christina in Singapore. At all events, no such application came forward.

27. [123]

    In March, the correspondence between James and Mr Dornan resumed. James continued to maintain that the Court had no jurisdiction over him. He asserted that he had only entered an appearance so as to be able to obtain access to the documents in these proceedings for the purposes of the London proceedings. For his part, Mr Dornan made no application to bring the questions of service on and appearance by, James, to a head. Those questions appear to have remained in abeyance, until they were raised in the course of the hearings before me as I have described.

28. [124]

    In his affidavit of support of the application, James deposed (and it is not disputed) that he has never lived in Australia, and has no relevant connections with this country. Concerning the December 2023 notice of appearance he deposed:

29. [125]

    Submissions: There was some debate between counsel for the parties about whether, apart from voluntary submission, Christina’s claim against James was within the jurisdiction of the Court. Counsel for Christina relied in that regard upon various grounds for extraterritorial service in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (see r 11.4 and sch 6).

30. [126]

    But this was very much an alternative position. Counsel’s primary argument was that no question of jurisdiction arose because James had voluntarily submitted. In the end, I did not understand counsel for the defendants to dispute that, if the application to withdraw James’ notice of appearance failed, the debate about the Court’s jurisdiction under the Rules would fall away. Given the conclusion which I have reached, it is unnecessary to say anything further about the topic.

31. [127]

    Putting these matters aside, the argument presented by counsel for the defendants in support of the application was a simple one. Counsel invited me to accept that, as James deposed in his affidavit, he only entered the appearance because of a belief that it was a necessary step to obtaining release of the documents filed by Christina in these proceedings, so that they could be used in the matrimonial property proceedings in London. James had no intention to submit to the jurisdiction of the Court. The submission was that, in effect, James had entered the appearance by mistake, although counsel did not expressly use that term.

32. [128]

    In their response, counsel for Christina first drew my attention to Ms Sisk’s email to Mr Dornan of 30 November 2023 stating that she had instructions to accept service. Counsel submitted that this amounted to an agreement to accept service for the purposes of UCPR r 10.6, which had been taken up by Mr Dornan the following day. In counsel’s submission, that service would remain effective, even if, for some reason, the Court concluded that James was entitled to withdraw the subsequent notice of appearance.

33. [129]

    But counsel submitted that the Court should not be so satisfied. Counsel pointed out that James had retained law firms to act for him in London and also in Singapore (at least, from February 2024). And he appeared to have received assistance from Mills Oakley in conduct of these proceedings, at least from March 2024. This last submission was based on an affidavit served by James in March 2024, which was witnessed by a solicitor from Mills Oakley.

34. [130]

    Counsel argued that James had simply made a forensic decision to file the notice of appearance on 7 December 2023. There was no justification for the Court allowing him to go back on that decision.

35. [131]

    Counsel also raised delay as a discretionary answer to the application. Counsel submitted that James had been challenged in correspondence prior to the hearing on 20 February 2024 about having entered an appearance, but took no action to withdraw the appearance on the ground of alleged mistake at the time.

36. [132]

    But in reply, counsel for the defendants submitted that there had been delay on Christina’s part as well. Counsel pointed out that Christina had taken no action to bring the question of service and appearance to a head. Indeed, even after Christina began her anti-suit application in July, she apparently acquiesced in counsel appearing for James, along with Christina’s siblings, on the footing that no appearance had been entered, and that the jurisdiction of the Court was contested.

37. [133]

    Conclusions: The starting point for evaluating the parties’ submissions is that, despite everything said on James’ behalf in correspondence and in his affidavit, he in fact entered an appearance in these proceedings which was unconditional. The onus lay on him to demonstrate why he took a deliberate procedural step which involves submission to the Court's jurisdiction if he did not intend to do so.

38. [134]

    To the extent that the answer to this question depends upon James’ intention, it was his intention as at the date the appearance was entered, 7 December 2023, which is relevant. The evidence of James's subsequent representations and conduct is only relevant to the extent, if at all, that it bears on what is intention was at that time.

39. [135]

    It is clear from the documentary evidence that in the lead-up to the hearings on 6 December (in this Court) and 7 December (in London) Christina's lawyers were trying to use the supposed Harman difficulty as a lever to force James to enter an appearance. I say “supposed” difficulty because the Harman obligation applies only to documents obtained by compulsion from other parties, or from non-parties on subpoena. It is hard to see why the obligation would have prevented Christina from providing copies of documents she had herself filed with the Court to James for the purposes of the London matrimonial proceedings.

40. [136]

    Be that as it may, the fact is that James filed an unconditional appearance without extracting, or having his lawyers extract on his behalf, any undertaking from Christina to release the supposed confidentiality obligation in return for doing so. So far as the documentary evidence goes, James simply filed the appearance voluntarily and his lawyers continued to negotiate on the supposed confidentiality issue.

41. [137]

    As already noted, it is unclear precisely how, and when on 7 December, the notice of appearance came to be filed. When the hearing in the London matrimonial property proceedings commenced that morning (London time), it was already after the close of business in Sydney. The instructions relayed by James’ counsel to the Court were ambiguous. Initially counsel stated that the appearance had been filed. Later counsel spoke of the filing as something that was yet to happen. It seems counsel did not have clear instructions on that question.

42. [138]

    James’ affidavit evidence in support of the application dealt only with his decision to sign the notice of appearance on 5 December. James deposed that he did so solely to enable an order to be made by this Court at the directions hearing on 6 December which would allow him to obtain copies of the documents on file in these proceedings for the purpose of the London matrimonial property proceedings. This is somewhat strange given that James refers to correspondence with HWLE who were ostensibly not acting for him at the time.

43. [139]

    But it is not necessary to go any further into the explanation offered in James’ affidavit. The fact is that no order about confidentiality was made on 6 December (James was not even represented at the hearing), and the affidavit says nothing about James's decision to proceed with filing the notice anyway on 7 December.

44. [140]

    It is true that on 7 December James’ London counsel apparently believed that he had filed, or would shortly be filing, an appearance in these proceedings on some sort of limited basis. But on the face of it, this was only something counsel had been told second-hand. There is no evidence as to what advice James was given, by his London lawyers or anyone else, on the matter.

45. [141]

    The subsequent self-serving statements made in correspondence by James and by his Singaporean and Sydney solicitors take matters no further. They do not prove what his intentions were when he filed the appearance on 7 December and I do not think that any inference should be drawn from them on that issue, given the absence of direct evidence.

46. [142]

    It may be accepted that leave to withdraw an appearance may be granted in circumstances of mistake. But the quality of the mistake is critical. The entry of an appearance is a step taken as between a litigant and the court. Contractual rules of mistake do not necessarily apply. Even where they do, not every mistake will entitle the mistaken party to set aside the contract.

47. [143]

    There is some difficulty with analysing James’ allegation that he made a mistake because he did not intend to submit to the jurisdiction of this Court, when he, so far as the evidence goes, is a layperson. The evidence shows that the decision to file a notice of appearance was one that was made when he had the benefit of legal advice in the United Kingdom and where specific consideration can be assumed to have been given to the consequences of doing so. Yet his evidence does not reveal what knowledge he had, or what advice he had received, as at 7 December about the consequences of filing an unconditional appearance.

48. [144]

    I do not however think that it is necessary to pursue that question any further. That is because I consider that the evidence before me demonstrates that there was no mistake as to the nature of the document which was signed and filed. The signature on the document and the filing were deliberate and intentional acts. Any so-called mistake could only have been as to the forensic consequence of entering an appearance. In my view, that would not be sufficient for the Court now to grant leave to him to withdraw it. There is no need to consider delay or any other discretionary consideration.

49. [145]

    If I am wrong in this view, I would nevertheless uphold the alternative submission from counsel for Christina that SC1 had previously been served by agreement on Ms Sisk as a result of her email of 30 November 2023 ([106] above). Counsel for the defendants did not, so far as I could see, make any reply to that submission. James’ application to withdraw the appearance entered on 7 December 2023 fails.

Anti-suit application by Christina

1. [146]

   Submissions: The submissions from counsel for Christina started with the High Court decision in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345. In that case the High Court laid down that there are two potentially available bases for the grant of an anti-suit injunction. One is the inherent jurisdiction of the Court to protect its processes (at 391-392). The other is the equitable power to restrain proceedings which have been brought contrary to good conscience (at pages 392-394). Counsel relied on both in the present case.

2. [147]

   Counsel submitted that, under the inherent power, a real possibility of inconsistent findings in the Australian and the foreign proceedings was sufficient to justify the grant of an injunction. They relied in particular on Kraft Foods Group Brands LLC v Bega Cheese Ltd [2020] FCAFC 65 at [63], [104]-[109].

3. [148]

   In the present case, counsel submitted that there was a “complete overlap” between the two proceedings. The only relief sought in Singapore consisted of negative declarations which were the mirror image of the claim made by Christina in these proceedings.

4. [149]

   In these circumstances, in counsel’s submission, the bringing of the Singapore proceedings was prima facie vexatious and oppressive. The onus therefore shifted to the defendants to identify some proper basis for bringing the proceedings. In counsel’s submission, no such justification existed.

5. [150]

   Counsel acknowledged the finding by Loh J that Robert Snr’s correspondence did not amount to a declaration of trust. Counsel appeared to accept the defendants’ contention that it created an issue estoppel. Indeed, Christina's own pleaded case relies upon issue estoppels said to derive from other findings by the Singaporean Courts. Rather, counsel submitted that Loh J’s decision only ruled out an express trust. It said nothing about the common intention constructive trust now pleaded by Christina as the foundation for the descendants’ trust claim.

6. [151]

   Counsel acknowledged that the defendants might contend that the issue estoppel went further. But this was a matter of defence which required pleading. Once pleaded, it could be decided in these proceedings.

7. [152]

   Counsel referred me to the discussion in CSR at 397-398 about the need for an Australian court, faced with an application for an anti-suit injunction against proceedings in a foreign court, to determine whether it (the Australian court) is the “more appropriate” forum (the test in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460), or, at least, is not a “clearly inappropriate” forum (the test in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). At 398 the Court stated:

8. [153]

   Counsel submitted that, as a result, it was not relevant to the granting of an anti-suit injunction sought against the defendants, to the extent to which it relied upon the inherent power, to ask whether this Court was a more appropriate forum than the Singapore High Court for the conduct of the litigation.

9. [154]

   Counsel acknowledged, however, that this question would arise if it were necessary to rely on the equitable power. But counsel submitted that, for that purpose, this Court was indeed the more appropriate forum. Counsel identified various connecting factors which, they contended, led to this conclusion. These included:

   1. (1)

      The deceased had been domiciled in New South Wales and probate had been granted here.

   2. (2)

      Terrill, the deceased’s executor, was likewise domiciled here. Moreover, all of Christina and her siblings were brought up here, and “many” of the representations upon which Christina relied had allegedly been made here.

   3. (3)

      All defendants except James were domiciled in Australia. According to Terrill’s affidavit as administrator, the proceeds of the settlement had largely, if not entirely, been repatriated to Australia following the settlement.

   4. (4)

      Christina’s family provision application was properly brought in this Court (and indeed could not be brought in Singapore) and there was a significant overlap between that claim and the equitable claims.

10. [155]

    Counsel also addressed choice of law questions. In their submission, there was a complicated matrix of fact, in which some, but not necessarily all, of the relevant representations had been made in Australia. Counsel emphasised, however, that the equitable claims were claims in personam. In counsel’s submission, the general rule was that such claims were governed by the lex fori, that is, the law of New South Wales. Counsel acknowledged that in some circumstances, equitable claims founded on foreign contracts, fiduciary relationships, and torts, may be governed by foreign law (citing Murakami v Wiryadi & Ors (2023) 109 NSWLR 39 at [128]-[146]), but the present case was not of that character.

11. [156]

    In any event, counsel submitted that it was not appropriate in an application of the present type, to determine in any final way what law would apply to Christina’s claims, and what, if any, practical consequence there would be if foreign law were involved (Murakami at [65]). As in that case, the pleadings had not closed. This factor therefore did not present any obstacle to the grant of anti-suit relief.

12. [157]

    Counsel for the defendants acknowledged the two separate bases on which an anti-suit injunction could be granted. But they submitted that on neither basis was an injunction warranted in the circumstances of the present case. So far as the Court’s inherent power was concerned, counsel submitted that overlap between the proceedings was relevant but did not itself amount to the proceedings being vexatious or oppressive, such as to justify the making of an order: Sunland v Prudentia [2013] VSCA 237 at [442]. It was necessary to have regard to the facts of the case: CSR at 392, approving a statement by Gummow J in National Mutual Holdings Pty Ltd v Sentry Corp (1989) 22 FCR 209 at 232. They also pointed out that the power to grant an anti-suit injunction was one to be exercised with caution: CSR at 396.

13. [158]

    Counsel submitted that the Singapore proceedings involved no more than enforcing the conclusion which had previously been reached in Singapore in the 2012 proceedings. In counsel’s submission, there was nothing vexatious or oppressive about this.

14. [159]

    Counsel also argued that this Court could not eliminate the risk of inconsistent findings between these proceedings and the Singapore proceedings. Counsel pointed out that Ms Turner’s claim on behalf of Ernest’s estate remained extant in Singapore, and, with the abandonment of the claim against Ernest’s estate in these proceedings, it was not possible to enjoin Ms Turner from pursuing that claim. On the evidence, it would continue in any event.

15. [160]

    Counsel also noted that in the earlier proceedings before Richmond J, counsel for Christina had stated that her case in these proceedings would be based on transcripts and evidence from the Singapore proceedings. Counsel for the defendants argued that this reinforced the conclusion, which in their submission was obvious anyway, that the present proceedings were an attempt to relitigate claims by Christina which had been rejected in the Singapore proceedings.

16. [161]

    Counsel also referred to the course of events in Singapore. They submitted that there had been a nine month delay between the initial grant of the anti-suit injunctions by the High Court in Singapore and the application to have the proceedings dismissed on the ground that the Singaporean Court was an inappropriate forum. Moreover, that application had been refused. The suggestion was that in substance, the Court was being asked to decide the same point in the opposite way.

17. [162]

    Counsel also submitted that this Court was not the appropriate forum, and indeed was a clearly inappropriate forum, for dealing with the equitable claims. They raised the following points:

    1. (1)

       The earlier proceedings had been commenced and determined in Singapore. The conclusions of the Singaporean courts were “best considered” by those courts.

    2. (2)

       The companies which were the subject of the common intention constructive trust claim, JCM and NEL, had been incorporated outside New South Wales. Moreover, the family business had apparently been managed, from the days of Robert Snr onwards, on the basis that it was important that the management was located outside of Australia for tax purposes.

    3. (3)

       The equitable estoppel claim was said to be based on representations made in Singapore, and concerned the conduct of proceedings there. The settlement agreement likewise was governed by Singaporean law.

18. [163]

    I asked counsel for the defendants whether, even assuming that their arguments were correct so far as the descendants’ trust claim was concerned, the same arguments necessarily applied to the equitable estoppel claim. I suggested that the equitable estoppel claim had not been adjudicated upon by the Singaporean Courts, and questioned whether the anti-suit injunction granted by the Singaporean Court had been intended to prevent that claim from being litigated.

19. [164]

    As I understood counsel’s reply, they maintained that the estoppel claim, although conceptually distinct from the descendants’ trust claim, was properly part of the subject matter of the Singaporean proceedings. Counsel did however acknowledge that there was a potential evidentiary overlap between the family provision claim and the estoppel claim.

20. [165]

    In reply, counsel for Christina challenged the contention that the same considerations applied to the estoppel claim as applied to the descendants’ trust claim. In particular, counsel submitted that the estoppel claim did not arise (at least against Terrill as defendant) until after the death of the deceased. This occurred well after Singapore proceedings came to an end following the 2020 settlement. Counsel submitted that on no view could the estoppel claim be seen as part of the issue previously litigated in Singapore.

21. [166]

    Counsel also contested the significance of Christina’s lack of success in applying to have the Singapore proceedings stayed. Counsel pointed out that for the purposes of that application, under Singaporean law, the Spiliada test was the relevant one (Murakami at [138]), but in this application (to the extent based on the inherent power) the Voth test was applicable. Furthermore, the Singaporean application was irrelevant anyway. In CSR, the High Court expressly stated that failure to make an application was not necessarily an obstacle to the grant of an anti-suit injunction (at [397]). A fortiori an unsuccessful application could not constitute such a bar.

22. [167]

    Evaluation: In CSR at 397 the High Court said:

23. [168]

    In the present case, however, this did not need to be so. As already noted, I had some doubts about whether the equitable claims as pleaded were viable. I granted anti-suit relief which would extend only up until a strike-out or summary judgment application could be brought and determined. My decision is therefore interlocutory (or perhaps better described as interim) both in substance and in form.

24. [169]

    It is not therefore not necessary for me to reach a conclusion on any disputed issues fact or law on a “final” basis. Accordingly, I treat the application as very much influenced by considerations of case management, in circumstances where the final shape of Christina’s case is unknown.

25. [170]

    Although counsel for Christina appeared to accept the proposition that the decision by Loh J on Robert Snr’s 1950 correspondence gave rise to an issue estoppel, I think that proposition is questionable.

26. [171]

    It is also, I think, significant for the outcome of this application that the descendants’ trust claim changed substantially between the original version of the statement of claim (SC1) and the amended version (SC2). The constructive trust originally claimed would have covered the subject assets of the family business in the hands of both Ernest and the deceased. The claim against Ernest has now been withdrawn, leaving claims directed solely to the share of the assets received by the deceased in the settlement (and allegedly paid on to James’ and Christina’s siblings).

27. [172]

    Such claims were not the focus of the Singaporean judgments. As already noted, the deceased was not even a party to the 2012 proceedings which resulted in those judgments. At no point were the Singaporean Courts invited to determine, as between Christina and her father, what entitlements she may have had to assets of the family business.

28. [173]

    This is particularly clear so far as the estoppel claim is concerned. That claim rests on alleged promises to Christina by her father, and Christina’s alleged reliance to her detriment on those promises. Any reference to these issues in the earlier Singaporean proceedings would have been purely incidental.

29. [174]

    Furthermore, the underlying facts, even if they do not ultimately sustain an estoppel, might be a ground for relief in the family provision claim (see Brereton J in Vukic v Grbin [2006] NSWSC 41 at [38]). Those facts can therefore be presented by Christina in these proceedings whether or not the estoppel claim is determined in Singapore. For this reason alone, there will inevitably be duplication and wasted costs if the current Singapore proceedings are pursued while the family provision claim is pursued in this Court.

30. [175]

    In these circumstances, if the estoppel claim is viable I am clearly of the view that it should proceed in this Court.

31. [176]

    The position is less clear, admittedly, for the descendants’ trust claim. That claim does involve consideration of whether the family business assets were subject to a trust during Robert Snr’s lifetime, and if so whether that trust continued to subsist during Ernest’s period of management of the companies. To that extent the underlying facts were the subject of consideration in the earlier Singapore proceedings.

32. [177]

    Nevertheless the claim is formulated in different terms from the claims which were adjudicated in the Singaporean proceedings, and involve some different parties. Arguably, at least, the issues are not identical.

33. [178]

    Furthermore, the descendants’ trust claim is a claim to beneficial ownership of property forming part of an estate which is being administered in this jurisdiction and where there are already proceedings involving a family provision claim to the estate. It is common practice to join claims which involve determining what assets an estate has with a family provision claim. That is because, until the extent of the estate has been determined, the Court cannot sensibly decide whether the provision which is under challenge is appropriate without considering the value of the estate as a whole.

34. [179]

    In these circumstances, again I consider that, at least until it has been determined whether the claim is viable, there is nothing to be gained from pursuing negative declarations in the proceedings in Singapore.

35. [180]

    In these circumstances I think it is only necessary to rely upon the inherent power. For the reasons I have given, I do not think that this Court is a clearly inappropriate forum for the determination of the equitable claims (at least for the purposes of deciding whether they can proceed). It is therefore unnecessary to decide whether Singapore is a more appropriate forum, although if it were necessary to do so, my conclusion, at least for the purposes of determining whether the equitable claims are viable, would be that it is not.

Application for summary dismissal of equity claims

1. [181]

   Submissions: Counsel for Christina contended that the Court should not entertain the summary judgment application because the defendants were in contempt of the anti-suit injunctions which I granted on 17 November. The relevant order was that which prevented the defendants from “taking any steps to prosecute or maintain the relief sought” in the Singapore proceedings.

2. [182]

   The contention relied upon a letter on behalf of the defendants by Mr Poon to the Registrar of the High Court of Singapore concerning the Singapore anti-suit proceedings. The letter was sent on 25 November, following the hearing and the grant of the anti-suit orders on 17 November, and relevantly stated:

3. [183]

   Counsel for Christina emphasised that the Court’s order of 17 November applied to steps taken, not only to “prosecute” the relief sought in the Singapore proceedings, but also to “maintain” that relief. Counsel submitted that by seeking a period of two weeks to advise of their intentions, the defendants were seeking to hold their claims (including anti-suit relief) open, with the possibility of continuing to pursue those claims. Doing so, in counsel’s submission, amounted to a step taken to “maintain” the relief sought in the proceedings.

4. [184]

   Counsel also relied upon the statement that James did not consider that this Court had jurisdiction with respect to the claim against him, contending that this was an additional contempt on James’ part. Counsel characterised it as a direct challenge to the determination made by the Court on 17 November. Counsel submitted that the procedural situation made this clear: James was pursuing the summary judgment application in this Court while he was denying the Court’s jurisdiction in Singapore.

5. [185]

   It is often said that a party who is in contempt of orders made by a court should not be heard on any other application to that court while the contempt subsists. In the past this has been described as an absolute rule, not merely a matter of discretion.

6. [186]

   I considered the issue in Ip v Chiang [2019] NSWSC 1549 at [60]-[115], where I discussed some of the authorities. I concluded (at [115]):

7. [187]

   Counsel for Christina accepted what I said in Ip about the supposed rule. They submitted however that, in the exercise of discretion, I should still refuse to entertain the defendants’, or at least James’, summary judgment application. The delay sought in Singapore was only for a period of a few weeks, but in both cases an important issue of principle was at stake.

8. [188]

   Counsel for the defendants urged me to reject these contentions. Counsel pointed out that Mr Poon’s letter itself contained an express acknowledgement of the injunctions and their effect on the defendants in personam. All that the defendants had asked for was for the proceedings to be adjourned while they considered their position. The request, in counsel’s submission, did not amount to an attempt to “maintain” the relief sought in the proceedings.

9. [189]

   As to the alleged contempt by James, counsel submitted that at most the statement conveyed that James did not agree with the Court’s decision of 17 November. There was no suggestion that James would not comply with the orders, and non-compliance, rather than disagreement, was the essence of contempt in this field.

10. [190]

    Finally, counsel submitted that if there had been any contempt, the Court should not, as a matter of discretion, decline to hear the applications.

11. [191]

    Evaluation: The anti-suit injunctions which I granted on 17 November were formulated in the terms which had been sought by Christina in her notice of motion. Counsel for the defendants did not make any submissions about those terms. The reference to taking steps to “maintain” the Singapore proceedings thus passed through unchallenged.

12. [192]

    The use of the word “maintain” may, in hindsight, have been unnecessary. But accepting that it appears in the terms of the orders, and that there has been no application to vary those terms, it still must be read in its context.

13. [193]

    One thing is completely clear. The anti-suit orders did not go so far as to oblige the defendants to withdraw the Singapore proceedings. Nor could those orders properly have done so: even if they had been granted on a “final” basis (as discussed in CSR) they would have operated only until the completion of these proceedings. It would not have been proper for them thereafter to have prevented the defendants from pursuing residual matters arising in the Singapore proceedings, such as costs.

14. [194]

    In fact, the injunctions granted on 17 November were only granted “until further order”. In my opinion it would be absurd to construe the term “maintain” so as to prevent the defendants from keeping the Singapore proceedings alive for the duration of the anti-suit injunctions in this Court. The first contempt point fails.

15. [195]

    I also agree with counsel's submission concerning James’ continued denial that the Court has jurisdiction over him. That could only have been a statement of opinion. As counsel submitted, it did not involve, or necessarily even threaten, any failure to comply with orders made, and to be made, by the Court.

16. [196]

    James is perfectly at liberty to express his disagreement with the orders which I made on 17 November. Indeed, at the time I was hearing the applications, the time for an application for leave to appeal against those orders had not even expired. If there be any inconsistency between disagreement with the orders and the stance he has taken in seeking to have the proceedings summarily dismissed or struck out, then the proper remedy is an application for a stay (Ip at [108]). It is not the type of issue to be resolved by a contempt application.

17. [197]

    Finally, had I been satisfied that there was any contempt, discretionary factors would still have militated against declining to entertain the summary dismissal application. In the first place, it was not suggested that any disobedience to the orders which I had made it was intended; the very terms of the letter demonstrate that there was no such intention. Secondly, if there was any disobedience, then it was only effective for the purpose of obtaining the adjournment. There was no ongoing state of non-compliance. Once the adjournment had been obtained, nothing of any practical significance could have been done by way of purging any contempt.

18. [198]

    In this Court, the discretion not to entertain an application where there has been a default in compliance with previous orders by the Court is to be exercised in the context of the requirements of s 56 of the Civil Procedure Act 2005 (cf Ip at [81]). If the claims, as pleaded, have no substance then the sooner the Court determines that, the better for all concerned, including Christina herself. Refusing to entertain the application would not be conducive to the just, quick and cheap disposal of these proceedings. I decline to do so.

19. [199]

    Pleading: The prayers for relief in SC3 begin with two declarations which correspond with Steps One and Two in the descendants’ trust claim, as identified above:

20. [200]

    No declaration is sought to reflect the alleged trust over the assets appropriated by Ernest (Step Three). But the declaration sought in prayer 4 reflects Step Four, focusing on the amount received by the deceased from the settlement:

21. [201]

    Prayer 5 seeks an order that an account be taken in accordance with Terrill’s alleged liability with respect to the settlement monies. Prayer 5A seeks a consequential order that Terrill pay over to Christina a one quarter share of the trust funds identified in that account. Presumably Christina would also be entitled to an order for transfer of one quarter of the 2,000 shares in JMM identified in prayer 4, but this is not mentioned. Prayer 13 seeks, in alternative to prayer 5A, an order for payment of equitable compensation “in such sum as the Court assesses as just”.

22. [202]

    Prayers 5B, 6 and 6A are directed against James. Prayers 5A and 6 seek declarations that the payments of AUD 20 million and USD 20 million made to him in 2022 were “traceable proceeds of the de la Sala trust funds” (this term is discussed further below) which were “paid in breach of trust” and that they were received by him on constructive trust for Christina “as one of the descendants of Robert Sr”. Prayer 6A seeks an order that James account for those receipts (or any other property into which their proceeds can be traced).

23. [203]

    Prayers 7, 8, and 8A reflect the claim against Teresa for her share of the USD 67 million allegedly paid to her, Edward, and Maria-Isabel. Prayers 7 and 8 seek declarations that “one quarter of the sum of USD 20 million or such sum as the evidence discloses was received by [Teresa] from the deceased from the de la Sala trust funds” was received “on account of [Teresa’s] entitlement to capital and income” from the constructive trust in prayer 3, and that “in circumstances where [Christina] has not received” any distributions of capital or income from that trust, Teresa holds a one quarter share of what she has received on constructive trust for Christina “as one of the descendants of Robert Snr and one of the four children of the deceased”. Prayer 8A seeks an order that Teresa account for that share of her receipts “and any property to which those monies can be traced”. Equivalent orders are sought against Edward (prayers 9, 10 and to 10A) and Maria-Isabel (prayers 11, 12 and 12A).

24. [204]

    In the body of the statement of claim, the factual allegations in support of Step One (the establishment of the alleged trust) are pleaded at [25] to [28]:

25. [205]

    The role of Ernest and the death of Robert Snr are addressed at [29] and [33]-[35]:

26. [206]

    Step Two (the transfer of the assets of JMC and NEL to the Nominee Companies) is relevantly pleaded at [32], [41], [41A] and [41B]:

27. [207]

    Step Three (the transfer of the Nominee Companies’ assets to Ernest) is pleaded at [42]:

28. [208]

    There follows a description of the Singapore proceedings. Step Four (the transfer of some of family assets held by Ernest to the Deceased under the settlement, which assets were retained by the Deceased as at the date of his death) is pleaded at [47] and [51]:

29. [209]

    As already noted, [27] alleges that the deceased was a recipient of representations by Robert Snr concerning the alleged “Common Intention with respect to the de la Sala Trust Funds” and [29] alleges that the deceased knew that Ernest was allegedly managing the family business “for the purpose of maximising the de la Sala Trust Funds for the benefit of” the family members “including the plaintiff”. The consequential liability of the deceased, and, ultimately, his estate, are addressed at [30], [31], [66A] and [66B]:

30. [210]

    The pleading of the claims against James closely tracks the declarations and other relief sought against him. After pleading receipt by James of the payments of AUD $20 million and USD $20 million in July and August 2022, the statement of claim alleges that those monies “were paid out of the traceable proceeds of the de la Sala Trust Funds or out of mixed funds being the traceable proceeds of the de la Sala Trust Funds and the deceased’s funds” and “as such were received subject to the constructive trust referred to” in [30]. It then alleges that James “was not of a volunteer with respect to the de la Sala Trust Funds” but “had actual knowledge that they were impressed with a constructive trust for his parents [sic] on trust for his parents [sic], his [sic] siblings and their descendants, including [Christina]”. It is further alleged that the monies received by James were paid “in breach of trust and ought properly to have been paid to [Christina] on account of her entitlement to capital and income out of the settlement monies”.

31. [211]

    The claims pleaded against Christina’s siblings likewise closely track the declaratory relief sought against them in the statement of claim. The sum of USD $67 million allegedly shared between the siblings is alleged to have been paid out of the traceable proceeds of the de la Sala Trust Funds or out of mixed funds and as such to have been subject to the constructive trust referred to in [30]. In each case it is alleged that the sibling in question was “not a volunteer with respect to the de la Sala Trust Funds” and that the payment received by that sibling was on account of her or his “entitlement to capital and income from the alleged constructive trust”. It is further alleged that in circumstances were Christina has not received any distribution of capital or income, Terrill breached her duty as trustee to treat beneficiaries under that trust, namely her children, equally. It is said to follow that each of the siblings holds a one quarter share of the amount received “on constructive trust for [Christina] as one of the descendants of Robert Snr and one of the four children of the deceased”.

32. [212]

    Before parting with the pleading, I should comment on the repeated allegations that each of the deceased, James and Christina’s siblings were “not a volunteer with respect to the de la Sala Trust Funds” or the property received by them allegedly derived from those funds. Obviously it is used in support of a claim to trace property under the second limb of Barnes v Addy. But I cannot think that it is intended literally. Being a voluntary recipient of property is not a defence to a claim under Barnes v Addy; rather the reverse. I have accordingly read the phrase as “was not a bona fide purchaser for value without notice”.

33. [213]

    Submissions: The pleading expressly refers to the alleged descendants’ trust as a common intention constructive trust, and counsel for Christina confirmed that this was the doctrine upon which her claim was based. In Shepherd v Doolan [2005] NSWSC 42 White J identified and discussed the elements of such a constructive trust at [30]-[46]. I was referred by counsel for both parties to his Honour’s judgment, and the principles identified in it were not in dispute for the purposes of the application.

34. [214]

    In Shepherd at [31], White J summarised the doctrine in the following terms:

35. [215]

    The first point made by counsel for the defendants about the pleading of Christina’s claim in the present case concerned the allegation in [26] that the intention allegedly held by Robert Snr had been “adopted” by his wife and children so as to make it a “common intention” for the purposes of the doctrine. Counsel submitted that this allegation could not possibly be sustained. It was inconsistent with the 2020 settlement, in which the family assets had been divided between Ernest and the deceased, to the exclusion of Robert Snr’s other two children, Tony and Isabel.

36. [216]

    Counsel for the defendants next criticised the references in the statement of claim to the assets of the alleged trust being held for the benefit of the “descendants” of Robert Snr. They submitted that this allegation had no definite meaning. It failed to identify the specific beneficial interests held by each of Robert’s Senior’s children, grandchildren, and remoter issue at any particular point in time. For instance, counsel asked rhetorically, what interest did Christina have in the assets during her father's lifetime?

37. [217]

    Counsel also submitted that the way that Christina’s case had been formulated was in fact inconsistent with the alleged trust in favour of Robert Snr’s “descendants”. Christina was claiming one quarter of the assets of the trust in her father's hands. Yet she was only one of 11 grandchildren of Robert Snr. And why, come to that, should the entitlement be limited to grandchildren? The term “descendants” included Christina's own children (and other great-grandchildren of Robert Snr).

38. [218]

    Next, counsel made a series of points which fastened on the term “de la Sala Trust Funds” in the statement of claim. As defined in [26], this term meant, for the purposes of Step One, the shares held by Robert Snr in JMC and NEL during his lifetime. But in Steps Two, Three and Four, the subject matter of the alleged trust had become assets formerly owned by JMC and NEL which had been transferred to the Nominee Companies, and then appropriated by Ernest, and then transferred to the deceased under the September 2020 settlement.

39. [219]

    In Counsel's submission, this change in the subject matter of the alleged trust was simply impermissible. There was a clear distinction between the shares in JMC and NEL, considered as property, and the assets belonging to those companies. Counsel relied in particular on the following statement by the Singapore Court of Appeal in the earlier proceedings (at [119]):

40. [220]

    Counsel also pointed out that it had been found in the Singapore proceedings that the JMC and NEL shares had in fact been disposed of by Robert Snr before his death. In counsel's submission, even if those shares had originally been held on trust, the only viable claim was against whoever the owner of the shares now was. No such claim had been articulated by Christina.

41. [221]

    Counsel acknowledged that the test for striking out a claim is a demanding one which requires that the claim be manifestly hopeless. But counsel submitted that this threshold had been reached. Indeed, counsel invited me to go further and to summarily dismiss the descendants’ trust claim in its entirety. Counsel pointed out that Christina's legal advisers had made two attempts to re-plead since I had first raised issues with the statement of claim, including issues summarised above. I could, and should, infer from their inability to formulate a coherent pleading of the claim that no viable claim was possible (citing Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 at 75).

42. [222]

    In response, counsel for Christina began by making two general points about the Court's power to strike out pleadings or summarily dismiss claims.

    1. (1)

       Not only was the Court obliged to assume that all the factual allegations made by the plaintiff were correct, but (relying on Penthouse Publications Ltd v McWilliam [1991] NSWCA 222), the Court had to adopt a “liberal construction” of the statement of claim for that purpose. That is, the Court had to “accept the truth of all allegations but also the truth of the work of the ranges of meanings of the statement of claim”.

    2. (2)

       Counsel referred me to the decision of the Court of Appeal in Spellson v George [1992] NSWCA 254. That was a claim of breach of trust which was similarly dismissed at first instance on the ground that the plaintiff beneficiary had consented to the conduct of the trustee which was now alleged to have been a breach. No defence had been filed the claim, and the trial judge had acted on the basis of evidence presented at the hearing. The appeal was allowed on the basis that summary dismissal had been premature. Counsel pointed out that defences had not been filed in the present case, and contended that the same approach should be followed.

43. [223]

    As to the point concerning the adoption of the alleged “common intention”, counsel for Christina submitted that it could not be inferred, merely because of the terms of the 2020 settlement, that the intention in question had not been adopted by the relevant members of the de la Sala family. There might be other explanations for the fact that Tony and Isabel received nothing from the settlement. More broadly, in counsel's submission, this was a question of fact and therefore an inappropriate basis for summary disposal.

44. [224]

    Counsel then turned to the point about the trust being for the benefit of the “descendants” of Robert Snr. Counsel submitted, referring to Shepherd at [36], that it was not necessary to establish the common intention in terms of a share in the property, defined in terms sufficiently certain to satisfy conveyancing requirements (at [36]). It is sufficient that the parties intend that the claimant “should have a beneficial interest or some form of proprietary interest in the property”.

45. [225]

    Counsel also referred to the statement in Shepherd at [41] that the quantum of a claimant's beneficial interest would be that which the parties agreed upon or intended, but if the evidence did not permit that to be determined, one would start with the maxim that equity is equality. Counsel submitted that the question was a factual one. It was true that a one quarter interest had been claimed, but if the defendants wanted to contend that the actual interest was one-eleventh, that would ultimately be a matter for pleading by them. If Christina failed to establish an entitlement to a one quarter share, she would not lose the case but would simply receive whatever share to which the Court ultimately found she was entitled.

46. [226]

    Finally, Counsel rejected the submission concerning the change in the alleged subject matter of the trust. They argued that it was based on a misunderstanding of Christina's case. Initially its subject matter had been the shares in JMC and NEL, but by 2011, the subject matter had, as a result of the conduct of the parties, become assets in the hands of the Nominee Companies. As to whether Robert Snr had disposed of the shares before his death, this was a “complex factual issue” unsuitable for summary determination.

47. [227]

    Evaluation: In 2020, Leeming JA, sitting at first instance, referred to an academic debate about whether a common intention constructive trust should be seen as merely a species of constructive trust arising from estoppel (and, specifically, proprietary estoppel by encouragement), rather than deriving from a stand-alone equitable doctrine (Bijkerk Investments Pty Ltd v Bikic [2020] NSWSC 1336 [116]-[119]). The question remains an open one: cf Galati v Deans [2023] NSWCA 13 at [57]-[60] (White JA) and [149] (Basten AJA). Nevertheless, there are significant parallels between a common intention constructive trust and a constructive trust arising from proprietary estoppel, particularly the requirement for detriment.

48. [228]

    Those parallels might have formed the foundation for an argument that a common intention constructive trust is remedial, in the sense that it only arises when declared by the Court, or at least when the owner of the property seeks to depart from the common intention (cf Muschinski v Dodds (1985) 160 CLR 583 at 614-615 per Deane J).

49. [229]

    That, however, is not the way Christina’s case has been presented. The statement of claim expressly alleges that the alleged common intention constructive trust came into existence between “about 1957” and Robert Snr’s death in 1967. The same approach was taken by counsel for Christina in argument. Counsel accepted that Christina’s claim was to an interest under a trust which came into existence before her grandfather’s death, albeit that, as she alleges, the nature of the trust assets subject to the alleged trust has changed over time.

50. [230]

    Turning specifically to the submissions made by counsel for the defendants, I accept that a factual issue about whether the other members of Robert Snr’s family (Camilla and his children) “adopted” the common intention before his death, as the statement of claim alleges, is, on the face of it, a factual one. In the ordinary course, such an allegation would not be demurrable, especially when the conduct relied upon by counsel for the defendants to challenge it occurred decades later, at the time of the September 2020 settlement.

51. [231]

    But there is a more fundamental problem. The recognition of a common intention constructive trust does not require only that a particular intention is agreed or “adopted” between the relevant parties. The parties seeking to enforce the intention must also be able to identify detriment if it is not upheld. In the present case, there is no allegation that, during Robert Snr’s lifetime, his wife and children did anything in reliance upon the alleged Common Intention which would have resulted in detriment to them if he had resiled from it.

52. [232]

    A second problem arises with the alleged “common intention” itself. This is the problem with the meaning of the term “descendants” in the statement of claim.

53. [233]

    I do not agree that this is simply a matter for joining issue and ultimate factual determination by the Court. A trust cannot exist unless someone other than the trustee holds a present or future beneficial interest in the trust property: Jacobs' Law of Trusts in Australia 7th ed 2006 at [1-08]. Of course, it is possible for concurrent beneficial interests in the trust property to be created for life and in remainder, and this is commonly done in the case of family settlements. But it is essential that at any particular time the beneficial interests in the trust property are capable of identification.

54. [234]

    It may be accepted that the common intention may not be expressed in terms which would be sufficiently precise to give rise to an express trust. But when the Court comes to make orders imposing the constructive trust, it must be. There is no possibility that the Court would make the declaration in the terms sought in prayer 1 (or any of the subsequent relief consequential upon the making of that declaration), for that reason alone.

55. [235]

    If Christina now has the interest in the alleged trust property that she claims, that interest must have come into existence, at least as an expectancy, when the trust was constituted. At that point, Christina had not even been born. The only relevant interest was that of her father. On her case, on her birth or at some later point a share in his interest must have passed to her. The question posed by counsel for the defendants about what rights she had to the property during her father’s lifetime went unanswered. It could not have been answered because the statement of claim did not define what interest was actually conferred on her under the alleged constructive trust.

56. [236]

    I have not overlooked the allegation in the particulars to [66A] that in some manner the rights of Robert’s children “crystallised” as a result of the 2020 settlement. But the allegation does not say how this vesting came to occur. Certainly it could not have happened merely as a result of dealings between the deceased and his children. The authority for it would need to be found in the terms of the original constructive trust, and the statement of claim says nothing at all about this (a new trust of course could have been created by the deceased over his interest in the trust, but that is quite another matter).

57. [237]

    For these reasons, the foundational constructive trust allegation made on Christina’s behalf is unsustainable. But even if a trust did arise during Robert Snr’s lifetime in accordance with Step One in Christina’s contentions, it would still be necessary to overcome the argument from counsel for the defendants concerning the change in the subject matter of that trust.

58. [238]

    It is, with respect, difficult to see how counsel for Christina could seriously say that whether Robert Snr had disposed of his shares before his death was a “complex factual issue”. Christina’s own statement of claim alleged (at [34]) that at the time of Robert Snr’s death the shares in NEL and some of the shares in JMC (presumably Robert Snr’s controlling interest) had passed to his children. It is also common ground that the companies are still in existence, which presumably means that the shares originally owned by Robert Snr are likewise still in existence. But I will pass over this for the moment.

59. [239]

    It is clear that Christina’s claim relies upon some form of tracing to connect Step One with Steps Two, Three and Four. The well-known remarks by Lord Millett in Foskett v McKeown are therefore in point. Those remarks are widely recognised as authoritative (Jacobs' Law of Trusts in Australia at [27-03]), including in the Court of Appeal (see, for example, Evans v European Bank Ltd (2004) 61 NSWLR 75 at [133]). His Lordship said at [128]:

60. [240]

    Applying Lord Millett’s approach, it is necessary to identify how Christina’s claim gives rise to proprietary remedies before any question of tracing comes into play. If the shares held by Robert Snr in JMC and NEL during his lifetime were the subject matter of the trust, as required by Step One in Christina’s contentions, the claim must involve a breach of trust by Robert Snr resulting from a failure to retain the subject shares and hold them for the beneficiaries of the alleged trust. If the allegation of breach were sustained, that would have entitled the beneficiaries to obtain an account of the trust property (that is, the shares) from Robert Snr (or, after his death, his estate). If the shares had been exchanged by Robert Snr for other assets, those assets could have been recovered in their place. If they had been transferred to third parties who were not bona fide purchasers for value without notice, those third parties could have been required to account for them (or for any assets exchanged for them by the third parties).

61. [241]

    This is not the case presented in SC3. There is no allegation of breach of trust on the part of Robert Snr, and no claim for an account from his estate. On the pleaded facts, the shares were transferred to his children before his death, but receipt-based liability for the shares is not pleaded against them, nor is any account sought from them (except against the deceased, and on a different basis). Indeed the only breaches of trust pleaded are against Terrill as executor (SC3 [57B]).

62. [242]

    It is clear, as a matter of procedural history, how this discontinuity arose. I think that history is revealing.

63. [243]

    In SC1, the term “de la Sala Trust Funds” was defined as a “fund of assets” built up by Robert Snr in JMC and NEL before his death. Thus the subject matter of the trust was identified for the purposes of Step One as being assets in the hands of JMC and NEL. The pleader presumably felt no difficulty about alleging that those assets, or assets exchanged for them, then passed to the Nominee Companies (Step Two), then to Ernest (Step Three), and then, through the September 2020 settlement, to the deceased (Step Four).

64. [244]

    But at the hearing on 1 October, I pointed out that, on this analysis, the trustee under the common intention constructive trust would have been JMC and NEL, not Robert Snr as alleged. He did not personally own the relevant assets. And JMC and NEL, although evidently still in existence, had not been joined as defendants.

65. [245]

    Following this, Christina’s legal representatives altered the definition of the “de la Sala Trust Funds” in SC2 (and, later, SC3) so as to define those “Funds”, not as business or investment assets forming part of the shipping empire, but as the shares in JMC and NEL originally held by Robert Snr, rather than assets of the companies themselves: see [25], quoted above. This solved the potential problem with JMC and NEL being the trustees for the purpose of Step One. But the altered definition was used for the rest of the pleading without paying attention to the fact that in Steps Two, Three and Four, the subject matter of the claim could only be business or investment assets.

66. [246]

    The logical gap evident is from the pleading of Step Two, quoted above. At [41] “the assets of NEL and JMC and the de la Sala Trust Funds” are bracketed together as having allegedly been transferred to the Nominee Companies for the purpose of those Companies “continuing to hold the de la Sala Trust Funds” in accordance with the alleged Common Intention. But while assets of JMC and NEL may have been transferred to the Nominee Companies, the “Funds” (that is, Robert Snr’s shares in JMC and NEL) never were. Then [41B] alleges the assets “continu[ed]” to be impressed with the alleged constructive trust. The pleader’s sleight of hand results in the conflation of Robert Snr’s shareholdings in JMC and NEL with the assets of those companies in precisely the way condemned by the Singapore Court of Appeal in its judgment and by counsel for the defendants in their argument.

67. [247]

    For these reasons, the claims for declaratory relief and for an account or compensation from the deceased’s estate are unsustainable. The same must go for the consequential claims against James and Christina’s siblings (there may be other difficulties with those claims, but it is not necessary to go into them for present purposes).

68. [248]

    At the least, the descendants’ trust claim (including the consequential claim against James and Christina’s siblings) should be struck out. But I agree with counsel for the defendants that there is no justification for offering Christina a further opportunity to reformulate the claim. The problems I have identified are too fundamental. In particular, the point about the subject matter of the trust clearly created a dilemma for Christina’s legal representatives. They have now made two attempts to solve the dilemma, one of which (SC1) has been abandoned and one of which I have held is impermissible (SC3). The observations by Gleeson CJ in Trau have particular force in such circumstances. The descendants’ trust claim will be summarily dismissed.

69. [249]

    Pleading: The statement of claim pleads two alternative claims, one a claim of an “inter-generational equitable estoppel” and the other a claim of a plain “equitable estoppel”. These claims are reflected in the declarations sought in prayers 3 and 3A:

70. [250]

    As already noted, both estoppel claims pick up the same relief as for the descendants’ trust claim: an order for account, and consequential order for payment (prayers 5 and 5A: see above). An alternative claim for equitable compensation in prayer 13 seeks, for the equitable estoppel claim, “the monetary value of the representations relied upon” by Christina, as alleged in the body of the statement of claim.

71. [251]

    In the body of the statement of claim the intergenerational estoppel claim is the first to have its supporting facts pleaded. These concern the involvement of Christina, and later, James and Edward, in the management of the family business and appear at [35A], [36]-[38] and [40A]:

72. [252]

    Under the heading “Common Intention Constructive Trust”, these paragraphs, together with the allegations supporting the descendants’ trust claim are repeated and it is alleged that:

    1. (1)

       the deceased, Ernest, James, Edward, and Christina “all adopted the Common Intention in relation to the de la Sala Trust Funds” ([60]);

    2. (2)

       the deceased, Ernest, James, Edward, and Christina “conducted their relationship and management of the de la Sala Trust Funds on the basis of the Common Intention” ([61]);

    3. (3)

       the deceased and Ernest “knew and intended” that “each of them” (scil, all five of them) would do so ([62]);

    4. (4)

       Christina acted to her detriment “in adopting and relying on the Common Intention” ([64]);

    5. (5)

       in entering into the 2020 settlement, Ernest and the deceased “resiled from the Common Intention in relation to the de la Sala Trust Funds” ([63]), thereby occasioning detriment to Christina ([65]) and

    6. (6)

       it would therefore be unconscionable for Ernest and Terrill, as executor of the deceased’s estate, to “resile from holding the de la Sala Trust Funds on constructive trust for the benefit of the lineal descendants of Robert Snr” ([66]).

73. [253]

    Later in the pleading, under the heading “equitable estoppel claim”, [77] alleges:

74. [254]

    The pleading of the ordinary estoppel claim (which overlaps factually with the inter-generational equitable estoppel claim) then follows. Various representations by the deceased to Christina are alleged in [69] to [71]:

75. [255]

    The pleading continues at [71A]:

76. [256]

    The pleading also incorporates by reference the following paragraphs in the plaintiff’s affidavit of 28 August 2023:

77. [257]

    The pleading at [72]-[73] then repeats the allegations that the deceased “was not a volunteer with respect to the de la Sala Trust Funds” and “had knowledge” that they “were impressed with a trust in favour of the lineal descendants of Robert Snr”. Detrimental reliance is then pleaded at [74]:

78. [258]

    The following conclusions are pleaded at [75] and [79]:

79. [259]

    Submissions: The reference to an “inter-generational equitable estoppel” in SC3 prayer 3 and [77] appears to have been inspired by the decision of Slattery J in Robertson v Byrne [2022] NSWSC 1713, to which I was referred to by counsel for Christina. The facts of that case concerned a house which was inhabited for a period of decades by two generations of a blended family. The original inhabitants were Richard Snr and Ethel. The property was acquired by Ethel's daughter Gloria, who was Richard's stepdaughter, with the assistance of a loan of half the price (£2200). His Honour found that Gloria promised Richard Snr that in return for his loan of £1100 she would leave her interest in the property to his stepbrothers, Raymond and Trevor, in her will. Both Richard Snr and Trevor predeceased Gloria. When she died, she left the property partly to a godchild of hers and partly to charity. Neither Raymond nor Trevor's estate received anything.

80. [260]

    Slattery J found that the distribution of the property in accordance with the terms of the will was both a breach of contract and a breach of equitable obligations arising from the promise and the consequential loan. His Honour concluded that there were equitable obligations arising both by way of equitable estoppel and common intention constructive trust. In analysing the detriment and identifying and analysing the elements of the equitable estoppel, he identified the promise as having been made to Richard Snr, and as having been relied upon by him in making the loan of £1,100. That promise was not for Richard Snr’s personal benefit, but for that of his sons. That presumably explains why counsel treated it as an illustration of an “inter-generational” estoppel.

81. [261]

    Counsel for the defendants framed their argument on the application, so far as it concerned the equitable estoppel claim, on a general basis. They did not refer to or, acknowledge, any separate category of “inter-generational” equitable estoppel.

82. [262]

    For the elements required to sustain the estoppel claim, counsel referred me to the statement of principle by the High Court in Kramer v Stone (2024) 281 CLR 484 at [37] to [40]:

83. [263]

    Counsel focussed their criticism on the pleaded representations. Counsel submitted that the representation needed to take the form of a promise of an interest in property. But the representations pleaded did not contain any such promises. In particular, the representations in SC3 [71A] that Christina “would receive” benefits still did not amount to promises that the deceased himself would do something. Furthermore, the representations pleaded were not “clear and unequivocal” ones, as required by Kramer at [37].

84. [264]

    Counsel made a second, related, point. The present case, they submitted, was far from the usual proprietary estoppel case where an existing owner of property makes a promise of an interest in that property in return for work being done on the property or some other detriment being incurred with respect to it (citing my decision in Makaritis v Makaritis (No 2) [2022] NSWSC 1690 at [170]). The interest claimed by Christina here is an interest in the proceeds of the settlement. But at the time the alleged representations were made, that settlement did not exist. For this reason too, SC3, in Counsel's submission, failed to plead the essential elements of a viable case.

85. [265]

    In reply, counsel for Christina were at pains to emphasise that they were relying upon equitable estoppel generally, and not some particular sub-doctrine. In particular, counsel resisted the suggestion that the estoppel for which they contended was limited to a proprietary estoppel, or estoppel by encouragement.

86. [266]

    But in the course of argument counsel themselves relied upon the principles stated by the High Court in Kramer. I therefore understood them to accept that those principles defined the elements required for establishing the estoppel or estoppels for which Christina in contending. Nor did they separately address the requirements of an “inter-generational” estoppel.

87. [267]

    Turning to the pleading itself, counsel for Christina invited me to reject both of the points on behalf of the defendants. On the first point, counsel submitted that that the promise of a specific and defined interest in property was unnecessary. Counsel referred to Flinn v Flinn [1999] VSCA 109, where the Victorian Court of Appeal collected the authorities on this point at [80]-[94]. Counsel also pointed to the availability of compensation in Kramer at [40]. They argued that such compensation could reflect the detriment suffered by Christina without necessarily being referable to the value of any particular item of property.

88. [268]

    On the second point, counsel also submitted that there was no reference in the requirements listed in Kramer to the property in question being in existence at the time of the representation. Robertson was given as an example of a case where it had not been.

89. [269]

    Evaluation: I begin with the “inter-generational” estoppel. The notion of enforcing, by estoppel, a promise made between members of a family for the benefit of next generation raises interesting theoretical questions. In particular it raises questions about whether family members enforcing promises when they have not necessarily incurred any detriment in reliance on those promises.

90. [270]

    The decision in Robertson did not need to address these questions, at least in an exhaustive way. His Honour’s reasoning ultimately was based on detriment to Richard Snr, and to him alone (see at [264]). No difficulty with enforcement arose because an order was made by his Honour for Richard Snr’s estate to be represented in the proceedings (see at [15]).

91. [271]

    Moreover, there were alternative bases for liability on the facts. His Honour found that the relevant promise gave rise to both an enforceable contractual obligation and a common intention constructive trust. And because of procedural complications he did not make any final orders but stood the proceedings over for further submissions. There does not appear to be any further published judgment, so the ultimate orders made to give effect to the estoppel found by his Honour, if any, are unknown.

92. [272]

    In any event, on analysis, the present case does not give rise to “inter-generational” issues of the same type as were raised in Robertson. In that case the representee (Richard Snr) had died and the question arose about enforcing a promise made to him for the benefit of the next generation of the representee’s family. In the present case, no such issue arises. The pleaded representations are representations allegedly made to Christina in connection with her move to Singapore and subsequent conduct there. Christina is the plaintiff and no question of someone else enforcing the representations arises.

93. [273]

    As Christina’s case was first framed in SC1, the “inter-generational” estoppel claim may have been conceived, at least in part, as some sort of alternative means of obtaining the common intention constructive trust over the family business assets for which Christina contended. It is now, however, quite clear that the claim for the imposition of a constructive trust claim is a stand-alone common intention trust claim based on a trust which allegedly arose before 1967. By contrast, the inter-generational equitable estoppel claim is a claim against other parties based on conduct which took place well after that date.

94. [274]

    In the light of later developments in the proceedings, I do not think that any further analysis of the claim is now necessary. When initially pleaded in SC1 it was based on representations principally made by Ernest. As such it might have been an understandable basis for a separate claim against him. But no relief is now sought against Ernest’s estate (although the unconscionability plea at SC3 [66] still alleges unconscionability against him). To that extent the allegations against him are irrelevant and should be struck out. It is true that the claim as pleaded also alleges encouragement on the part of Camila and the deceased (SC3 [35A] and [38]). But no claim for relief has ever been made against Camila’s estate. And any claim against the deceased effectively folds into the conventionally pleaded equitable estoppel claim.

95. [275]

    It seems to me that the “inter-generational” estoppel claim is now surplusage. Apart from the alleged representations by the deceased which are picked up by the conventionally pleaded estoppel claim, it should be struck out.

96. [276]

    I turn now to the conventionally pleaded claim. I should observe that, although [37]-[40] in Kramer are not in those paragraphs expressed as elements of a proprietary estoppel by encouragement, it appears from [32] that the High Court was setting out to define the elements of that particular doctrine, and not equitable estoppel generally (the first sentence of [37] also appears to recognise a distinction between what follows and the requirements of “equitable estoppel generally” and the requirements of “estoppel by representation generally”). Nevertheless, counsel for Christina was content to argue the application by reference to the statement of principles in Kramer at [37]-[40] and I will proceed accordingly.

97. [277]

    It is true that ordinarily, in an estoppel by encouragement case, the defendant makes a promise to the plaintiff, expressly or impliedly to confer a proprietary interest in the defendant’s property to the plaintiff. But the statement of principle in Kramer does not in terms mandate this as a requirement. For similar reasons I do not think that I should dispose of the claim summarily on the basis that there was no promise of the grant of an interest in existing property.

98. [278]

    But Kramer at [37] still requires there to have been a “promise”. Counsel’s point about the pleading in this regard is well taken. It is difficult to identify what it is that Christina alleges her father was actually promising to do. This is particularly important because at the time the deceased’s “representations” were allegedly made the family business was under the control of Ernest. It is not immediately obvious how promises, let alone “clear and unequivocal” ones, that Christina would derive benefits from working in the family business could have been made by anyone other than him.

99. [279]

    There is a related point. As appears from Kramer at [40], where the promise is of a life changing nature such as to justify proprietary relief, then the promise which is alleged is the starting point for the grant of relief. The relief claimed by Christina in the present case is a one quarter share of the settlement funds in Robert’s hands. SC3 conspicuously refrains from alleging that the deceased actually promised to give Christina this (or any other) share of his share of the family business. The allegation in [69(B)] that the deceased “represented” to Christina that she should “keep in mind” the terms of the 1957 letter only reinforce the absence of any allegation of such a promise.

100. [280]

     In my view the pleading of the promise or promises allegedly made by the deceased is defective. The defect necessarily flows through to the other elements of the claim, and particular the requirement of detrimental reliance.

101. [281]

     Detrimental reliance is pleaded at SC3 [74] in a conclusory way by reference to representations by Ernest (now irrelevant) as well as the deceased. The detriment allegedly flowing from Christina’s move to Singapore, it seems from particulars A and B, was allegedly solely the result of representations made by Ernest (see also SC3 [38]). As such it is now, on the face of it, irrelevant. The other alleged reliance covers the period from 2011 onwards when Christina was involved in the litigation. But on the face of it, that conduct would have been for the benefit of the Nominee Companies who were the plaintiffs in the proceedings (or for the personal benefit of Christina, James and Edward, to the extent that they personally were parties to cross-claims). Even if Christina is able to articulate an actionable promise by the deceased, it will be necessary to tie that alleged promise to some specific and separate detrimental reliance for her to have a viable claim.

102. [282]

     But although I consider that the pleading is defective, and should be struck out, the proceedings are still at a relatively early stage. Terrill has not even yet been required to file a defence of behalf of the deceased’s estate. The family provision claim is still pending. Wasted costs may be the subject of an appropriate order in Terrill’s favour. In the context of this litigation it is difficult to see what further prejudice of substance there could be in granting Christina leave to replead her estoppel claim against the deceased, and none was articulated by counsel.

103. [283]

     Whether Christina is able to articulate a promise or promises which can then be linked up with reliance and life changing detriment on her part remains to be seen. But I think she should be given a last opportunity to do so.

104. [284]

     I have concluded that:

     1. (1)

        the descendants’ trust claim should be summarily dismissed;

     2. (2)

        the “inter-generational” estoppel claim should be struck out; and

     3. (3)

        the conventionally pleaded estoppel claim should likewise be struck out, but in its case, there should be leave to replead.

105. [285]

     It will be necessary to identify the prayers for relief and pleading paragraphs which are to be struck out of SC3 as a result of conclusions (2) and (3). My preliminary view is that conclusion (2) will result in prayer 3 and [35], [35A] (as to Ernest and Camila), [36]-[37], [38] (as to Ernest), [39]-[40A], [58]-[66] and [77] being struck out. Conclusion (3) will require prayer 3A and [35A] (as to the deceased), [38] (as to the deceased), [68]-[75], [79] and [79A] to be struck out. As a result of prayers 3 and 3A being struck out, the consequential relief sought in prayers 4, 5, 5A and 13 will also need to be struck out. This will leave prayers 1, 2 and 5B-12 to be summarily dismissed as a result of conclusion (1).

106. [286]

     The summary dismissal of the descendants’ trust claim will leave the notional estate claims and the only remaining basis for the joinder of the remaining defendants other than Terrill as defendants. There may be a challenge to the viability of those claims, which, if successful, would result in the proceedings against those remaining defendants being wholly dismissed.

107. [287]

     The summary dismissal of the descendants’ trust claim may mean that the subject matter of the Singapore proceedings disappears and with it the threat of an anti-suit application there. In any event it will bring that claim to an end, so that the basis for an injunction in aid of proceedings on the claim in this Court will fall away. If I am right in suspecting that the defendants do not argue that the conventionally pleaded estoppel claim forms part of the subject matter of the earlier Singapore proceedings, it would seem to follow that the anti-suit orders made on 17 November should be discharged.

108. [288]

     On 16 January this year I issued to the parties a draft of the judgment to this point. I asked them to confer on the orders to be made to give effect to my conclusions on the summary judgment application, and on costs. I also invited them to identify any errors or omissions in the draft judgment.

109. [289]

     The consultations between the parties resulted in some agreed corrections to the draft judgment, which did not affect the conclusions I have reached. They also resulted in a measure of agreement on the orders to be made. That question was then the subject of a further hearing on 20 February. After I had ruled at the hearing on the remaining areas of dispute, the parties agreed on a final form of the orders reflecting those rulings.

110. [290]

     The parties agreed on the parts of the statement of claim to be summarily dismissed and struck out in accordance with my conclusions. Counsel for Christina intimated that the offer of leave to apply to replead what I have termed the “conventionally pleaded estoppel” claim would be taken up, and a timetable was agreed for this purpose.

111. [291]

     The main area of debate concerned the extent to which the interim anti-suit orders which I had made on 17 November should continue to operate. Counsel for Christina accepted that, to the extent that those orders applied to the descendants’ trust claim, which was to be summarily dismissed, they should be discharged. But counsel sought a stay of the discharge order to allow Christina, if so advised, to pursue an application for leave to appeal against the summary dismissal. This was not opposed.

112. [292]

     Counsel for Christina pointed out, however, that the conventionally pleaded estoppel claim, although it had been struck out in its current form, might ultimately be repleaded in a way which would allow it to go to trial. Counsel submitted that the 17 November order should continue, so far as that claim was concerned, at least until the foreshadowed application for leave to replead had been determined.

113. [293]

     As already noted, it was not clear to me that the negative declarations sought in the current Singapore proceedings (which were formulated before the conventionally pleaded estoppel claim clearly emerged as an alternative basis for relief) were intended to encompass that claim. Counsel for the defendants, however, was not prepared to concede that the claim had not been, or could not be, made the subject of the Singapore proceedings. In those circumstances, I considered that the anti-suit orders should be continued so as to protect that possible claim, as sought by counsel for Christina.

114. [294]

     As to costs, it was common ground that the defendants had substantially succeeded on their summary dismissal motions and Christina should pay the costs of those motions. Counsel for the defendants also sought an order that Christina pay the costs of the application for the anti-suit orders. As a result of my ruling, however, those orders have only been partially discharged. The convenient course is for the costs to be reserved until the full outcome of the application is known.

Orders

1. [295]

   The orders made by the Court on 17 November 2025 on the Third Defendant’s notice of motion filed 17 November 2025 were:

   1. (1)

      Order that the motion be dismissed.

   2. (2)

      Order that the applicant pay the respondent’s costs of the motion.

2. [296]

   The orders made by the Court on 17 November 2025 on the Plaintiff’s notice of motion filed 23 July 2025 were, as later amended under the slip rule, relevantly:

3. [297]

   The further order I now make on the Plaintiff’s notice of motion filed 23 July 2025 is:

   1. (1)

      Order that the costs of the motion be reserved.

4. [298]

   The orders the Court made on 6 March 2026 on the First Defendant’s, and the Third to Sixth Defendants’ notices of motion filed 26 November 2025, as later amended on 21 April 2027 pursuant to the slip rule are:

   1. (1)

      Order that the proceedings be summarily dismissed, in part, pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) being the relief contained in prayers for relief 1, 2 and 5B-12A of the further amended statement of claim filed on 24 November 2025 (the FASOC).

   2. (2)

      Order that the following paragraphs of the FASOC be struck out pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW):

   3. (3)

      Order that the following paragraphs of the FASOC be struck out pursuant to rule 14.28(1) of the Uniform Civil Procedure Rules 2005 (NSW):

   4. (4)

      Order that the Plaintiff pay the First Defendant’s costs of her notice of motion filed 26 November 2025 as agreed or assessed.

   5. (5)

      Order that the Plaintiff pay the Third to Sixth Defendants’ costs of the notice of motion filed by them on 26 November 2025 as agreed or assessed.

   6. (6)

      Direct the Plaintiff to serve a draft second further amended statement of claim (“SFASOC”) to replead the ‘conventionally pleaded equitable estoppel claim’ being the claim as identified in paragraphs [276] to [283] of Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163 and struck out above in Order 3-4 on or before 4pm on 16 March 2026.

   7. (7)

      Direct the First, and Third and Sixth Defendants respond by 4pm on 18 March 2026 as to whether they consent to the filing of the proposed SFASOC.

   8. (8)

      In the event that the First, and Third to Sixth Defendants do not consent to the filing of the proposed SFASOC, direct the Plaintiff to file and serve on or before 20 March 2026 a Notice of Motion for leave to file the proposed SFASOC returnable before Justice Parker on 23 March 2026.

   9. (9)

      Order that Order 7 made on 17 November 2025 and amended by Order 1 made on 4 December 2025 and Order 8 made on 17 November 2025 be discharged except in respect to the conventionally pleaded equitable estoppel claims, as referred to in Orders 12 and 13 below.

   10. (10)

       Order that the undertaking given to the Court by the First and Third to Sixth Defendants on 30 July 2025, that they will not apply for an anti suit injunction in proceedings HC/OC 871/2024 in the High Court of the Republic of Singapore or elsewhere until the later of:

   11. (11)

       Order that Order 9 above be stayed until 6pm on 23 March 2026 notwithstanding Orders 1, 2 and 3 above.

   12. (12)

       Order that the First, Third, Fourth, Fifth and Sixth Defendants be restrained, by way of an anti anti suit injunction from taking any steps to obtain an order in the courts of the Republic of Singapore, or elsewhere restraining the Plaintiff from prosecuting in these NSW Supreme Court proceedings number 2023/214349 the ‘conventionally pleaded equitable estoppel claim’ for relief, being the claim as identified in paragraphs [276] to [283] of Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163 or to pre-empt, or otherwise, interfere with that claim in these proceedings until 6pm on 23 March 2026.

   13. (13)

       Order that the First, Third, Fourth, Fifth and Sixth Defendants be restrained, by way of an anti suit injunction from taking further steps to prosecute or maintain the relief sought in the proceedings designated as HC/OC 871/2024 in the High Court of the Republic of Singapore in relation to the Plaintiff’s ‘conventionally pleaded equitable estoppel claim’ for relief in these NSW Supreme Court proceedings number 2023/214349, being the claim as identified in paragraphs [276] to [283] of Perez de la Sala v Perez de la Sala (No 4) [2026] NSWSC 163 or substantially similar relief in other proceedings commenced in Singapore or any other jurisdiction other than New South Wales until 6pm on 23 March 2026.

   14. (14)

       Stand the matter over for further directions before Parker J on 23 March 2026.