I. INTRODUCTION
4.1 The courts in England and in other jurisdictions reviewed above have developed a number of exceptions to the general principle stated in the Mozambique case. The ambit of each exception is by no means precisely defined, and varies in some instances from country to country. The circumstances in which the courts are prepared to hear a matter, even though foreign land is involved, comprise suits in which:
(a) there is a contract or, equity between the parties;
(b) the court otherwise has jurisdiction in the administration of a deceased person’s estate;
(c) the court’s admiralty jurisdiction is invoked; or
(d) there is a dispute regarding property between de facto spouses.
II. CONTRACT OR EQUITY BETWEEN THE PARTIES
4.2 This exception comprehends two distinct strands of historical development, although it is often treated as being unitary both by text-writers1 and courts.2
4.3 First, an action at common law on a contract either for damages for breach or in debt to enforce the promise of payment of an agreed sum was regarded, even in medieval England as, transitory in nature. It was therefore never subject to the jurisdictional limitations placed upon local actions. And the action retained its characterisation as transitory even though the contract in question related to foreign land, such as a lease.3 Furthermore, the passing of the Grantees of Reversions Act 1540 (Eng ) 4 created a curious anomaly with regard to actions on covenants in a lease. By virtue of the statutory provisions, proceedings between thee original lessee and an assignee of the landlord were also regarded as transitory, whereas proceedings between the original lessor and an assignee of the lessee were (and presumably still would be) classified as local, and therefore subject to the Mozambique rule.5
4.4 Secondly, the Court of Chancery in England regarded itself as acting only in persona on the conscience of the defendant. It therefore considered that it was able to make a decree against a person properly before the court, even though the nature of that decree might have been such as to affect the title to or right to possession of land outside England. This jurisdiction was established by Lord Hardwicke LC, in Penn v Lord Baltimore,6 when he decreed specific performance of an agreement relating to the boundaries between the then American colonies of Pennsylvania and Maryland. It was recognised by Arden MR, in Lord Cranstown v Johnston7 as including situations in which there was not necessarily a contract between the parties, but an equitable obligation arising (in that case) from the unconscionable conduct of the defendant, thus allowing the Master of the Rolls to order the recoveyance to the plaintiff of his plantation in the West Indies,
4.5 With the advent of the judicature system, it has been recognised, both in Australia8 and England,9 that a court in the exercise of its equitable jurisdiction may issue an order directing the defendant to deal in some way with land outside the country. If the defendant should fail to comply with the decree, it may be enforced by committal or sequestration of assets, until the order is carried out. Although some of the older cases referred to this jurisdiction as being exercisable only over a defendant who was personally present (or resident) within the jurisdiction, it has subsequently been recognised as being available so long as the defendant, although personally outside the country, may be served with notice of a writ under the local equivalent of Part 10, r 1 of the Rules of the Supreme Court.10
4.6 The major limitation on this equitable jurisdiction is that it depends not merely upon the plaintiff seeking the aid of an equitable remedy, but upon “the existence between the parties to the suit of some personal obligation arising out of contract or implied contract, fiduciary relationship or fraud, or other conduct which, in the view of the Court of Equity... would be unconscionable”.11 It has therefore been held in this country that the exceptional jurisdiction does not avail a plaintiff who seeks a declaration that the rights of a mortgagee of land in another country are statute-barred,12 nor a plaintiff who wishes to enjoin the defendant from trespassing on real property inter-state.13 It may, however, be observed that in the United States this exception has been applied whether the plaintiff seeks an equitable remedy, including an injunction to prevent further trespassing on foreign land.14
III. ADMINISTRATION OF DECEASED ESTATES
4.7 A further exception to the rule in the Mozambique case - or on occasions a blatant derogation from that rule - relates to the administration of the estate of a deceased person. So long as the local court has jurisdiction to administer the estate (which it may take longer by virtue of the presence of the legal personal representative within the jurisdiction, or by reason of the domicile there of the deceased at the date of death15), and the estate includes property, whether immovable or movable, situate within its territory, that court may take jurisdiction to determine questions of title to land situate outside its territory. Although this exception has not been expressly adopted by a court of England or Australia,16 its existence to be derived from decisions such as Nelson v Birdport17 and Re Duke of Wellington18 in which the English court determined the devolution of land in, respectively, Sicily and Spain forming part of the estate of, respectively, Admiral Nelson and the Duke of Wellington. There is no reason to doubt that the exception is part of the law in this country also.19
4.8 The exception relates, however, only to the administration of a deceased’s estate, and not necessarily to the substance of rights to succession. The exception clearly does not apply to the discretionary power of the court to make further provisions for the dependants of a deceased, under the testator’s family maintenance legislation (ie. Family Provisions Act 1982.) The jurisdiction of the court to make an order under this statute was stated by Sholl J in Re Paulin20 as depending exclusively, in the case of movables, on the deceased being domiciled in the territory of that court at the date of death and, in the case of immovables, on the situation of that property within that territory. Although the court’s power has been extended, by s11(1)(b) of the Family Provisions Act, to include movable property in New South Wales of a deceased who was not domiciled in the State, the Act apparently accepts the limitations stated by Sholl J with regard to land. Thus in the case of a person who dies domiciled in New South Wales but possessed of immovable property in an other State or country, any order made under the Family Provision Act cannot affect in any way, whether directly or indirectly, the immovable property outside the State.21
4.9 It may be observed that the statement of the law by Sholl J in Re Paulin may lead to a part of the deceased’s estate not being affected in any way by such family provision legislation. For example, the Inheritance (Provision for Family and Dependants) Act 1975 (Eng), s1(1), restricts the applicability of the legislation to the estates of persons who die domiciled in England and Wales. If, therefore, a person were to die domiciled in New South Wales, but having previously converted the greater proportion of his or her estate into realty in England, and devised that property to persons other than his or her immediate family, the family would be unable to seek any substantial further provision from the estate. The New South Wales court, by virtue of the above judicially developed rules, could make an order that would relate only to such of the estate as was situated in this State (or was movable property located elsewhere) , while the English court would lack the power to make an order by reason of the above legislative provision.22 Even if, in the above example, the deceased’s real estate were situated in New Zealand, rather than in England, the family would, as the law now stands, be obliged to make two applications for further provision - one in New South Wales and the other in New Zealand.
IV. ADMIRALTY ACTIONS
4.10 If those in control of a merchant ship, by failing to exercise due care, permit the ship to cause damage to another’s property, the latter may bring proceedings, at their option, either in personam against the owners of the ship (in which case jurisdiction is established by personal service on the owners), or in rem against the ship itself (in which case jurisdiction is established by service of the writ on the ship, when it is within the territory of the court). In the latter circumstance, the proceedings may take the form of the enforcement of a maritime lien on the ship, but in both situations the action is heard in the Admiralty Division of the Supreme Court.
4.11 The jurisdiction of that Division is derived originally from the Colonial Courts of Admiralty Act 1890 (Imp) 23 which, by s2(2), declared that its jurisdiction should be the same as the Admiralty jurisdiction of the High Court of England. The latter court, by virtue of the unanimous decision of the English Court of Appeal in The Tolten,24 has the power to enforce a maritime lien on a ship for damage done to land or fixtures out of England; and a majority of the Court in that case (Scott and Somervell LJJ) concluded, although the issue was not necessary for their decision, that the admiralty jurisdiction extends to hearing an action in personam against the owners of a ship for damage done to foreign land. There is no reason to doubt that the Admiralty Division of the Supreme Court of New South Wales has the like power to hear actions, whether in rem or in personam, for damage done by a ship to land outside the State.
V. PROPERTY DISPUTES BETWEEN DE FACTO SPOUSES
4.12 It is probable that, in the hearing of a property dispute between de facto spouses, the Supreme Court would not be limited in the exercise of its powers under the De Facto Relationships Act 1984 by reason only of the fact that real property of one of the parties was located outside the State. In Hamlin v Hamlin, 25 the English Court of Appeal held that it had the power to restrain a husband from disposing of a house in Spain, on being satisfied that the husband’s intentions in making the disposition were to defeat the wife’s claim for financial relief ancillary to divorce proceedings. The court regarded the statutory power of restraint (similar to that contained in s42 of the De Facto Relationships Act 1984) as being analogous to the power exercised by the court in it’s equitable jurisdiction (considered above, paras 4.4 et seq) to make an order in personam, if there is a contact or equity between parties, even though the order may impinge upon the title to foreign realty. It also appears that in the family Court of Australia would have little hesitation in making personal order for the payment of money in respect of the parties to divorce proceedings, even though the amount of the order might be ascertained having regard to the value of real property outside the country.26
FOOTNOTES
1. Dicey and Morris, on Conflict of Laws (11th ed 1987), 928: Cheshire and North’s Private International Law (10th ed 1979), 495 Cf P E Nygh, Conflict Laws in Australia (4th ed 1984), 66-67, who distinguishes between actions arising out of a contract and the jurisdiction of courts of equity.
2. St Pierre v South American Stores (Gath and Chaves ) Ltd [1936] 1 KB 382 esp at 396 per scott LJ.
3. Smith’s Leading Cases (7th ed, 1876) vol 1 at 691.
4. The sustance of this act is contained in the Conveyancing Act 1919 (NSW), ss117 and 118
5. Smith’s Leading Cases (7th ed, 1876) vol 1 at 691.
6. (1750) 1 Ves Sen 444; 27 ER 1132.
7. (1796) 3 Ves 170 at 182- 183; 30 ER 952 at 959.
8. See Inglis v Commonwealth Trading bank of Australia (1972) 20 FLR 30 at 38-40 per Woodward J; Couzens v Negri [1981].
9. Companthia de Mozambique v British South Africa Co [1892] 2 QB at 364 per Wright J; Deschamps v Miller [1908] 1 Ch 856 at 863 per Parker J.
10. Jenny v Mackintosh (1886) 33 ChD 595; Duder v Amsterdamsch Trustee Kantoor [1902] 2 Ch 132.
11. Deschamps v Miller [1908] 1 Ch 856 at 863 per Parker J; for illustrations of cases within this rubric see for example Dicey and Morris, note 933-935; Nygh, note 1 at 68.
12. Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30.
13. Corvisy v Corvisy [1982] NSWLR 557.
14. Ramirez de Arellano v Weinberger 745 F 2d 1500 at 1529 (see, above para 3.12. note 19 to chapter 3).
15. Nygh, note 1, 485.
16. But see Jubert v Church Commissioners for England 1952 SC 160, in which Scots Court of Sessions approved (at 162) the formulation in Dicey and Morris note 1 at 924.
17. (1846) 8 Beav 547; 50 ER 215.
18. [1948] Ch 118.
19. See Dawson v Perpetual Trustee Co Ltd (1953) 89 CLR at 150- 151 per Dixon CJ, Kitto and Taylor JJ.
20. [1950] VLR 462 at 465.
21. Re Donnelly (1927) 28 SR (NSW) 34 at 37 per Harvey CJ in Eq; Re Osborne [1928] St R Qd 129 at 132 per Woolcock J; Re Paulin [1950] VLR 462 at 465 per Sholl J; Re Butchart [1932] NZLR 125; Re Bailey [1985] 2 NZLR 656; Solomon v Hatti (NSW Court of Appeal, 10 February 1987, unreported.
22. This illustration is based on the facts which were considered by Prichard J in Re Bailey [1985] 2 NZLR 656.
23. McIlwraith McEacharn Ltd v Shell Co of Australia Ltd (1945) 70 CLR 175; see now the Admiralty Act 1988 (Cth).
24. [1946] P 135.
25. [1986] Fam 11.
26. See In the Marriage of Allison (1981) 1 SR (WA) 248.
