The Court of Appeal for Ontario in Tiernan v. Dietrich, 2011 ONCA 263 has declined to stay execution of a foreign judgment pending appeal. The matter involves an action to enforce a judgment obtained in Michigan against the defendant, a former Michigan attorney. (more…)
Archive for the ‘Mocambique Rule’ Category
Perry Herzfeld on "Fraudulent alienation of foreign immovables and the Mocambique rule in the Western Australian Court of Appeal"January 20, 2010
“Singh v Singh (2009) 253 ALR 575;  WASCA 53, in the Western Australian Court of Appeal, was a dispute between two brothers, both resident in Western Australia. One, the plaintiff, claimed that the alienation by the other, the defendant, of real estate in Malaysia was made with the intent to defraud creditors, within the meaning of s 89(1) of the Property Law Act 1969 (WA). (That section is the modern equivalent in Western Australia of the Elizabethan statute 13 Eliz c 5, which has been reproduced in all Australian states and the Commonwealth.)…”
For additional analysis on the Mocambique Rule, see my previous post here.
Perry Herzfeld on Mareva orders over foreign land in the Supreme Court of Victoria (via conflictoflaws.net)September 18, 2009
(a) Provided that the defendant is subject to this Court’s jurisdiction, this Court has power to make a Mareva order in respect of foreign assets and there is no rule of practice against granting such an injunction.
(b) Whether the assets were in the jurisdiction at the time the proceeding was commenced, or indeed have ever been within the jurisdiction, does not affect whether the court has jurisdiction to make a Mareva order or its practice in relation to such orders. However, it may be relevant to the exercise of the discretion.
(c) It has been said that the discretion to make a Mareva order in respect of foreign assets should be exercised with considerable circumspection and care. The suggestion in one Australian case that the jurisdiction should only be exercised in ‘exceptional cases’, which appears to broadly reflect the English position, has not been followed consistently in the Australian cases dealing with the exercise of discretion. With respect, I do not accept that the discretion can only be exercised in exceptional cases. …
(d) The discretion will be exercised more readily after judgment.
His Honour noted (at ) that these ‘principles have, in broad terms, also been applied in relation to mandatory injunctions requiring parties to do acts with an overseas element’. It is worth noting that his Honour also observed that the claim against Jan Talacko fell outside the Mocambique rule, being based on breach of terms of settlement arising from allegations of breach of contract, trust and fiduciary duty…”.
Here is the abstract:
However, since Professor McLeod’s first pre-requisite only addresses presence-based and consent-based jurisdiction, the court’s have sometimes resorted to the Muscutt factors to assume jurisdiction over property-based claims, which offend the Mocambique rule. The Muscutt factors for assuming jurisdiction should be limited to traditional non-property claims in lieu of service-based or consent-based jurisdiction. The process of characterization is ultimately discretionary. However, the determination of jurisdiction simpliciter is not.
Part I introduces the key components of judicial jurisdiction in the context of Canadian private international law. Part II provides an overview of the nature and scope of the in personam exception. Part III considers the utility of the real and substantial connection test by analyzing the in personam exception through the prism of recent Canadian case law where jurisdictional challenges raised relating to claims involving foreign real property led to divergent results. In Part IV, I conclude by proposing a three-factored test for jurisdiction simpliciter, which integrates the in personam exception in respect of foreign immovables