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Court of Appeal of New Zealand |
Last Updated: 2 September 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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First Respondent
FORERUNNER SYSTEMS LIMITED
Second Respondent
DALE BENJAMIN SPEEDY AND JEANNE ELIZABETH MARY SPEEDY
Third Respondents |
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Hearing: |
24 July 2014 |
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Court: |
Ellen France, Wild and Miller JJ |
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Counsel: |
J H Hunter and J Hawker for Appellant
DRI Gay and JLW Wass for Respondents |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS
OF THE COURT
(Given by Miller J)
[1] The appellant, Pauline Schumacher, claims that a property called Summer Grove House is held on constructive trust for her, the result of her contributions to the property when she and James Speedy were married and lived there with their children. To establish her claim she has brought proceedings in the High Court at Auckland.
[2] Summer Grove is a Georgian country house situated at Mount Mellick, County Laois, in the Republic of Ireland.
[3] Title to the property is held by the first respondent, Summergrove Estates Ltd, a Turks and Caicos Islands company whose sole shareholder is the second respondent, Forerunner Systems Ltd, a New Zealand company whose shareholders and directors are the third respondents, Jeanne and Dale Speedy, who are respectively the mother and brother of James. Jeanne and Dale Speedy live here, as does Ms Schumacher. James Speedy still lives at Summer Grove.
[4] Before us is an appeal from a High Court decision allowing the respondents’ objections to jurisdiction and striking the claim out.[1] The question is which jurisdiction, New Zealand or the Republic of Ireland, is forum conveniens.
[5] The following narrative is drawn for the most part from the affidavit evidence of Jeanne and Dale, supported by a substantial contemporaneous documentary record. Ms Schumacher, whom we will call Pauline, has not responded.
[6] Pauline and James Speedy were married in New Zealand in 1980. James was a solicitor. The couple borrowed heavily to, among other purposes, build a home at Papakura and establish James’s legal practice. They received considerable financial support from his family. Some of their debts were guaranteed by James’s parents, Tristram, who is now deceased, and Jeanne.
[7] By 1992 the couple were in serious financial trouble. Jeanne deposes that they sold their furniture to her in February 1992 for $90,000.00, to save James from being reported to the Law Society for failing to honour an undertaking to refinance a loan. A bill of sale was duly signed.
[8] In October 1992 James and Pauline fled the country with their two children. The immediate cause was the discovery of financial irregularities in his legal practice. (James was later struck off the roll of barristers and solicitors.) His family aided them by paying their relocation and living expenses, aiming to give them a fresh start in Ireland. The assistance does not seem to have been received in grateful spirit; Jeanne complains that Pauline insisted on flying business class and among other extravagances the couple used her credit card without authority to pay the deposit on a BMW car.
[9] Tristram and Jeanne were subsequently required to meet their guarantee obligations. That necessitated the sale of assets of their own. Even so, James and Pauline were bankrupted in October 1993, owing what appear to be substantial sums.
[10] Summer Grove House was bought in July 1993. The property, which was run down, included approximately 47 acres of land. Dale explains that it was to provide accommodation for James and Pauline, and allow them to become self-supporting; they proposed to establish horse training and bed and breakfast businesses. Forerunner Systems funded the $700,000 required to purchase the property by way of shareholder advances from Jeanne, Tristram and Dale, who were also the company’s directors.
[11] It seems that Summergrove Estates was incorporated in the Turks and Caicos Islands and given title to guarantee that the property lay beyond the reach of James’s creditors.[2] That company granted Forerunner Systems a mortgage to secure the advances ultimately made by the latter’s shareholders. The directors of Summergrove Estates were Jeanne, Tristram, Dale, James and Pauline. It is said that James and Pauline were so appointed to assist their (ultimately successful) applications for Irish residency.
[12] The couple lived in Summer Grove rent free. It appears that since 1993 Jeanne and Dale have paid a little less than $1 million to cover some of their living expenses and to upgrade and maintain the property.
[13] In 1999 a mortgage was taken out to finance renovations at Summer Grove. The mortgagee was Ulster Bank. James and Pauline were to pay the outgoings, including insurance, but they fell into default.
[14] In 2000 or 2001, James and Pauline agreed to sell about two acres of bare land at Summer Grove. The purchaser, a friend, paid them the purchase price in advance, but they were unable to deliver title and did not account for the money. They had sought neither the agreement of the other directors nor the consent of Ulster Bank, which refused to release the land and eventually began mortgagee sale proceedings.
[15] This crisis led to the sale of approximately 27 acres of land. As part of this arrangement, James and Pauline signed a “deed of undertaking” with Forerunner Systems, promising that if a partial sale was not achieved by 30 April 2003 they would help to market the entire property and would provide vacant possession when the directors of Forerunner Systems required it. They also waived any rights that they might have under Irish law to continue living in the house and undertook not to exercise any rights that they might have as directors of Summergrove Estates to change the decision to sell.
[16] By resolution of 3 March 2003 the shareholders of Summergrove Estates resolved that James and Pauline be removed as directors of the company. This step was intended to ensure that they could no longer place the property at risk.
[17] The sale having been completed and Ulster Bank and certain other creditors repaid, Andrew Healy, the Irish solicitor for the respondents, wrote to James on 26 November 2003 notifying him of the terms on which he would be permitted to remain at Summer Grove. Mr Healy specified that the property would continue to be held by Summergrove Estates and would remain charged to Forerunner Systems as mortgagee. James would have the use of the property for so long as he could make a go of it and keep it viable. Should he run into financial trouble he must sort it out without any recourse to Summergrove Estates, the house and land, or Jeanne or Dale, who would not bail him out again. Mr Healy deposes that James accepted these terms, and on that basis the balance of the proceeds of sale were released so that James and Pauline could repay their other creditors and complete the refurbishment.
[18] Mr Healy’s strictures notwithstanding, James and Pauline came once more to the well, pressing Jeanne and Dale in 2004 to mortgage Summer Grove. The request was denied, but Summergrove Estates did transfer a five-acre section to Pauline, who promptly mortgaged it. She evidently retains title to that land, which forms no part of this proceeding. Summer Grove now comprises approximately 15 acres.
[19] James and Pauline separated in 2006.
The relationship property claim
[20] The claim was commenced in the Family Court at Papakura but has since been transferred to the High Court. In it Pauline seeks as against James a declaration that “the institutional constructive trust held by the parties in the assets of Forerunner Systems Limited” is relationship property, as are all rights to Summer Grove that James retains following separation, including the right to occupy the property. She seeks compensation for James retaining these rights. It will be seen that she alleges that she and James are together the beneficiaries of a constructive trust, which is said to arise from their work on “sustaining and improving” Summer Grove in the reasonable expectation of “rights of ownership.”
[21] In her supporting affidavit of assets and liabilities Pauline makes it plain that the alleged constructive trust is the principal asset of the relationship, and that most other assets, including the five acres mentioned above and a flock of sheep, are also in Ireland. She advances a claim to certain antiques and similar property in New Zealand, but it appears that those are the items sold to Jeanne in 1992.
[22] James has taken no steps in the relationship property proceeding. The respondents are not party to that proceeding and they have resisted consolidation with this one.
[23] This proceeding is brought against Summergrove Estates Ltd, Forerunner Systems Ltd, and Dale and Jeanne. The latter are sued as directors of Summergrove Estates and Forerunner Systems. James is not a party, although his presence would seem essential in circumstances where Pauline rests her claim on a constructive trust of which they are joint beneficiaries.
[24] Pauline pleads that during their joint occupation she and James spent money and effort in renovating and improving the property and developing a business, and that she did so in “the reasonable expectation that she would acquire a proprietary interest in Summer Grove House”. She says that Summergrove Estates and Forerunner Systems have “by their agents” Jeanne and Dale refused to recognise her interest in the property. The relief sought is a declaration that the respondents hold Summer Grove House by way of institutional constructive trust for Pauline’s benefit, and for equitable damages to be quantified.
[25] Jeanne and Dale were served in New Zealand as they are domiciled here. It appears that Summergrove Estates may not have been served.[3] Forerunner Systems and Dale and Jeanne filed notices of appearance under protest to jurisdiction and moved for orders dismissing the proceeding on the ground that the High Court has no jurisdiction to decide it.[4]
[26] Associate Judge Sargisson refused to dismiss the proceeding and set aside the notices of appearance, having concluded that the High Court enjoys jurisdiction and New Zealand is the appropriate forum. The Associate Judge considered that the real issue is whether the remedy sought, namely the declaration, is a remedy in personam or in rem.[5] If in rem the claim would fall within the Mocambique rule[6] and the High Court would be without jurisdiction. The rule holds that a domestic court is without jurisdiction over proceedings primarily concerned with title to or the right of possession of immovable property situated outside the jurisdiction unless the action is based on a contract or equity between the parties (the in personam exception) or the proceeding concerns the administration of an estate or trust and extends to other property within the jurisdiction. The Associate Judge reasoned that the remedy sought is in personam, partly because Pauline seeks equitable damages and partly because a claim brought to vindicate equitable rights is not in rem.[7] She also found that all of the natural persons involved in the proceeding are domiciled in New Zealand, the closest and most real connection of any constructive trust would be to the New Zealand system of law, an order that Summergrove Estates hold the property in trust for Pauline could be enforced in the Irish Republic, and it would likely be much cheaper and more convenient to conduct the proceeding in New Zealand.[8]
[27] On review, Woolford J disagreed. He accepted that the in personam exception to the Mocambique rule applies, but correctly observed that it does not follow that New Zealand is the appropriate forum.[9] The real question is whether Ireland or New Zealand is the forum with which the proceeding has the most real and substantial connection.[10] In cases involving overseas real property a New Zealand court is not normally forum conveniens. Applying those principles, the Judge concluded that Irish law is the lex causae of the dispute. No single rule governs choice of law for all constructive trusts, but the authorities indicate that the property choice of law rule should be applied to claims relating to immovable property. That being so the Judge held Irish law, the law of the lex situs, applies.[11] It applies even if the claim is characterised as restitutionary, because the alleged unjust enrichment took place in Ireland. Other factors also favour Ireland.[12] Notably, the judgment would have to be enforced there, and it is not certain that Irish courts would enforce a New Zealand judgment; they might think they have exclusive jurisdiction. Cost and inconvenience favour Ireland. He accordingly quashed the Associate Judge’s decision and dismissed Pauline’s claim. Woolford J granted leave to appeal.[13]
[28] The second and third respondents having been validly served, they must point to some more appropriate forum of competent jurisdiction:[14]
a stay will only be granted on the ground of forum non conveniens where the Court is satisfied that there is some other available forum, having competent jurisdiction, which is the most appropriate forum for trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.
[29] New Zealand courts apply this principle in the following manner:[15]
(a) in general the burden of proof to persuade the court to exercise its discretion to grant a stay rests on the defendant not just to show that New Zealand is not the natural or appropriate forum for the trial but also to establish that there is another available forum which is clearly or distinctly more appropriate;
(b) if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial, the burden will shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial of the action should nevertheless take place in New Zealand;
(c) the natural forum will be the one with which the action has the most real and substantial connection, including factors affecting convenience or expense (such as availability of witnesses), the law governing the relevant transaction and the places where the parties respectively reside or carry on business; and
(d) special circumstances by reason of which justice may require a stay not to be granted will include consideration of factors such as the inability of the plaintiff to obtain justice in the foreign jurisdiction, advantages which the plaintiff may derive from involving the New Zealand jurisdiction and the application of any relevant limitation periods.
The decision is a discretionary one for the trial Judge; accordingly, an appellate court will not interfere unless a material error of principle has been made.[16]
[30] We accept Mr Gay’s submission that when identifying the natural forum a court looks to the law governing the claim, personal and subject matter connections to the competing jurisdictions (such as the parties’ residence, the location of the subject matter, and the place where the events giving rise to the claim occurred), where any judgment would need to be enforced, the relative costs and convenience of proceeding in each jurisdiction, and the strength of the plaintiff’s case. Courts ordinarily recognise that controversies over immovable property should be decided in the country where the property is, that being the sovereign state where power over the property resides and to whose authorities considerations of comity and effectiveness invite deference.[17]
[31] We turn to the question whether the Republic of Ireland is the forum with which this proceeding has the most real and substantial connection. The onus here rests on the respondents.
[32] New Zealand courts ordinarily ascertain governing law by applying the test in Macmillan Inc v Bishopsgate Investment Trust Plc:[18]
In finding the lex causae there are three stages. First, it is necessary to characterise the issue that is before the court. Is it for example about the formal validity of marriage? Or intestate succession to moveable property? Or interpretation of a contract?
The second stage is to select the rule of conflict of laws which lays down a connecting factor for the issue in question. Thus the formal validity of a marriage is to be determined, for the most part, by the law of the place where it is celebrated; intestate succession to moveables, by the place where the deceased was domiciled when he died; and the interpretation of the contract, by what is described as its proper law.
Thirdly, it is necessary to identify the system of law which is tied by the connecting factor in stage two to the issue characterised in stage one.
[33] We record that Ms Hunter invited us to reject MacMillan v Bishopsgate and ascertain governing law by reference to the Rome II Regulation,[19] which now applies in the European Union, or the United States second Restatement of the Law of Conflict of Laws.[20] She submitted that one or other of these models should now be preferred in the interest of comity and consistency, and argued that Macmillan focuses too much on the “legal foundation of the issue” in any given case and too little on “relational” aspects, such as where enrichment occurred. This is not the right case to accept that invitation. For reasons which follow, Irish law plainly applies.
[34] Counsel agreed that no single choice of law rule applies to constructive trust claims. Ms Hunter would have us adopt one. She acknowledged that constructive trust cases are located along a continuum which at one end may be closely connected to property, but argued that unconscionability underlies all constructive trusts and this distinguishes them conceptually from other trusts found in the law of property. Where a trust is founded in the law of obligations, as institutional constructive trusts are in New Zealand law, it should be considered restitutionary rather than proprietary in nature.
[35] We observe that the MacMillan test is an analytical tool used to answer a single question; which is the most appropriate law to govern the substantive issues? The question is essentially practical in nature; as Staughton LJ held, a court should seek “commonsense solutions based on practical considerations”.[21]
[36] We make two points. First, as Auld LJ observed in MacMillan, the underlying principle at work is that of comity between nations, and distinctions in classification of claims should not inhibit this principle.[22] Because consensus matters a court engaged in classification looks for the “true issue” in the case, anticipating that courts of the lex situs will agree, and hence defer.[23] It follows that it is an error to dwell on “particular notions or distinctions” of domestic law.[24] Second, and for the same underlying reason, private international law concerns itself more with the distinction between immovable and movable property than the classification of claims.[25] Courts anticipate that the lex situs, which ultimately controls immovable property, may decline to enforce or supervise orders of a foreign court.[26]
[37] We observe that controversy still surrounds the true character of constructive trusts as proprietary or restitutionary, substantive or procedural.[27] The orthodox view of constructive trusts in private international law is that what must be classified is not the trust but the obligation or interest or event that will lead a court to declare or impose it.[28] And where the claimant ultimately asserts an interest in real property, the property choice of law invariably applies. Dicey cites Lord Esher for the proposition that to choose otherwise would be to do indirectly what the court dare not do directly; that is, to assert jurisdiction over foreign land.[29] One commentator, Adeline Chong, puts the rationale in this way:[30]
Giving prime emphasis to the proprietary nature of trusts makes sense in the private international law arena. When it is asserted that property is held on a resulting or constructive trust for the claimant, the establishment of a trust will frequently be a precursor to the claimant ending the trust and compelling the defendant to transfer the property absolutely back into his name. Therefore, the general justifications for the application of the property choice of law rules when outright transfers of property are at issue apply equally when it is a trusts claim.
[38] The interest claimed in this particular case is proprietary in nature. Pauline’s claim rests upon no antecedent obligation, such as a contract or fiduciary duty. Rather, she asserts a proprietary interest in Summer Grove through a constructive trust founded upon her contributions to the property. We accept Mr Gay’s submission that her claim to equitable damages makes no difference; an order that the respondents pay money to her would be made as an alternative means of discharging the trust.[31]
[39] We also agree with Woolford J that even if the claim is characterised as restitutionary Irish law must govern it, because the claim concerns immovable property and any enrichment happened in Ireland.[32] Ms Hunter argued that the enrichment happened in New Zealand when Jeanne and Dale denied Pauline’s proprietary claim. We do not agree. Any gain takes the form of an increase in value of Summer Grove itself, and that gain was received by Summergrove Estates in Ireland.
[40] We conclude that Irish law governs the claim.
Personal and subject matter connections to forum
[41] This consideration overwhelmingly favours Ireland. The property is there, and it is there that Pauline and James did the work that founds the constructive trust claim.
Where will any judgment be enforced
[42] The primary relief, the declaration that Summer Grove House is held on constructive trust for Pauline and James, would have to be enforced in Ireland. Pauline would ultimately require an order that the property be transferred by its owner in law to the beneficiaries of the trust. It is common ground between the expert witnesses for both parties that this would require separate proceedings in Ireland. The expert for the respondents, Gavin Ralston SC, has opined that because the equity underpinning the claim (Pauline’s contributions) arose in Ireland and the property is there, Irish courts would hold that jurisdiction is exclusively theirs. In that case an enforcement proceeding would fail.
[43] By contrast, a money judgment obtained in Ireland is readily enough enforced in New Zealand. There is no convention permitting reciprocal enforcement on registration, but a final money judgment of a foreign court of competent jurisdiction is enforceable by action.[33]
[44] As noted, Woolford J found that a trial in Ireland would be cheaper and more convenient because the documents and witnesses are mostly located there. We agree. Evidence will be required as to what work was done on the property, and by whom, and what contributions, direct and indirect, were made by Pauline. Evidence will also be needed as to the source of the funds expended on the property. The respondents say they funded all the work, while Pauline evidently says that income that she and James earned in Ireland was used too. The former source finds its measure in a limited number of well-documented money transfers, but the latter necessitates an investigation into the couple’s financial affairs in Ireland. It appears that they have never accounted for their expenditure on Summer Grove. Valuation evidence will also be needed.
[45] It is also arguable that the measure of Pauline’s interest may reflect negative aspects of the couple’s contributions, notably the behaviour that led to the forced sale of a substantial part of the property. Pauline and James may contest responsibility for this, as between themselves.
[46] In this Court Ms Hunter submitted that evidence will be called about the sale of New Zealand property before Summer Grove was purchased. It is difficult to see how this can bear on the claim pleaded, which concerns contributions made by Pauline afterward. Ms Hunter suggested that the purchase price may have been paid from funds held in trust for James. That seems doubtful; Jeanne and Dale have located the sources of the funds in their personal property and that of Tristram. Even if there is a real issue about this, the preponderance of evidence is clearly to be found in Ireland.
Strength of the plaintiff’s case
[47] Pauline’s case does not appear strong. It may be assumed that she contributed directly or indirectly to the property, but it is also necessary to show that she did so in the expectation of a proprietary interest in it, that such expectation was reasonable, and that the legal owner should be expected to yield.[34] Any inference that she acted in the expectation of an interest in the property must be set against a background in which she and James brought no funds to the purchase, and were financially supported afterward, and borrowed or were given substantial sums for Summer Grove’s restoration, and behaved in a manner which culminated in them being removed as directors of Summergrove Estates and being granted a licence to occupy only. Finally, it is by no means obvious that a claim against Jeanne and Dale could succeed. Counsel appeared to think it enough that they are directors of the two companies involved.
Are there special reasons not to stay this proceeding?
[48] Having confirmed that Woolford J was correct to find that Ireland is the natural forum, we turn to inquire whether, having regard to all the circumstances of the case, Pauline can point to special circumstances requiring that she be permitted to proceed in New Zealand.
[49] It is not suggested that Pauline will be denied substantive justice in Ireland. Irish courts recognise claims of this kind (although terminology may differ), and there is no evidence that she will experience delay or any other institutional barrier to justice.
[50] The only consideration raised under this head is Pauline’s impecuniosity. We accept that on the face of it she is unable to fund litigation, either here or in Ireland. We were told that she has been able to find the security for costs required for this appeal ($5,880) but counsel appeared pro bono. There is no suggestion that she is entitled to legal aid in either jurisdiction.
[51] This consideration does favour New Zealand if present counsel would go so far as to conduct a trial without fee, or on a contingency footing, but we do not know whether that is so and in any event this consideration is by no means dispositive. It must be offset against the increased costs, in the form of both legal fees and out of pocket expenses, that will result if the proceeding is heard here. All of the other considerations we have discussed favour Ireland, notably the risk and expense of enforcing a New Zealand judgment against the land. On balance, we have no doubt that Ireland is the appropriate forum for this proceeding.
[52] The appeal is dismissed. Ms Hunter argued that costs should lie where they fall because the case has wider significance, but we see no reason to depart from the usual rule. The appellant must pay the second and third respondents one set of costs on a band A basis as for a standard appeal together with usual disbursements.
Solicitors:
Kendall Sturm
& Foote, Auckland for Appellant
Palmer Theron, Papakura for
Respondents
[1] Schumacher v Summergrove Estates Ltd [2013] NZHC 1387 [High Court review decision].
[2] This observation was made by the Associate Judge, relying on a letter from an Irish advisor to James Speedy; see Schumacher v Summergrove Estates Ltd [2012] NZHC 3177 [Associate Judge decision] at [11].
[3] Although an attempt appears to have been made to effect service under r 6.13 of the High Court Rules.
[4] High Court Rules, r 5.49. The r 5.49 procedure may have been employed because it was originally unclear whether service was effected in New Zealand. The defendants having been properly served here, the appropriate course was an application under r 6.29(3), under which the onus is on the defendant to show that New Zealand is forum non conveniens.
[5] Associate Judge decision, above n 2, at [20].
[6] British South Africa Co v Companhia de Mocambique [1893] AC 602 (HL).
[7] At [23]–[24].
[8] At [29]–[34].
[9] It is not now in dispute that the in personam exception to the rule applies. For this reason it is not necessary to examine the status of the Mocambique rule in New Zealand law, but we draw attention to David Goddard QC and Campbell McLachlan QC “Private International Law – Litigating in the Trans Tasman Context and Beyond” (seminar presented to the New Zealand Law Society, August 2012) at 156–158.
[10] Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754 at [45] and Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL) at 478.
[11] High Court review decision, above n 1, at [32].
[12] At [36]–[37].
[13] Schumacher v Summergrove Estates Ltd [2013] NZHC 2221.
[14] Spiliada, above n 10, at 476.
[15] Exportrade Corp v Irie Blue NZ Ltd [2013] NZCA 675, (2013) 21 PRNZ 680 at [39]; See also Spiliada, above n 10, at 465 per Lord Templeman and at 484–486 per Lord Goff.
[16] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[32].
[17] For a recent example in which this Court asserted jurisdiction on the ground that the immovable property in issue is situated here, see Americhip Inc v Dean [2014] NZCA 380.
[18] Macmillan Inc v Bishopsgate Investment Trust Plc [1996] 1 WLR 387 (CA) at 391–392.
[19] Regulation 864/2007 on the law applicable to non-contractual obligations [2007] OJ L199/40 [Rome II Regulation], art 10.
[20] American Law Institute Restatement of the Law of Conflict of Laws (2nd ed, St Paul, Minnesota, 1971) § 221.
[21] At 392 citing Lawrence Collins (ed) Dicey and Morris on the Conflict of Laws (12th ed, Sweet & Maxwell, London, 1993) [Dicey (12th ed)] at 47.
[22] At 407.
[23] At 407.
[24] At 407.
[25] Re Hoyles [1911] 1 Ch 179 (CA).
[26] Jonathan Harris “The Trust in Private International Law” in James Fawcett (ed) Reform and Development of Private International Law: Essays in Honour of Sir Peter North (OUP, 2002) 187 [Harris (2002)] at 212–213.
[27] Adeline Chong “The Common Law Choice of Law Rules for Resulting and Constructive Trusts” (2005) 54(4) ICLQ 854 at 861. See also Harris (2002), above n 26; Jonathan Harris “Constructive trusts and private international law: determining the applicable law” (2012) 18(10) Trusts & Trustees 965; Robert Stevens “The Choice of Law Rules of Restitutionary Obligations” in Francis Rose (ed) Restitution and the Conflict of Laws (Mansfield Press, Oxford, 1985) 180 at 215.
[28] Chong, above n 27, at 91; Harris (2002), above n 26, at 212; Lawrence Collins (ed) Dicey, Morris and Collins on Conflict of Laws (15th ed, Sweet & Maxwell, London, 2006) [Dicey (15th ed)] at [29-077].
[29] Dicey (15th ed), above n 28, at [23–051] citing Lord Esher in Companhia de Mocambique v British South Africa Co [1892] 2 QB 358 (CA) at 404–405.
[30] Chong, above n 27, at 108 (footnotes omitted).
[31] Lankow v Rose [1995] 1 NZLR 277 (CA) at 294.
[32] Dicey (12th ed), above n 21, at 1471; Dicey (15th ed), above n 28, at [36–049].
[33] Reeves v One World Challenge LLC [2005] NZCA 314; [2006] 2 NZLR 184 (CA) at [36]–[37].
[34] Lankow v Rose, above n 31, at 294.
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