Federal Court of Australia

Miller as executor of the estate of Detlef John Kirsten v Kirsten [2021] FCA 1022

ORDERS

THE COURT ORDERS THAT:

1.    The defendants’ Interlocutory application dated 28 January 2021 be dismissed.

2.    The defendants pay the plaintiff’s costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an Interlocutory application by the defendants in a proceeding in this Court seeking a stay of the proceeding or an order under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act) transferring the proceeding to the Supreme Court of South Australia.

2    The plaintiff in the substantive proceeding is Ms Cara Ellen Miller and she brings the proceeding in her capacity as the executor of the estate of the late Detlef John Kirsten. The deceased died on 2 November 2018. The deceased made a Will on 27 June 2016 and in that Will he appointed his wife, the plaintiff, as the executor and trustee of his Will. The plaintiff was granted probate of the deceased’s Last Will and Testament by the Supreme Court on 14 June 2019.

3    The first defendant is Mr Karl Kirsten and he is the deceased’s brother. The deceased nominated him in the Will as the replacement executor and trustee of the Will in the event that the plaintiff did not survive the deceased or was unable or unwilling to act as executor and trustee.

4    The second to sixth defendants are companies: Amuze Pty Ltd, Global Digital Media Pty Ltd, Lion Publishing Pty Ltd, Ombrel Pty Ltd (Ombrel) and Portel Software Pty Ltd. The first defendant is the sole director of each of these companies.

5    The evidence adduced by the plaintiff is to the effect that at his death, the deceased was a registered shareholder of each of the companies as follows:

6    The records of the Australian Securities and Investments Commission show the deceased as the registered holder of the shares.

7    The plaintiff asserts that as executor of the deceased’s Will, she is entitled to be registered as the holder of the shares. Her case is that she has tendered the necessary documents to Mr Karl Kirsten as the sole director of each company, but he has refused or failed to take the necessary steps to effect the registration of the shares in her name.

8    The relief sought by the plaintiff in this proceeding is an order under s 1071F(2) of the Corporations Act 2001 (Cth), that the share transfers or share transmissions for the shares in the different companies be registered. The plaintiff also seeks declaratory relief in relation to the register of members for Ombrel for the reasons explained below.

9    Ombrel stands in a different position from the other companies. It appears from the plaintiff’s evidence that there is a dispute between the plaintiff and the first defendant about the correct register of members for Ombrel and whether it is what the plaintiff calls the “Ombrel Register of Members” (the plaintiff’s case) or the “Kirsten Ombrel Register of Members” (said by the plaintiff to be the first defendant’s case). The difference between the two registers lies in an alleged transaction in July/August 2009 recorded in the Kirsten Ombrel Register of Members and involving an alleged transfer of the 99 Ombrel shares from the deceased to Ombrel in its capacity as trustee of the Ombrel Trust. The plaintiff’s case is that the Kirsten Ombrel Register of Members is not correct and she expresses the belief in her evidence that the first defendant had a motive to alter the Ombrel Register of Members. She gives evidence as follows:

I believe that [Mr Karl] Kirsten has a motive to delay and frustrate my registration as the holder of the 99 Ombrel Shares and to delay and frustrate my getting control of Ombrel. I believe his motive is to retain control of Ombrel as its sole director. I believe that he had a motive to alter the original Ombrel Register of Members when it was in his possession to add the entry recording the purported transfer of the 99 Ombrel Shares by the Deceased to Ombrel on 30 July 2009 and to create the register of members for Ombrel recording that supposed transfer so as to create the Kirsten Ombrel Register of Members …

10    The plaintiff asserts in other proceedings in the Supreme Court (described generally below) that the deceased held shares in Sound Diagnostics Pty Ltd (trading as Sound Radiology) (Sound Diagnostics) on trust and the possible beneficiaries of that trust include Ombrel and a company called Kirsten-Miller Investments Pty Ltd. Ombrel acts as trustee of the Ombrel Trust. The undated deed of the Ombrel Trust provides that the deceased’s father, Mr Ernst Kirsten, and the first defendant are income beneficiaries of the trust (Schedule 2) and corpus beneficiaries of the trust (Schedule 3).

11    It is necessary to say something about the other legal proceedings involving the parties (and others) claiming an interest in the estate of the deceased. The starting point is the Will of the deceased.

12    The deceased recorded the fact in clauses 8(a) and (j) of his Will that his assets included 100% of the shares in Sound Diagnostics and a 100% shareholding in “Amuze Pty Ltd, Lion Publishing Pty Ltd, Portel Software Pty Ltd, Kirsten-Miller Investments Pty Ltd which acts as trustee for the Kirsten-Miller Investment Trust, and Ombrel Pty Ltd which acts as trustee for the Ombrel Trust, which controls the shares mentioned above”.

13    Clause 11 of the Will is in the following terms:

I GIVE forty percent (40%) of my shareholding in Sound Diagnostics Pty Ltd to Ernst Detlef Kirsten of [address]. This gift nullifies the oral agreement between myself and Ernst Detlef Kirsten that he shall receive 40% profit share from Sound Diagnostics Pty Ltd, as the 40% of shareholding is intended to replace this agreement. Should it be deemed that the oral 40% profit share agreement still applies, then this clause 11 of my Last Will and testament shall no longer apply, and if needed the 40% shareholding referred to in this clause shall revert to my estate.

14    In clause 12 of the Will, the deceased gives the rest of his estate to his trustee upon trust to establish a “Beneficiary Testamentary Trust” for his children, Joshua Augustus Kirsten and Jonty Michael Kirsten.

15    I turn now to briefly summarise the five proceedings in the Supreme Court involving some of the parties to this dispute. The summary is taken from the defendants’ written outline of submissions which I did not understand to be in dispute as a broad and general summary, at least for the purposes of the determination of this application.

16    The defendants submit that the ownership and control of Sound Diagnostics has been perceived by the various members of the family as being very valuable. It has been the subject matter of various steps and counter-steps by them in accordance with rights at general law or under the Corporations Act and the proceedings in the Supreme Court, including a proceeding in the Court of Appeal.

17    On 8 November 2019, the plaintiff purported to transfer the shares in Sound Diagnostics from the deceased to herself as trustee of the Beneficiary Testamentary Trust. On 27 March 2020, a company under the control of Mr Ernst Kirsten, Kirsten-Parsch Pty Ltd, appointed itself as managing controller of the property of Sound Diagnostics pursuant to a security agreement. On 2 April 2020, the plaintiff caused Sound Diagnostics to commence proceedings SCCIV-2020-415 (the first proceeding) against Mr Ernst Kirsten and three companies under his control in which Sound Diagnostics sought to restrain the controller from taking any action in relation to its property.

18    On 25 May 2020, the plaintiff resolved to appoint administrators to Sound Diagnostics and those administrators subsequently commenced proceedings CIV-20-000760 (the second proceeding) in which they sought orders for the sale of the shares in Sound Diagnostics.

19    On 17 June 2020, Mr Ernst Kirsten commenced proceedings CIV-20-000817 (the third proceeding) against the plaintiff in which he alleged that, in light of the terms of clause 11 of the Will, the transfer by the plaintiff of the shares in Sound Diagnostics for the benefit of the residual beneficiary, namely herself as trustee of the Beneficiary Testamentary Trust, constituted a breach of trust and devastavit. Those proceedings sought orders setting aside the transfer and/or damages against the plaintiff. This proceeding was referred to in submissions as the main proceeding and I will refer to it in this way.

20    On 18 August 2020, a deed of company arrangement was executed in relation to Sound Diagnostics. On 28 August 2020, the administrators sold the shares in Sound Diagnostics to a third party.

21    The first defendant asserts that the plaintiff in this proceeding and the defendant in the main proceeding, did not file a Defence to the claim in the main proceeding within the time permitted under the Uniform Civil Rules 2020 (SA).

22    On 18 September 2020, the plaintiff filed a further proceeding pursuant to s 69 of the Administration and Probate Act 1919 (SA) for judicial advice being proceedings PROB-20-005460 (the fourth proceeding). Those proceedings were not served on Mr Ernst Kirsten as a beneficiary under clause 11 of the Will or Mr Karl Kirsten as the replacement executor. They proceeded ex parte. On 13 October 2020, the Court (Stanley J) made certain orders in those proceedings.

23    On 28 October 2020, the plaintiff filed a Defence and cross-claim in the main proceeding. She denied, on the proper construction of the Will, any breach of trust or devastavit. As I have said, she alleged that the deceased was not the beneficial owner of the shares in Sound Diagnostics. She alleged (among other allegations) that the deceased owned them as trustee for Ombrel as trustee of the Ombrel Trust. The cross-claim sought declaratory relief against Ombrel.

24    On 9 December 2020, Mr Ernst Kirsten filed an appeal against the orders made by the Court in the fourth proceeding (the fifth proceeding). The application for leave to appeal was referred to the Court of Appeal to be heard at the same time as the appeal.

25    On 15 December 2020, the plaintiff instituted these proceedings.

26    Pursuant to the deed of company arrangement, the balance of the funds available in the Deed Fund arising from the sale of the shares in Sound Diagnostics were payable to “the owners of the Shares as at the date of this document”.

27    On 10 February 2021, and pursuant to an order made by the Court (Lovell J), the administrators paid the balance ($3,552,345.03) into the Supreme Court Suitors’ Fund in respect of the main proceeding.

28    The defendants assert that the plaintiff’s claim in this proceeding to be registered as the shareholder of the defendant companies arises solely from her position of executor of the deceased’s estate pursuant to the grant of probate.

29    In the main proceeding, Mr Ernst Kirsten has stated on numerous occasions that he proposes to seek an order that the grant of probate to the plaintiff be revoked. The basis for such revocation is said to be the plaintiff’s conflict of interest and duty between her role as executor, her role as trustee of the Beneficiary Testamentary Trust, and her personal interest. It is said that this conflict “crystallised” on or by her transfer of the shares in Sound Diagnostics to herself as trustee of the Beneficiary Testamentary Trust. It is also to be seen, so the defendants contended, in the plaintiff bringing the first proceeding and in appointing administrators to Sound Diagnostics. The plaintiff’s counsel contended that these two particular allegations of conflict had not previously been put. The defendants assert that the plaintiff’s conflict arising after the death of the deceased would be a proper basis for the grant of probate to be revoked. However, without notice to Mr Ernst Kirsten or Mr Karl Kirsten, the plaintiff sought and obtained orders under s 69 of the Administration and Probate Act that effectively mean that her conduct in relation to the shares is not a breach of trust. It is likely that this removed part of the basis for any application for revocation.

30    The defendants submit that, in this sense, the application for directions and the foreshadowed application for revocation are mirror applications and both raise the same issues, but seek different outcomes. The defendants submit that a necessary first step to revoke the grant of probate is to have the orders made by Stanley J in the fourth proceeding set aside. While an application for revocation of the grant could still be brought by either Mr Ernst Kirsten or Mr Karl Kirsten, it would face great difficulties in light of the orders made by Stanley J. The answer that the defendants anticipate that the plaintiff will provide is that her conduct has been “sanctioned” by the orders made by the Court in the fourth proceeding.

31    The defendants relied on two affidavits in support of their application, both sworn by a solicitor for the defendants (Dominic Joseph Calabro and Georgia Ann Contala). The defendants argued the stay application first and then their application to transfer the proceeding to the Supreme Court.

32    The plaintiff relied on four affidavits being one that she swore, two sworn by her solicitor (Michael-Antony Hayes) and one sworn by a senior accountant (Natalie Biller). The plaintiff also addressed the issue of whether there should be a stay first.

Stay

33    The Court clearly has the power to stay this proceeding. The power is part of the Court’s power to control its own proceedings: Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd [1992] FCA 72; (1992) 34 FCR 287 at 291 per Lockhart J. It has been said that s 23 of the Federal Court of Australia Act 1976 (Cth), which provides that the Court has the power in relation to matters in which it has jurisdiction to make orders of such kinds as the Court thinks appropriate, is declaratory of the Court’s power: Groves v Federal Commissioner of Taxation [2011] FCA 222; (2011) 82 ATR 813 at [22] per Logan J. I do not need to decide whether the power referred to by the defendants, that is, the power in r 1.32 of the Federal Court Rules 2011 (Cth) includes the power to grant a stay.

34    The circumstances in which a stay may be ordered are not capable of exhaustive exposition. That follows from the nature of the power itself. There are well-recognised categories where a stay may be granted such as parallel criminal proceedings, or possible criminal proceedings, prior proceedings giving rise to pleas of res judicata, issue estoppel or Anshun estoppel, and parallel proceedings which will effectively dispose of the proceeding sought to be stayed. This case does not fall within any of those categories.

35    The basis upon which the defendants put their application for a stay was that there should be only one determination in relation to a set of facts in dispute (including possibly some related facts) and judicial comity. As I understood the defendants’ argument, it was that if they had issued an application for the revocation of probate in the Supreme Court, and that court was about to deal with it, a stay of this proceeding could hardly be resisted having regard to the desirability of determining disputed facts only once and considerations of judicial comity. The defendants’ submission is that the facts in this case are not sufficiently different to suggest a different result. As I understood the defendants’ submission, the application to transfer the proceeding was secondary to their application for a stay. If a stay is granted, it would be convenient to transfer the proceeding so that eventually all matters could be dealt with by the one court at the same time.

36    The grounds in terms of the facts put forward by the defendants are as follows.

37    Mr Ernst Kirsten has stated on numerous occasions in the main proceeding that the grant of probate to the plaintiff should be revoked because she has a conflict of interest as the executor of the Will and trustee of the Beneficiary Testamentary Trust which crystallised when she arranged for the transfer of the shares in Sound Diagnostics to herself as trustee of the Beneficiary Testamentary Trust. Mr Ernst Kirsten asserts that this would be a proper basis for the revocation of the grant of probate. However, he and Mr Karl Kirsten consider that the orders made by the Court in the fourth proceeding, which are the subject of the application for leave to appeal and an appeal (in the event that leave is granted) in the fifth proceeding, absolve the plaintiff from any action for what might otherwise be a breach of trust. In their written submissions, the defendants said of the orders made in the fourth proceeding:

This most likely removed part of the basis for any application for revocation.

…

While an application for revocation of a grant could still be brought by either Ernst and Karl, it would face great difficulties in light of the orders made by Justice Stanley: the instant answer to the claim of conflict would be that the plaintiff’s conduct has been sanctioned by the Orders of Stanley J made on 13 October 2000 [sic 2020].

38    Whether the orders made in the fourth proceeding have that effect is not a matter I need address. The fact is that the defendants presented their application on this basis and, as the plaintiff said in her written submissions, the orders “had the effect (as the Defendant concedes) of removing the actual conflict that was said to be the basis of the mooted application to revoke the grant”.

39    The defendants’ submission is that the plaintiff’s title to bring this proceeding is as the executor of the deceased’s estate and that that title may be successfully impeached at some point in the future. However, I note for that to occur, the following would have to occur: (1) Mr Ernst Kirsten’s application for leave to appeal and the appeal succeed and the relevant orders made in the fourth proceeding be set aside; (2) on the rehearing of the plaintiff’s application, no orders absolving the plaintiff in relation to any alleged conflict be made; (3) Mr Ernst Kirsten or Mr Karl Kirsten then give effect to what is said to be their present intention of bringing proceedings to revoke the grant of probate. Presumably, Mr Karl Kirsten would seek an order granting probate to him as he is the replacement executor and trustee nominated in the Will (clause 3); and (4) such action by Mr Ernst Kirsten or Mr Karl Kirsten, or both, be successful.

40    If these events occurred, the plaintiff would not have title to bring these proceedings nor would she have a duty to bring these proceedings. Mr Karl Kirsten or another replacement executor would have title to bring these proceedings.

41    This case is a long way from a case where the Supreme Court is about to rule on an application to revoke probate. As I have said, there are a number of contingencies and possibly a very substantial period before the final result is known.

42    Insofar as there might be a secondary argument by the defendants that an application for revocation of probate is not dependent on these contingencies, a difficulty for the defendants of a different type arises. The first defendant and Mr Ernst Kirsten have had ample opportunity to bring an application to revoke the grant of probate to the plaintiff and have not, despite assertions by Mr Ernst Kirsten that such an application would be brought, done so.

43    The defendants also submitted that it is relevant to both their application for a stay and for a transfer that the plaintiff’s evidence in this proceeding raises serious allegations of fraud against Mr Karl Kirsten in relation to Ombrel’s register of members. That is correct, but at the same time, the defendants’ counsel acknowledged that this might be an ancillary issue in this proceeding because it is possible that the proceeding could be decided without having to decide the allegations of fraud. This leads to a more general point about the merits. It is not clear to me that the defendants have a defence, at least in terms of the bulk of the orders sought by the plaintiff, in this proceeding.

44    As against these speculative matters, there is the fact that the plaintiff as the executor of the deceased’s estate has a duty to get in the assets of the estate and it does not appear to be in dispute that those assets include at least one Ombrel share and a share or shares in the other four companies. As I have said, a replacement executor would have precisely the same duty.

45    There does not appear to be any reason why there should be any impediment to the plaintiff performing her duty, or at least having an opportunity to do so, by way of the pursuit of legal proceedings.

46    Further, it is significant that the defendants do not identify in their written submissions any specific detriment to them if the plaintiff is able to pursue her duties as executor in relation to the shares which are the subject of these proceedings. In oral submissions, counsel for the defendants said that there was an apprehension that the plaintiff will deal with the shares in some way prejudicial to the defendants’ interests while other legal proceedings are pending. The difficulty with that submission was clearly articulated by the plaintiff. Rather than seek a stay, the defendants should be required to seek an injunction (quia timet or otherwise) against the plaintiff if there are grounds to do so and to meet the requirements associated with such an application, including the provision of an undertaking as to damages.

47    In my opinion, the defendants’ application for a stay of this proceeding should be rejected.

The Cross-Vesting Application

48    Section 5(4) of the Cross-Vesting Act is in the following terms:

5    Transfer of proceedings

…

(4)    Where:

(a)    a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court … (in this subsection referred to as the first court); and

    (b)    it appears to the first court that:

(i)    the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

     (ii)    having regard to:

(A)    whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

(B)    whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and

(C)    the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-paragraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

      (D)    the interests of justice;

it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii)    it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory;

the first court shall transfer the relevant proceeding to that Supreme Court.

49    The defendants submitted that a transfer order should be made under either s 5(4)(a) and (b)(i) or s 5(4)(a) and (b)(iii) of the Cross-Vesting Act.

50    With respect to the argument relying on s 5(4)(a) and (b)(i), the defendants referred to Amalia Investments Ltd v Virgtel Global Networks N.V. (No 2) [2011] FCA 1270; (2011) 198 FCR 248. In that case, Greenwood J said that the prime consideration in applying s 5(4)(a) and (b) is how might the interests of justice best be served. His Honour said that in determining the application of the section, there is no presumption in favour of or against any party and no party carries any onus. The application of the section involves a balancing of the relevant factors rather than the discharge of an onus of proof. His Honour went on to say that a relevant proceeding arises out of another proceeding if there is some causal element between the two, even if the causal element is not “direct or proximate”. A pending proceeding relates to another proceeding if the two are associated or connected or where “a substantial and common question” arises in both proceedings or where the “facts and circumstances in the two proceedings … appear to be intertwined”. His Honour also cited with approval a case in which the requirements of relationship were satisfied where two proceedings were found to be related on the footing of the “essential commonality of facts and parties”.

51    The defendants also relied on the following observations of McKerracher J in Federal Commissioner of Taxation v Residence Riverside Pty Ltd as Trustee for the D&J Discretionary Trust and as Trustee for the D&J Investment Trust [2013] FCA 720; (2013) 95 ATR 86 at [17]:

In my view, ordinarily where cross-vesting transfer occurs, the factors in support of it would be obvious and a conclusion that the value judgment or decision about whether it is in the interests of justice for the proceeding to be dealt with in another court will be readily instinctive taking into account a variety of matters including:

•    the stage of the proceedings in the respective courts;

•    the commonality or diversity of the parties;

•    the nature of the proceedings;

•    the commonality or diversity of the issues;

•    the risk of conflicting findings of fact or conflicting orders;

•    a cost benefit analysis;

•    the potential unnecessary drain on judicial and other public and private resources; and

•    whether there is any particular judicial expertise residing in one court or the other.

(See also Macks v Edge [2006] FCA 1077; (2006) 156 FCR 302 at [42].)

52    Both parties referred to BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 at 421–422 (BHP Billiton) in support of their respective arguments. In that case, Gleeson CJ, McHugh and Heydon JJ said that an application for transfer under s 5 of the Cross-Vesting Act is brought upon the hypothesis that the jurisdiction of the court in which the application is made has been regularly invoked and that if it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court “shall transfer” the proceedings to that court. Their Honours noted that there is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a “clearly inappropriate” forum and it is both necessary and sufficient that, in the interests of justice, the second court is more appropriate (at [14]). Gummow J made a similar point about the effect of the reference in the section to “shall transfer” (at [63]).

53    Chief Justice Gleeson, McHugh and Heydon JJ also said that the interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. The justice referred to in s 5 is “not disembodied, or divorced from practical reality” (at [15]). The capacity of, in that case the Dust Diseases Tribunal, to deal with the matter expeditiously had always been regarded as relevant to the interests of justice, bearing in mind the condition of many sufferers from dust diseases.

54    By reason of s 5(7) of the Cross-Vesting Act, an order for transfer may be made not only on the application of a party to the proceeding, but also by the Court either of its own motion or on the application of the Attorney-General of the Commonwealth or of a State. Gummow J in BHP Billiton considered that the presence of this subsection meant that it was inapt to speak of the applicant for an order for transfer as bearing a burden of persuasion analogous to an onus of proof. On the other hand, it would be inaccurate to describe the decision upon a transfer application as administrative, by some analogy to the orders made with no lis inter partes in the administration of assets or trusts by courts of equity (at [71]). Gummow J also made the point that the phrase “otherwise in the interests of justice” in s 5(4)(b)(iii) requires the Court to determine a transfer application by identifying the more appropriate forum without any specific emphasis in favour of the choice of forum made by the plaintiff (at [77]).

55    As I have said, the defendants argued their stay application first and neither party made extensive submissions about the relationship between the application for a stay and the application for a transfer. It is possible to look at that relationship in different ways. For example, if there is a clear case for transfer, it might be appropriate to leave the question of whether there should be a stay to the transferee court. On the other hand, if the stay application was dealt with first, the reasons that are decisive on that application may also be decisive on the transfer application. I do not need to consider these issues any further because the defendants put three quite specific arguments in favour of their transfer application, all of which I reject.

56    First, the defendants argued that if this proceeding continues, the first defendant “will need” to file a cross-claim in this proceeding seeking revocation of the grant of probate irrespective of whether or not the appeal to the Court of Appeal is allowed. The defendants went on to submit that, assuming this Court would have jurisdiction over such a cross-claim, nevertheless, as a matter of comity it would not be appropriate for this Court to make orders revoking an order of another court.

57    Neither party asked me on this application to resolve questions of jurisdiction or this Court’s power to make orders affecting the orders made by another superior court (see Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at [44]–[57] per Bell, Gageler, Keane, Nettle and Gordon JJ). It seems to me that this first matter is not a reason to transfer the proceeding. If a cross-claim for revocation is brought in this proceeding, then all relevant issues can be debated at that time.

58    Secondly, the defendants argued that in these proceedings, the plaintiff makes serious allegations against the first defendant concerning the Ombrel Register of Members/Kirsten Ombrel Register of Members. The first defendant is the replacement executor under the Will. The defendants assert that those factual allegations and the fact that they are made by the plaintiff will be relevant to the issue of the fitness of the first defendant to be appointed as the replacement executor or, indeed, the fitness of the plaintiff remaining as executor. There are two answers to this argument. First, the serious allegations made against the first defendant may end up being an ancillary issue in this proceeding as the defendants concede. Secondly, in any event, for reasons already given in relation to the stay application, the relevance of the first defendant’s fitness to be an executor is remote, both in time and in likelihood.

59    Thirdly, the defendants argued that the primary issue raised in the main proceeding is the testamentary intention of the deceased with respect to clause 11 of the Will. Mr Ernst Kirsten contends that on the proper construction of clause 11 of the Will, either in its present form or as rectified by an order made under s 25AA of the Wills Act 1936 (SA), the intention of the deceased was to gift 40% of the shares in Sound Diagnostics to him, irrespective of whether the property was owned by him, and that the executor of the estate is empowered to do that. The defendants contend that this will, in turn, raise questions as to the intention of the deceased in respect of the ownership of the various shares in question here, which is an issue in these proceedings. The claimed overlap was not developed in submissions by the defendants and it is not apparent to me that there is such an overlap. To the extent that a claimed overlap exists, it does not, in my view, justify an order for transfer.

Conclusion

60    For these reasons, the defendants’ application must be dismissed with costs.

Associate:    

Dated:    27 August 2021

SCHEDULE OF PARTIES