View source for Nudd v Taylor

{{Short description|Australian court case}}
{{Use Australian English|date=May 2018}}
{{Use dmy dates|date=May 2018}}
{{Infobox court case
| name=Nudd v Taylor
| court=[[Supreme Court of Queensland]]
| date decided=30 August 2000
| full name=Nudd v Taylor
| citations=[http://archive.sclqld.org.au/qjudgment/2000/QSC00-344.pdf <nowiki>[2000]</nowiki> QSC 344]
| judges=[[Catherine Holmes|Holmes J]]
| prior actions=
| subsequent actions=
| opinions=
}}

'''''Nudd v Taylor''''',<ref name="Nudd v Taylor">''Nudd v Taylor'' [http://archive.sclqld.org.au/qjudgment/2000/QSC00-489.pdf <nowiki>[2000]</nowiki> QSC 489] (30 August 2000) [[Supreme Court of Queensland|Supreme Court]] (Qld, Australia).</ref> was a [[court]] [[legal case|case]], decided in the [[Supreme Court of Queensland]] on 30 August 2000. The case concerned [[Conflict of laws|Australian Private International Law]], specifically giving a [[Queensland]] authority to the application of the [[Mozambique rule|Moçambique rule]].<ref name="Nudd v Taylor"/>

==Facts== <!-- NEED SUMMARIZING -->
{{blockquote|[1] The plaintiff and defendant in this matter lived in a de facto relationship for a number of years. The plaintiff has sought declarations of constructive trust in respect of a number of properties in Queensland, as well as a sum of money which is said to have been a loan to the defendant. The defendant has brought a counterclaim in which she seeks a declaration that she is entitled to a proportion of the proceeds of sale of property situated in California, as well as an accounting in relation to other monies, and damages.

[2] In response the plaintiff has filed a conditional notice of intention to defend, disputing the court's jurisdiction to entertain the counterclaim. By the present application he sought a declaration under Rule 16 of the Uniform Civil Procedures Rules to the effect that there is no jurisdiction in the court to deal with the causes of action pleaded in the counterclaim. Upon the hearing of the application, however, the plaintiff's counsel, Mr Taylor, confined his submissions to the claim in respect of the proceeds of sale of the Californian properties, and couched the relief sought in terms of striking out of the relevant paragraphs, rather than seeking a declaration.

[3] For the purposes of the present application, the following was common ground. The parties lived together for some seventeen years in the course of the 1980s and 1990s. A number of properties were purchased in Queensland in the name of the defendant. In 1987 they moved to the United States. From 1992 properties were acquired in California. Each of them has been sold. The plaintiff continues to reside in California, while the defendant is resident in New Zealand.<ref name="Nudd v Taylor"/>}}

==Judgement== <!-- Could be summarised a little -->
[[Catherine Holmes|Holmes J]] in determining whether there could be an exception to the ''Moçambique'' rule applied in regard to the counterclaim, stated:
{{blockquote|[15] In the present case, the defendant's claim to a share of the proceeds of sale of the properties in California depends entirely on her ability to demonstrate a beneficial interest in the properties. The outcome of her counterclaim must depend on how that question is determined. Her claim is, in my view, properly described as one which essentially concerns her right to an interest in the properties as the gravamen of her claim. Accordingly, it becomes necessary to consider whether the second exception applies. Clearly enough, the claim involves the assertion of an equitable obligation of a kind which courts have been prepared to enforce notwithstanding a connection with foreign immovables; but what of the situation when the party against whom the obligation is asserted is not within the jurisdiction? <ref name="Nudd v Taylor"/>}}

Holmes J in determining that a foreign litigant had submitted himself to this jurisdiction stated:
{{blockquote|[21] It is too broad a statement to say that a foreign plaintiff who proceeds in Queensland thereby submits himself to the court's jurisdiction at large. The position, is, in my respect view, correctly stated by Holland J in ''National Commercial Bank v Wimborne'':<ref>''National Commercial Bank v Wimborne'' (1979) 11 [[NSW Law Reports|NSWLR]] 156 (31 December 1979), [[New South Wales Supreme Court|Supreme Court]] (NSW, Australia).</ref>
{{cquote|a foreign plaintiff, not otherwise subject to the jurisdiction of the court, who brings an action in the Court submits himself by {{sic|ecessary}} implication to every matter of counter-claim that would operate as a defence to his action or that would as a set off or cross claim arising out of the same subject matter reduce or extinguish the plaintiffs' claim; and also, at least if he is not a foreign Sovereign, to a counterclaim founded on or directly arising out of the same subject matter as the plaintiffs' claim that would require to be tried in order to do justice between the parties in relation to that subject matter even if it might result in a judgment against the plaintiff on the counterclaim.
His Honour continued,

To what has the plaintiff submitted? The answer to that lies, I think, in a consideration of what the plaintiff has brought to the Court for adjudication. He could not, in my opinion, properly be said to have submitted to claims outside of and independent of the subject matter of his own action.<ref>''National Commercial Bank v Wimborne'' (1979) 11 [[NSW Law Reports|NSWLR]] 156 at 174.</ref>}}}}

That case was cited with approval by the New South Wales Court of Appeal in ''Marlborough Harbour Board v Charter Travel Co Ltd''.<ref>''Marlborough Harbour Board v Charter Travel Co Ltd'' (1989) 18 [[NSW Law Reports|NSWLR]] 223 (1 January 1989), [[New South Wales Court of Appeal|Court of Appeal]] (NSW, Australia).</ref> In the latter case, the court was prepared to go somewhat further, deciding that the foreign plaintiff's submission to the jurisdiction extended to a counterclaim which raised a new cause of action, provided that such a cross-claim was founded on or directly arose out of the same subject matter as that of the action.

To similar effect, the English Court of Appeal in ''Republic of Liberia v Gulf Oceanic Inc''<ref>''Republic of Liberia v Gulf Oceanic'' (1985) 1 Lloyds Rep 539.</ref> concluded that a plaintiff submitted himself to the incidents of his litigation, including liability to a counterclaim properly brought. In that case the plaintiffs had sought a declaration in relation to a contract for the purchase of oil and a resulting arbitration. The defendant's counterclaim for damages for breach of the same contract and tort for wrongful procuring of the breach was permitted to stand, notwithstanding that the foreign defendants could not, in the absence of their own litigation, have been made amenable to the jurisdiction of the court on such an action.

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==Judicial Consideration==
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==See also==

===Cases Referring to this Case===
* ''AFS Freight Management Pty Ltd v Ziegler Nederland BV''.<ref>''AFS Freight Management Pty Ltd v Ziegler Nederland BV'' [http://archive.sclqld.org.au/qjudgment/2000/QSC00-489.pdf <nowiki>[2000]</nowiki> QSC 489] (22 December 2000) [[Supreme Court of Queensland|Supreme Court]] (Qld, Australia).</ref> <sup>(<span style="color:green;">Applied</span>)</sup>

===Cases Considered by this Case===
;Australia
* ''[[Potter v Broken Hill Proprietary Company Ltd]]''.<ref name="Potter">{{cite AustLII|HCA|88|1906|litigants=[[Potter v Broken Hill Pty Co Ltd]] |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1906/88.pdf (1906)&nbsp;3&nbsp;CLR&nbsp;479] |date=20 March 1906 |courtname=auto}}</ref> <sup>(<span style="color:green;">Cited</span>)</sup>
;United Kingdom
* [[Mozambique rule|''British South Africa Co v Companhia de Moçambique'']].<ref name="Mozambique">''[[British South Africa Co v Companhia de Moçambique]]'' [1893] {{abbr|AC|Appeal Cases}} 602, [[Judicial functions of the House of Lords|House of Lords]], (England and Wales).</ref> <sup>(Considered)</sup>

== References ==
{{Reflist|30em}}

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