ANZ Bank New Zealand Limited v Cutfield
[2014] FCA 1214
•4 November 2014
FEDERAL COURT OF AUSTRALIA
ANZ Bank New Zealand Limited v Cutfield [2014] FCA 1214
Citation: ANZ Bank New Zealand Limited v Cutfield [2014] FCA 1214 Parties: ANZ BANK NEW ZEALAND LIMITED v BRIAN MURRAY CUTFIELD File number: QUD 568 of 2014 Judge: LOGAN J Date of judgment: 4 November 2014 Catchwords: PRACTICE AND PROCEDURE - application for extension of time to give notice to every person liable under the judgment registered under Trans-Tasman Proceedings Act 2010 (Cth) – relevant considerations – requirements of certification of registration where registration in Australian currency equivalent requested Legislation: Trans-Tasman Proceedings Act 2010 (Cth) ss 67, 68, 69, 73, 74 Date of hearing: 4 November 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Solicitor for the Applicant: Minter Ellison Solicitor for the Respondent: Heard ex parte
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 568 of 2014
BETWEEN: ANZ BANK NEW ZEALAND LIMITED
ApplicantAND: BRIAN MURRAY CUTFIELD
Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
4 NOVEMBER 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The Registrar forthwith issue to the solicitors for the Applicant an Amended Certificate of Registration of Judgment under the Trans-Tasman Proceedings Act 2010 (Cth) recording that:
‘On 17 September 2014 the attached judgment of the High Court of New Zealand was registered in the Federal Court of Australia pursuant to section 68 of the Trans-Tasman Proceedings Act 2010 (Cth) and the judgment has been registered for the equivalent amount in Australian currency, namely, AUD $1,158,691.05.’
2.The period within which notice of registration under section 73 of the Trans-Tasman Proceedings Act 2010 (Cth) must be given is extended to within 15 working days of today’s date.
3.A copy of this order accompany the notice given to the liable person.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 568 of 2014
BETWEEN: ANZ BANK NEW ZEALAND LIMITED
ApplicantAND: BRIAN MURRAY CUTFIELD
Respondent
JUDGE:
LOGAN J
DATE:
4 NOVEMBER 2014
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 13 May 2014, the ANZ Bank New Zealand Limited (ANZ) obtained from Lang J in the High Court of New Zealand an order for summary judgment against one Brian Murray Cutfield in the total sum, inclusive of interest and costs, of NZ$1,277,920.30, together with a declaration that interest was to accrue on the judgment sum from the date of judgment until the date of payment at interest rates under specified clauses in particular bank facilities.
On 17 September 2014, ANZ, by its Australian solicitors Minter Ellison, made an application under the Trans-Tasman Proceedings Act 2010 (Cth) (Act) for the registration of that New Zealand judgment under Pt 7 of that Act.
It is a mark of the closeness of relations between Australia and New Zealand and the confidence of the Australian Parliament in the integrity of the judicial system of New Zealand that a ready regime for the enforcement upon registration of particular New Zealand judgments is provided for in the Act. The Act effects a modification of the common law position in respect of a foreign judgment. At common law a foreign judgment would have to be sued upon as a debt.
ANZ’s application for registration was made under s 67(1) of the Act. This Court is, for the purposes of s 67(1), an Australian superior court. The application was made in the form prescribed by reg 17(1) of the Trans-Tasman Proceedings Regulations – form 5. It otherwise met the requirements of the regulations. That being so, the obligation of this Court on an application under s 67 was to register that judgment in accordance with Pt 7 of the Act: see s 68(1).
In seeking registration ANZ applied, as it was entitled, under s 69(1)(b) of the Act for the judgment to be registered as if it were for an equivalent amount in Australian currency. The requisite calculation for which s 69(1)(b) provides was specified in and otherwise accompanied the application for registration.
It is a requirement of s 73 of the Act that, once a New Zealand judgment has been registered in an Australian court, the person entitled to the benefit of the judgment must give notice of the registration to every liable person. In this instance, notice of the registration had to be given by ANZ to Mr Cutfield. Such notice must, by s 73(3), be given within either 15 working days of the Australian court after the day of registration or if, before or after that period, the entitled person applies to the Australian court for a longer period, any longer period the Australian court considers appropriate.
For a variety of reasons which I shall detail, ANZ did not give notice of registration within the 15 working day period specified in s 73(3)(a) of the Act. Accordingly, ANZ has applied for an extension of time within which to give notice.
There are a number of reasons why ANZ did not and indeed could not have given notice within the required time. Those reasons are not entirely of ANZ or its solicitors’ own making.
So far as the researches both of ANZ’s solicitors and my own have taken the matter, there is no particular guidance from earlier authority under the Act in respect of the considerations which are relevant to the granting of an extension of time. In my view, what is required is an acceptable explanation in respect of the reason why notice could not be given within the time prima facie specified in s 73(3)(a) of the Act.
In determining what is acceptable, it is to be remembered that there is a ministerial quality to registration. By that I mean that registration, whilst it confers thereafter rights of enforcement, is not to be assimilated in terms of extensions of time with an extension to amend a pleading or, indeed, to file an originating process. The applicant for registration will already under the law of New Zealand have initiated proceedings and secured a judgment in that country. Further, it is to be remembered in relation to extensions that an application under s 67 for registration may be made within six years after the day on which the judgment was given or within such longer periods as are specified in s 67(5)(c)(ii) and s 67(5)(c)(iii) of the Act.
Here the certificate which issued from the registry is, with all due respect, a curious document. It states:
On 17 September 2014 the attached judgment of the High Court of New Zealand was registered in the Federal Court of Australia pursuant to section 68 of the Trans-Tasman Proceedings Act 2010 (Cth).
There is no reference on the face of the certificate, as in my view there should be, having regard to s 69(1)(b) of the Act, to the Australian currency equivalent amount. Further, though registration is said to have occurred on 17 September, the certificate is dated 30 September 2014. Yet the requirement of s 73 for notice runs not from the date of the certificate but from the date of registration. Were there any doubt about that, that doubt is put to rest by s 74 where, in s 74(2), the expression “day of registration” is used. The certificate did not issue from the registry until, at the earliest, 30 September 2014. That was so, even though, on 18 September 2014, in other words, the day after the lodgement of the application for registration, enquiry was made of the registry by Ms Young, a solicitor in the employ of Minter Ellison. She made a further enquiry on 30 September 2014 of the registry. It would appear that it was that enquiry that prompted the issuing that day of the certificate. That enquiry was one of the tasks which Ms Young must have set herself responsibly prior to her commencing leave on 1 October 2014. Also responsibly, she left particular instructions with her colleagues in relation to the pending receipt of a certificate of registration.
It would appear that the certificate of registration, though dated 30 September 2014, was not received by Minter Ellison until on or around 2 October 2014. The receipt within Minter Ellison of the certificate does not appear initially to have been directed to those colleagues covering for Ms Young during her absence on leave. That is because a number of calls were made in the first half of October to the registry following up the question of certification.
Ms Young returned from leave on 20 October 2014. It was then that it was discovered, doubtless because of the attention which she gave to files under her personal responsibility, that there was a certificate already in Minter Ellison’s possession. By that stage the time prima facie specified for the giving of notice had passed. The application for an extension of time was made promptly after Ms Young returned from leave.
There are then two particular reasons why notice was not given within the prima facie time. There ought to have been an appreciation within the registry of the need for notice to be given within a particular time following registration, not the date of a certificate. That did not occur. On any view then, ANZ was always in a position where the time prima facie specified had been eroded by the practice which the registry chose to adopt of dating registration prior to the date upon which registration was certified.
Notwithstanding responsible professional conduct in respect of a practitioner going on leave, there was also an unfortunate lapse in internal communications within Minter Ellison. That too was a contributing factor.
Even putting these to one side, what issued as a certificate did not, in my view, comply with the requirements of the Act where registration in an Australian currency had been requested.
The case is one where I am satisfied that there is an acceptable explanation, such that an extension of time for the giving of notice should be given. Further, there is a need for the existing certificate to be regularised so that it evidences that registration has been effected in this Court of the New Zealand judgment as if it were for an equivalent amount in Australian currency.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 13 November 2014
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