Bank of New Zealand v Evans - [2016] WASC 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BANK OF NEW ZEALAND -v- EVANS [2016] WASC 187

CORAM: MASTER SANDERSON

HEARD: 14 APRIL 2016

DELIVERED : 23 JUNE 2016

FILE NO/S: TTAJ 1 of 2015

BETWEEN: BANK OF NEW ZEALAND
Plaintiff
AND
HAYDEN CARL EVANS
Defendant

Catchwords:

Practice and procedure - Application to set aside registration of foreign judgment - Turns on own facts

Legislation:

Insolvency Act 2006 (NZ)
Trans-Tasman Proceedings Act 2010 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Ms J R Cass
Defendant: In person

Solicitors:

Plaintiff: Jackson McDonald
Defendant: In person

Case(s) referred to in judgment(s):

Bouton v Labiche (1994) 33 NSWLR 225
Fletcher Steel Ltd v Moghe [2006] NSWSC 425
Jenton Overseas Investment Pte Ltd v Townsing [2008] VSC 470; (2008) 21 VR 241
Property Restoration Ltd v Farquhar (1998) BCL 1125

MASTER SANDERSON: On 3 September 2015 the High Court of New Zealand made orders in the following terms:
(a)the defendant (Mr Evans) be adjudged bankrupt; and
(b)the plaintiff be allowed costs in an amount of $10,437 and disbursements in an amount of $765.21.
On 28 October 2015 the costs order was registered as a judgment of the Supreme Court of Western Australia pursuant to the provisions of the Trans‑Tasman Proceedings Act 2010 (Cth) (the Act).
The defendant applies to set aside the registration of the judgment. The application is supported by an affidavit of the defendant sworn 24 December 2015. The defendant raises three grounds upon which he says the judgment ought be set aside. First, the order registered 'is not a judgment, it is an adjudication of bankruptcy'. Second, on adjudication all bankruptcy proceedings are halted. Third, the registration of the judgment is not a proceeding commenced and completed and even if it were the consent of the New Zealand High Court would be required before registration could be effected.
The procedure for the recognition and enforcement of New Zealand judgments is set out in pt 7 of the Act. Section 66 of the Act provides that a judgment may be registered if, inter alia, the judgment is a final and conclusive judgment that is given in a civil proceeding by a New Zealand court. Section 72 of the Act outlines the circumstances in which the Australian registration of a New Zealand judgment may be set aside. That section provides that registration may be set aside where:
(a)the court is satisfied that enforcement of the judgment would be contrary to public policy in Australia; or
(b)the judgment was registered in contravention of [the] Act; or
(c)both of the following subparagraphs apply:
(i)the judgment was given in a proceeding the subject matter of which was immovable property, or was given in a proceeding in rem the subject matter of which was movable property;
(ii)that property was, at the time of the proceeding in the original court or tribunal, not situated in New Zealand.
As to the first issue the plaintiff points out the order adjudicating the defendant bankrupt has not been registered. Only the costs order has been registered. In s 4 of the Act 'judgment' is defined as including an award, decree or order of the court or tribunal. Section 71 of the Act permits registration of parts of judgments. Accordingly, it is permissible to register only the costs order. The plaintiff says the status of the costs order and its ability to be registered is not affected by the defendant's bankruptcy adjudication. Rather, under New Zealand law upon adjudication a bankrupt's debts are not extinguished, rather, all proceedings to recover any debt provable in bankruptcy are halted: see Insolvency Act 2006 (NZ) s 76 as explained in Property Restoration Ltd v Farquhar (1998) BCL 1125 [9].
This argument is ingenious and it must be accepted. The scheme of the New Zealand legislation clearly renders a costs order separate from the bankruptcy adjudication and the Act permits registration of just the costs order. The defendant's argument on this question fails.
As to the second argument advanced by the defendant s 75 of the Act provides that a New Zealand judgment registered in Australia is capable of being enforced in Australia only to the extent that at the time it is being enforced the judgment is capable of being enforced in the original court or tribunal in New Zealand. Section 75 is concerned with the enforcement of a judgment that has already been registered in Australia. It does not provide a basis upon which a registered judgment may be set aside. Accordingly, the defendant's argument on this issue fails.
The third issue concerns the operation of s 76(2) of the New Zealand Insolvency Act. As the bankruptcy order has not been registered in Australia s 76(2) of the New Zealand legislation has no application to proceedings to register a judgment in Australia. Accordingly whether the plaintiff has the consent of a New Zealand court to commence proceedings in New Zealand pursuant to the provisions of the Insolvency Act is irrelevant. Accordingly the defendant's argument on this point fails.
In written submissions counsel for the plaintiff also addressed s 72 of the Act, a matter which was not canvassed by the defendant. As the defendant appeared in person it is appropriate if I deal briefly with any argument that might have been put under s 72 of the Act. The only grounds of relevance in the current circumstances are first, that the enforcement of the judgment would be contrary to public policy in Australia and second, the judgment was registered in contravention of the Act.
As to the first of these questions it is enough if I quote what Kirby P had to say in Bouton v Labiche (1994) 33 NSWLR 225. His Honour said:
2.The interests of comity are not served if the courts of the common law are too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders which are, and remain, valid by the law of the domicile. ...
3.Nevertheless, the courts of the common law, ..., have reserved to themselves the right to refuse to recognise decrees and orders of foreign courts and tribunals ... where:
(a)the order impugned offends against local ideas of substantial justice. ...; or
(b)the decree or order has been obtained in the foreign court or tribunal contrary to the requirements of procedural fairness or natural justice. ... (234).
In Jenton Overseas Investment Pte Ltd v Townsing [2008] VSC 470; (2008) 21 VR 241, Whelan J reviewed the authorities and in particular considered what Kirby P said in Bouton v Labiche. His Honour went on to hold that substantial injustice whether because of the existence of a repugnant law or because of a repugnant application of the law in a particular case may invoke the public policy ground but only where the offence to public policy is of a fundamentally high order.
Clearly that is not the case here. The defendant was adjudged bankrupt in New Zealand. He has not been adjudged bankrupt in Australia. He is not the subject of the same restrictions in Australia as those that apply to him in New Zealand. Accordingly, there is no compelling reason to public policy why this judgment ought not be registered.
Finally, the costs order was validly registered pursuant to the provisions of the Act. The costs order is a final and conclusive judgment given in a civil proceeding in New Zealand: see Fletcher Steel Ltd v Moghe [2006] NSWSC 425.
Accordingly there is no basis upon which this judgment can be set aside. The defendant's application will be dismissed. The defendant should pay the costs of the application other than the costs of the appearance on 3 March 2016.