Bank of South Pacific Tonga (Formerly Westpac Bank of Tonga) v Tricia Emberson
[2016] NSWSC 383
•01 April 2016
Supreme Court
New South Wales
Medium Neutral Citation: Bank of South Pacific Tonga (Formerly Westpac Bank of Tonga) v Tricia Emberson [2016] NSWSC 383 Hearing dates: 1 April 2016 Date of orders: 01 April 2016 Decision date: 01 April 2016 Jurisdiction: Common Law Before: Wilson J Decision: 1. The judgment of the Supreme Court of Tonga may to be registered in this jurisdiction as a foreign judgment, pursuant to pt 2 of the Foreign Judgments Act 1991 and r 53.2 of the Uniform Civil Procedure Rules 2005.
2. I further order that the summons need not be served on the defendant pursuant to r 53.2 of the Uniform Civil Procedure Rules 2005.Catchwords: PRACTICE AND PROCEDURE – Judgments and Orders – registration of foreign judgments – Foreign Judgments Act 1991 – requirements to be satisfied Legislation Cited: Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 (Cth)
Tonga Court of Appeal Rules 1990 (Tonga)
Uniform Civil Procedure Rules 2005 (NSW)
Westpac Bank of Tonga Act (Tonga)Category: Procedural and other rulings Parties: Bank of South Pacific Tonga Limited (Plaintiff)
Tricia Emberson (Defendant)Representation: JHK Legal (Applicant)
File Number(s): 2016/00085855
EX TEMPORE Judgment
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By summons filed in the Registry of this Court on 18 March 2016, the plaintiff, the Bank of South Pacific Tonga Limited, formerly the Westpac Bank of Tonga, seeks orders from this Court, being the following orders:
Registration of a foreign judgment from the Supreme Court of Tonga pursuant to pt 2 of the Foreign Judgments Act 1991 (Cth) and r 53.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).
An order that the summons need not be served on the defendant pursuant to r 53.2 of the UCPR.
The plaintiff's costs of the application.
Other orders as the Court deems fit.
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Relied upon in support of the summons is an affidavit of Kathleen Faulkner, dated 16 March 2016, filed in the Registry on 18 March 2016 and an affidavit of Daniel Henson, dated 10 March 2016, similarly filed in the Registry on 18 March 2016.
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In his affidavit, Mr Henson, who is the country head and general manager for the plaintiff, deposes as to the history of the change of name that the plaintiff has undergone to its business in Tonga. Originally, the plaintiff was known as the Westpac Bank of Tonga, established by a statute under the Westpac Bank of Tonga Act (Tonga).
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During the time when the plaintiff was known by that name, judgment was obtained in its favour against the defendant in these proceedings, Ms Tricia Emberson. That judgment was obtained on 15 January 2016 in the Supreme Court of Tonga. Part of the evidence filed before the Court is a certified copy of the judgment of the Supreme Court of Tonga.
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The judgment in that Court was against the defendant for the sum, in Tongan currency, of $423,031.68. Additionally, there is an order for interest payable against that sum at a rate of 11.75% per annum, from 24 October 2013 to the date of judgment, with a further order for costs in favour of the plaintiff.
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The defendant was served with process in relation to the Tongan proceedings and it would appear she was aware of them, although she did not make an appearance in the Supreme Court in Tonga. The defendant has not been served with a copy of the summons in relation to these proceedings. She is known previously to have resided at an address in Waterloo in this State; that is the address at which she was served with process relevant to the proceedings before the Supreme Court in Tonga, service having occurred in November 2015.
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Mr Henson further deposes that in accordance with the Tonga Court of Appeal Rules 1990 (Tonga), the defendant in these proceedings no has longer an opportunity of appeal. The time allowed for appeal against the judgment of the Supreme Court of Tonga has lapsed and, in that period of time, no notice of appeal has been filed by Ms Emberson.
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The plaintiff has undertaken some inquiries of relevant banking institutions in New South Wales as to the exchange rate between the Tongan currency and the Australian dollar and Mr Henson provides evidence as to the amount in Australian dollars which will be payable as the equivalent of the orders made of the Supreme Court of Tonga, payable in Tongan dollars.
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In her affidavit, Kathleen Faulkner gives some further information as to the relevant exchange rates, and inquiries made of three of the large Australian banks; the Commonwealth Bank, the National Australia Bank and the Westpac Bank. An average of the exchange rates currently applicable from each of those banks gives an exchange rate of 1.8388 and, applying that exchange rate to the judgment debt, the amount payable by the defendant in Tongan dollars, that is $423,031.68, is converted to an amount of $230,058.55 in Australian currency. The interest which is due on the judgment sum, that being in Tongan currency, an amount of $110,850.52, has an Australian dollar equivalent of $60,284.63, with a daily interest accrual in Australian dollars in the sum of $74.06. The daily interest accrual in Australian dollars for the period 15 January 2016 to 16 March 2016 is $4,591.72.
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The Foreign Judgments Act provides for the registration of orders from a superior court of another country. Section 5(1) is the relevant provision:
“(1) If the Governor-General is satisfied that, in the event of the benefits conferred by this party being applied to money judgments given in the superior courts of a country, substantial reciprocity of treatment will be assured in relation to the enforcement that country of money judgments given in all Australian superior courts, the regulations may provide that this Part extends in relation to that country.”
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Section 5(4) is also of relevance as is s 6 of the Foreign Judgments Act. They provide:
“Section 5:
[….]
(4) This Part applies to an enforceable money judgment that:
(a) is final and conclusive; and
(b) was given in:
(i) a superior court of a country in relation to which this Part extends; or
(ii) an inferior court of such a country, being an inferior court in relation to which this Part extends.“
“Section 6:
(1) A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:
(a) the date of judgment
[…]
(2) For the purposes of subsection (1) the appropriate court is: […]
(c) in any other case – the Supreme Court of a State or Territory.”
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Schedule 2 of the Foreign Judgments Regulations 1992 (Cth) refers to and includes the Supreme Court of Tonga. Rule 53.2 of the UCPR provides for proceedings for registrations of a judgment to be commenced in this Court and provides in sub-rule 3 for the judgment creditor to proceed without service of the summons on the judgment debtor.
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Rule 53.3 of the UCPR provides for some of those things which must be established in evidence, including a certified copy of the judgment of the foreign jurisdiction, which I have already referred to as in evidence; evidence as to the amount payable referable to the judgment, and evidence showing that the Supreme Court is the appropriate court under s 6(1) of the Foreign Judgments Act. There are also references in the UCPR to the need to establish the nature and name of the relevant business, details of interests payable, and the rate of interest, and so forth.
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I am satisfied that the Supreme Court of Tonga is a Court that comes within the scope of pt 5 of the Foreign Judgments Act and that this Court is the appropriate court in which this matter should be heard and determined. I am additionally satisfied that the provisions provide for the proceedings to continue without service of the summons on the defendant. Those matters referred to in 53.3 of the UCPR have been satisfied in the evidence before the Court, from Mr Henson and Ms Faulkner.
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Accordingly, I am prepared to make the orders sought in the summons from the plaintiff, one and two, and that is, I make orders that:
The judgment of the Supreme Court of Tonga may be registered in this jurisdiction as a foreign judgment pursuant to pt 2 of the Foreign Judgments Act and r 53.2 of the UCPR.
I make a further order that the summons need not be served on the defendant pursuant to r 53.2 of the UCPR.
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The plaintiff has additionally sought its costs of the application. Those costs are set out in the written submissions filed on behalf of the plaintiff, in the amount of $4,141 being made up of the filing fee of $2,886 and professional fees of $1,255, relevant to both the preparation of the summons and attendance at court. I am not prepared to make an order for those costs in the absence of any opportunity for the defendant to be heard and, accordingly, I make no order as to costs.
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Decision last updated: 06 April 2016
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