Bank of Western Australia Ltd v O'Neill - [1999] WASC 10

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MORF-ZINGGELER -v- MORF [1999] WASC 10

CORAM: McKECHNIE J

HEARD: 27 APRIL 1999

DELIVERED : 27 APRIL 1999

PUBLISHED : 21 MAY 1999

FILE NO/S: FRJ 11 of 1998

BETWEEN: JEANETTE MORF-ZINGGELER
Plaintiff
AND
MARCO MORF
Defendant

Catchwords:

Foreign judgment registration - Matters to be considered - Turns on own facts

Legislation:

Foreign Judgments Act 1991 (Cth)

Rules of the Supreme Court O 44A

Result:

Leave granted to register judgment

Representation:

Counsel:

Plaintiff: Mr O D Feinauer
Defendant: In person

Solicitors:

Plaintiff: Preuss Feinauer & Assoc
Defendant: In person

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

Nil

Case(s) also cited:

Nil

McKECHNIE J : This is an application for the registration of a foreign judgment, the judgment being that of an inferior court, the District Court at Meilen in Switzerland, obtained in the matter of Jeanette Morf‑Zinggeler and Marco Morf of 19 May 1993 at Meilen, Switzerland. The application is brought under the Foreign Judgments Act 1991 of the Commonwealth. The matter has proceeded somewhat unusually in that normally these applications are made ex parte, the defendant's rights being protected by a period being given within which application may be made to have the registration of a judgment set aside.
The matter came before Wheeler J who made orders because injunctions were also sought at the time. As a result, the defendant has been permitted to file affidavits in opposition to the application and the plaintiff has been permitted to file other affidavits in support.
In my view there are two questions which arise. The first is whether the judgment should be registered and the second is, assuming that it is registered, how much of the judgment is able to be enforced. In the hearing today I have deliberately split those two questions because I believe confusion will arise if they are blurred. At this stage I propose to deal only with the question whether the judgment which I have described should be registered.
The Foreign Judgments Act of 1991 to which I have referred provides by s 6:
"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 the judgment – "
which is the only relevant part. The judgment was May 1993, so this application has been brought within the six year period.
"The Court" is the District Court, is a recognised court under regulations made under the Act. Subsection (3) provides:
"Subject to this Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered."
That would suggest there is little discretion in a court to refuse to register a judgment. It is not necessary for me to rule today whether there is any discretion in the view that I take as to the facts.
The Rules of Court in this State are set out in O44A which deals specifically with the registration and enforcement of judgments under the Foreign Judgments Act. The plaintiff must satisfy various conditions within the Rules. They are, under O 44A r 4:
"(1)A application for registration shall be supported by an affidavit of the facts:
(a)exhibiting a certified copy of the judgment issued by the original court and authenticated by its seal and where the judgment is not in the English language a translation of the judgment certified by a notary public or authenticated by affidavits.
(b)stating to the best of the information and belief of the deponent –"
I am satisfied that the plaintiff has discharged that precondition. There is filed a sealed copy of the original together with a translation by Dr Frick. The Rule goes on to state that the affidavit shall state to the best of the information and belief of the deponent:
"(i)that the applicant is entitled to enforce the judgment;"
That is complied with.
"(ii)as the case may require, either that at the date of the application the judgment has not been complied with, or if the judgment has been complied with in part, the amount in respect of which it remains unsatisfied;"
That has been complied with.
"(iii)that at the date of the application the judgment is capable of enforcement in the country of the original court; and
(iv)that if the judgment were registered, the registration would not be, or be liable to be, set aside under section 7 of the Act; and"
That has been complied with.
"(c)specifying the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the time of registration."
That has been complied with. The amount of interest is 5 per cent.
The deponent has also, in accordance with the Rule, deposed that if the judgment were registered, the registration would not be liable to be set aside under the Foreign Judgments Act, s 7, a section to which I will refer again shortly.
An affidavit has been handed to me this morning and will be filed as to the exchange rate prevailing as at today's date, although in my view such an affidavit is, strictly, in this case not important because the sum payable under the judgment is not expressed in a particular currency, that being because the sum payable is not yet ascertained.
Finally, the plaintiff has deposed to her particulars and the particulars of the defendant.
The Foreign JudgmentsAct s 7 provides that a party may seek to have the registration of a judgment set aside by applying to the Court and there follows a series of conditions whereby the Court must set aside the registration if it is satisfied as to various other matters. I have read the affidavits filed by the defendant and I am not satisfied that any of the matters set out in the Foreign Judgments Act s 7(2) have been made out.
As I said at the commencement of these reasons, the way in which this matter has progressed is somewhat unusual because I am dealing, in effect if not in strict law, with both the application to register and the application to set aside. I am not satisfied, that the judgment should be set aside and consequently in my view the application for the judgment should be acceded to.
I am required under Foreign Judgment Act s 6(4) to state a period within which an application may be made under s 7 to have the registration of the judgment set aside. Because, I have effectively dealt with that application at this time, I would set a nominal period of three days for that application. Normally one would set a longer period, but because the defendant has represented himself today and has filed affidavits in opposition, a nominal period is sufficient.
That disposes of the first question which arises, namely, whether the judgment should be registered. The plaintiff in her affidavit claims payment of a sum of 183,000‑odd Swiss francs which roughly equates to $A183,000. She also claims a set‑off of $120,000 by virtue of what is translated as a promissory note which is to secure a loan made to her by the defendant, that promissory note to expire normally in October next year.
In the affidavits filed by the defendant he challenges the amount paid, in other words, the arithmetical total of the amount paid by him or said to be unpaid by him in the plaintiff's affidavit. He also asserts that the plaintiff is living in a de facto relationship, although there is not presently direct evidence of that fact before the Court.
The relevance of the de facto relationship is that under the order which I have just ordered to be registered, if the plaintiff is in a de facto relationship after a period of time certain consequences follow as to the amount due and payable for maintenance each month, so it seems to me that the registration of the judgment does not conclude matters.
The parties may have others, but there are, it seems to me, three issues to be determined before the actual amount of what is owing can be ascertained. They are:
(1)Whether the plaintiff's assertions and calculation of the amount owing is correct having regard to the defendant's assertions.
(2)Whether and for what period the plaintiff has lived in a de facto relationship. I interpose to observe that although the defendant has asserted that she has, the plaintiff and the person with whom she is alleged to have had the relationship have both denied that on oath.
(3)Whether the plaintiff can set off from the judgment owing the amount due under the promissory note before it becomes due.
When all of those matters have been resolved, then there can be enforcement proceedings for the amount owing, if of course the resolution of those matters is that there is any amount owing. The Foreign Judgments Act does not assist in relation to that because it is concerned only with the registration. The scheme of the Act is that once the judgment is registered, the normal provisions of Western Australian law will apply to the enforcement of judgments, including examinations in aid, execution and the like, so it would seem appropriate that I make orders which will advance the resolution of those three issues I have outlined and any other issues that the parties may wish so that they can be advanced as soon as possible.
I would add this. My present view is that those matters have to be resolved by this Court in accordance with the law. The law of Switzerland may well be relevant in order to interpret the judgment, but the matters which I have raised at least are essentially factual questions and this Court in Western Australia is in as good a position as any to resolve them.