Benefit Strategies Group Inc v Prider - [2004] SASC 365

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BENEFIT STRATEGIES GROUP INC & ANOR v PRIDER
Judgment of The Honourable Justice Gray
15 November 2004
PRIVATE INTERNATIONAL LAW - FOREIGN JUDGMENTS - EFFECT AND ENFORCEMENT - GENERALLY - JUDGMENTS IN PERSONAM
EQUITY - GENERAL PRINCIPLES - REMEDIES AND PROCEDURE - FRAUD OR MISREPRESENTATION AS A DEFENCE OR ANSWER
Application for immediate relief - plaintiffs seek recognition and enforcement of a foreign judgment of the Superior Court of California - default judgment entered in favour of the plaintiffs in the Californian proceedings against a number of defendants including the defendant in these proceedings - defendant claimed real issues to be tried - triable issues identified as fraudulent evidence of service of the Californian proceedings on the defendant, fraudulent version of events presented to the Californian Court, breach of international rules of natural justice, breach of public policy in relation to the form of the judgment and punitive damages - discussion of enforcement of foreign judgments in Australian Courts - consideration of merits of defence of fraud - consideration of credibility of the defendant - consideration of public policy issues.
Held - no arguable case of fraud or breach of natural justice - form of judgment not to prevent enforcement - punitive aspects of Californian judgment not enforced - no serious question to be tried - application for immediate relief granted - Californian judgment enforced in part.
Foreign Judgments Regulations 1992 (Cth); Supreme Court Rule 1988 (SA) r 25.02; Californian Code of Civil Procedure s 585, s 415.20, s 416.30, s 685.010(a), referred to.
Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd (1988) 146 LSJS 150; Emanuel & Ors v Symon [1908] 1 KB 302 at 309; Meyers v Casey (1913) 17 CLR 90 at 114-115; Blohn v Desser [1962] 2 QB 116; Codd v de Lap (1905) LT 510; Monroe Schneider v No 1 Rarebem (No 2) (1992) 37 FCR 234; Adams v Cape Industries Pty Ltd [1990] Ch D 433; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Webster v Lampard (1993) 177 CLR 598, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"fraudulent service"

BENEFIT STRATEGIES GROUP INC & ANOR v PRIDER
[2004] SASC 365
Civil
GRAY J
Introduction
The Application

This is an application for immediate relief.
The plaintiffs, Benefit Strategies Group Incorporated and Astrotech Enterprises Incorporated, seek the recognition and enforcement in this Court of a foreign judgement of the Superior Court of California. Both plaintiffs are United States of America incorporated entities. The defendant in the present proceedings, Trevor Laurence Prider (Mr Prider), was one of a number of defendants to the California proceedings. Specifically the plaintiffs seek that:
-judgment be entered for the plaintiffs against [Mr Prider] in the sum of US$16,439,593.53 (comprising damages in the sum US$2,265,000.00, punitive damages of US$13,125,000.00, prejudgment interest in the sum of US$626,261.96, attorneys’ fees in the sum of US$75,500.00 costs in the sum of US$14,696.77 less amounts recovered in partial satisfaction), or in the alternative in Australian Dollars.
-[the plaintiffs] have interest on the judgment sum of US$16,439,593.53 (or its Australian Dollar equivalent) from 1 May 2002 to the date on which the judgment is satisfied calculated at a rate of 10% per annum.
-[Mr Prider] pay the costs of this application.
-such further or other orders as this court thinks fit.
In Australia, a foreign judgment cannot be enforced against a judgment debtor unless the judgment is either capable of being recognised and enforced at common law as an action on the judgment or is registered pursuant to legislation. As the United States of America is not a country listed in the schedule to the Foreign Judgments Regulations 1992 (Cth), the plaintiffs are not able to register the California Judgment in this Court under that Act. However, the plaintiffs submit that the Californian judgment should be recognised and enforced in South Australia pursuant to common law principles.
Supreme Court Rules 1988 (SA) 25.01 and 25.02 provide:
25.01Where a plaintiff wishes to obtain an order to dispose of the action, or any part thereof, summarily he may:
(a)endorse a statement to that effect on the summons prior to its issue; and
(b)at the time of issuing his summons file an affidavit setting out in detail the particulars of the plaintiff’s claim; and
(c)inform the defendant that unless within the time specified in the summons for filing a notice of address for service the defendant files an affidavit that he has a good defence to the action on the merits specifying the grounds of such defence the plaintiff may apply to enter judgment summarily on the claim without further notice to the defendant.
25.02(1)     In the alternative to Rule 25.01 the plaintiff may after the time of issuing his summons take out an application for immediate relief.
(2)     The application shall be supported by an affidavit verifying the plaintiff’s claim and exhibiting all relevant documents.
(3)     The application shall be returnable not less than two days after service.
Supreme Court Rule 25 provides an avenue for immediate relief where there is no serious question to be tried. In Settlement Wine Co Pty Ltd v National & General Insurance Co Ltd[1] King CJ observed:
Immediate Relief may be justified not only by circumstances of urgency requiring speedy decision of issues which are capable of resolution without lengthy trial, but also by the lack of any credible defence in the sense of real issue to be tried, irrespective of the existence of circumstances of urgency.
[1] (1988) 146 LSJS 150 at 153
Counsel for the plaintiffs submitted that immediate relief should be granted on the basis that there was a lack of any credible defence in the sense of a real issue to be tried. Mr Prider opposed the application for summary relief. Counsel for Mr Prider contended that the onus was on the plaintiffs to satisfy the court that there was no serious question to be tried. It was claimed that this onus had not been satisfied.
When determining whether there is a triable issue of fraud, Mr Prider bears a positive burden. In Settlement Wine Co Pty Ltd[2] King CJ observed:
The [plaintiff] proved by affidavit the existence of the policy and the occurrence of loss insured against. The onus of proving that the circumstances rendered General Exclusion 3 applicable so as to exonerate the appellant from liability, lay on the [defendant].
[2] (1988) 146 LSJS 150 at 152
The powers of the court on the hearing of an immediate relief application are contained in Supreme Court Rule 25.03 which provides:
On the summons under Rule 25.01, or on the hearing of an application under Rule 25.02, the Court may make an order that judgment be entered for the plaintiff for the whole or any part of the relief claimed in the action and may order that the proceedings continue in relation to any issue or part of the action not disposed of, or may treat any application as an application for directions in the action.
Californian Proceedings
For some years prior to June 2001 the defendant, Mr Prider, and members of his family resided at 25732 Bucklestone Court, Laguna Hills, California. Mr Prider was involved in a number of business activities. These activities involved Trade Direct Corporation. As a result of these activities, Mr Prider was sued in the Californian Court.
On 21 May 2001 the plaintiffs filed a summons and complaint in the Superior Court of California against a number of defendants including Mr Prider. The summons sought compensation for each plaintiff for breach of contract, fraud, conversion and breach of fiduciary duty
It is said by the plaintiffs that Mr Prider had been served with the Californian proceedings on 24 May 2001 in accordance with the relevant rules of court. This is disputed by Mr Prider. The question of service will be discussed later in these reasons.
There was no attendance by Mr Prider or his legal representative before the Californian Court. Ultimately default judgment was entered. There were many applications and other processes in the Californian Court prior to the entry of judgment. Numerous court documents were said to have been served by prepaid post on Mr Prider.
On 29 April 2002 the plaintiffs applied to the Californian Court for default judgment. Declarations verifying the claim were filed. The brief in support of that application included the following:
In determining whether a plaintiff is entitled to a default judgment, “the correct standard of proof requires that the plaintiff merely establish a prima facie case. ‘ Generally speaking, the party who makes default thereby confesses the material allegations of the complaint. It is also true that where a cause of action is stated in the complaint and evidence is introduced to establish a prima facie case the trial court may not disregard the same, but must hear the evidence offered by the plaintiff and must render judgment in his favor for such sum, not exceeding the amount stated in the complaint, or for such relief, not exceeding that demanded in the complaint, as appears from the evidence to be just’”.
…
Compensatory Damages
In this case, Plaintiffs have presented evidence which clearly makes out a prima facie case that Mr Prider and [Trade Direct Corporation] fraudulently induced Plaintiffs to make investments totalling $2,625,000.00, which Prider and [Trade Direct Corporation] failed to invest and failed to account for. Thus, Plaintiffs are entitled to recover compensatory damages in the amount of $2,625,000.00 under their causes of action for fraud, conversion, breach of fiduciary duty, money had and received, and violations of the Corporations Code.
…
Prejudgment Interest
…
The Defendants have used all of the funds invested by both Plaintiffs, … [a]ccordingly, Plaintiffs are entitle to interest at the rate of $719.18 per day (10% per annum interest on principal amount of $2,625,000.00) from December 15, 1999, for a total as of April 22, 2002 (859 days) of $617, 775.62.
Moreover, [Benefit Strategies Group] is entitled to an additional $431.51 per day (10% per annum interest on principal amount of $1,575,000.00) for the eight days from December 7, 1999, when [Benefit Strategies Group] invested its funds, until December 15, 1999, when the Defendants received Astrotech’s funds.
…
Conclusion
…the court should enter judgment by default against Defendants … jointly and severally, in the amount of $16,466,731.73 consisting of $2,625,000.00 for compensatory damages, $13,125,000.00 for punitive damages, $626,261.96 in prejudgment interest as of April 29, 2002, and $90,469.77 for attorneys’ fees and costs.
On 1 May 2002 the plaintiffs obtained a judgment in the Superior Court of California in the amount of US$16,466,731.73 against the defendants, including Mr Prider. The judgment sum comprised damages in the amount of US$2,625,000.00, punitive damages of US$13,125,000.00, prejudgment interest of US$626,261.96 and costs of US$90,469.77. The judgment of the Court was as follows:
Upon application to this court, the Honorable Raymond J Ikola, Judge Presiding, and the court having considered the declarations filed pursuant to Section 585(d) of the Code of Civil Procedure, the court finds that:
(a)    The Defendants were properly served with copies of the Summons, Complaint, and a Notice of Reservation of Right to Seek Punitive Damages on Default Judgment.
(b)   The Defendants failed to answer the Complaint or appear and defend the action within the time allowed by the law.
(c)    The Defendants’ default was entered by the clerk upon Plaintiff’s application.
Good cause appearing therefore, it is hereby ordered … that Plaintiffs … shall recover from Defendants… jointly and severally …total judgment in the amount of $16,466,731.73, which amount shall bear interest hereafter at the legal rate of interest until the judgment is fully satisfied.[3]
[3]Post judgment interest is fixed at 10% per annum pursuant to section 685.010(a) of the California Code.
Following the default judgment, no appeal or application to stay the judgment has been filed. The time period within which that judgment may be appealed or set aside has expired.
Proceedings in this court
Counsel for the plaintiffs submitted that it was appropriate to order immediate relief as there was no serious issue to be tried. The plaintiffs summarised their claim as follows:
The law relating to recognition and enforcement of judgments at common law is well settled. The affidavits filed for the Plaintiffs clearly establish the requisite preconditions to recognition of the Californian judgment in this Honourable Court : namely that:
-The Californian Court has personal jurisdiction over the [Mr Prider];
-The Californian Judgment is final and conclusive;
-The parties are identical and in the same interest;
-The California Judgment is for a certain sum.
[Mr Prider’s] affidavits do not establish a triable issue in respect of the Plaintiff’s claim, and in particular, it is the Plaintiff’s submission that there are no facts proved establishing a triable issue in respect of any possible defences available under the common law. An application for immediate relief is therefore appropriate in all the circumstances.
[Mr Prider] has not taken any steps to have the Californian judgment set aside despite his prior knowledge of the existence of the Californian proceedings. It is therefore presently enforceable under the Californian law.
The Plaintiffs are therefore entitled to the relief sought herein and judgment should be made for the Plaintiffs against [Mr Prider].
The plaintiffs application for immediate relief was supported by affidavits from Alan Asher Greenberg and Ronald Hugh Snyder. Annexed to these affidavits were documents relating to the Californian proceedings. A number of the annexures were received on the basis that they were evidence of what had occurred before the Californian court, but were not evidence of the underlying primary facts.
The plaintiffs’ application for immediate relief was opposed. Evidence was tendered by counsel for Mr Prider. This evidence will be discussed later in these reasons. The matters said to give rise to a credible defence can be summarised as follows:
-Claims of fraud - a fraud on the California Court by the process servers; and a fraudulent account of the alleged misconduct contained in affidavits filed on behalf of the plaintiffs in the Californian action;
-A breach of the international rules of natural justice was said to have occurred. Notice of the Californian proceedings was not given to Mr Prider and he had no opportunity to defend the proceedings;
-Issues of public policy:
-the form of the judgment –a joint judgment was entered by the California Court for both plaintiffs without regard to the separate claims made by each plaintiff;
-punitive damages - whether the punitive damages component of the California judgment offends public policy.
In substance, the question for determination by this Court is whether triable issues have been identified, whether the proceedings should continue in relation to any issue, and whether there should be for security provided by the defendant.
Legal Principles
As earlier observed, as the United States of America is not a country listed in the schedule to the Foreign Judgments Regulations 1992 (Cth), the plaintiffs rely on common law principles to support their submission that the California judgment should be recognised and enforced in South Australia.
In Australia there are four well-established common law requirements for the recognition and enforcement of foreign judgments in personam:
-the foreign court must have exercised a jurisdiction over the judgment debtor which Australian courts will recognise;
-the foreign judgment must be final and conclusive;
-there must be an identity of parties; and
-the foreign judgment must be for a certain sum.
Counsel for Mr Prider accepted these principles as being necessary requirements, but contended that they were not sufficient conditions precedent to the enforcement of a foreign judgment at common law. Counsel claimed that the earlier identified defences give rise to triable issues.
Jurisdiction of the Foreign Court
In order for an Australian court to recognise the jurisdiction of a foreign court, the foreign court must have had personal jurisdiction over the defendant at the time the jurisdiction was invoked.[4] Counsel for the plaintiffs submitted that a foreign court would be recognised as having personal jurisdiction over a defendant who is a natural person provided the defendant:
-was a resident of or actively exercising rights of citizenship in the jurisdiction of that court or a subject of the foreign court in which the judgment was obtained, even if temporarily absent;
-was physically present within the jurisdiction of the foreign court when its jurisdiction was invoked, even if that presence was only transient;
-voluntarily entered an unconditional appearance in the foreign proceedings or participated in the foreign proceedings by arguing the merits of the case or seeking relief as a party; or
-agreed prior to the litigation to submit to the jurisdiction of the foreign court by making a contractual promise to that effect or by giving authority to a person within the foreign jurisdiction to accept service on behalf of the defendant.
[4] Emanuel & Ors v Symon [1908] 1 KB 302 at 309
Counsel for the plaintiffs submitted that the Superior Court of the State of California had jurisdiction over Mr Prider because the proceedings were instituted and served while Mr Prider was a resident of, or subject of, or at the very least present in, the State of California.
It was said that the affidavits of Mr Greenberg supported the conclusion that Mr Prider was a resident or subject of the State of California at the time the proceedings were initiated and served. It was further contended that Mr Prider or a competent member of his household was served with the originating documents at 25732 Bucklestone Court, Laguna Hills, California.
Counsel for the defendant accepted that the Californian Court had jurisdiction over Mr Prider in the requisite sense at the time when the Californian proceedings were instituted. However it was said that service of the proceedings had not been effected in accordance with the Californian legal requirements. It was claimed that the process servers provided deliberately false material to the Californian Court.
Final and Conclusive Judgment
As earlier observed, in order for a foreign judgment to be recognised pursuant to common law principles, the foreign judgment must be final and conclusive. It must put an end to the particular proceedings and determine once and for all the controversy between the parties in the proceedings.
Counsel for the plaintiffs submitted that a default judgment was enforceable as a final and conclusive judgment. It was said that for a judgment to be final and conclusive it is not necessary for it to be established that the decision is correct. Counsel referred to Meyers v Casey[5] where Isaacs J observed
…[A] competent Court or other Tribunal has jurisdiction to give a wrong judgment, and if there is no appeal in the strict sense, then its decision, whether right or wrong, must stand, and cannot be questioned in any subsequent proceedings elsewhere.
[5] (1913) 17 CLR 90 at 115

Counsel for the plaintiffs drew attention to the principle that a foreign judgment can be final and conclusive even though it is subject to appeal and even if an appeal is pending. In the present case, neither Mr Prider nor any other defendants in the California proceedings, have taken action to have the default judgment set aside or to appeal from the decision.
Counsel for Mr Prider accepted that a default judgment is considered to be a final and conclusive judgment unless or until steps are taken to set aside the judgment. It was accepted that it was not necessary that a decision be correct to be final and conclusive. It was submitted and accepted that a court of competent jurisdiction may correctly or incorrectly decide and that in either case the decision would remain binding unless reversed on appeal.
The California judgment was given in May 2002. The time to appeal that judgment or to apply to set it aside has lapsed. As earlier observed there has been no application to set aside the judgment or lodge an appeal.
Identity of Parties
In order for an Australian court to recognise a foreign judgment, the parties to the foreign judgment and the enforcement proceedings must be identical and in the same interest.[6] Counsel for the plaintiffs submitted that, although the default judgment in the California Court was entered jointly and severally against six defendants,[7] the parties in the present proceedings are relevantly identical and were suing and being sued in the same capacity. This was said to be the case notwithstanding that in the present proceedings, Mr Prider was the only named defendant. This proposition was not challenged by counsel for Mr Prider. Relevantly it should be concluded that there is an identity of parties.
[6] Blohn v Desser [1962] 2 QB 116
[7]The six defendants were Trade Direct Corp, Trevor Laurence Prider, Barony Holdings Inc, Eurovest Inc, Capital Underwriter Limited, Poptech Inc and Presto Financial Corporation.
Judgment for a Fixed Sum
In order for a foreign judgment to be enforced by an Australian court, the judgment must be for a fixed sum. Counsel for the plaintiffs submitted that the judgment of the California court fixed a certain sum of money and a readily calculable amount of interest on that sum. The California judgment provided that the plaintiffs recover from the defendants:
[T]he sum of $2,625,000.00 for actual damages, plus prejudgment interest thereon in the amount of $626,261.96 plus punitive damages in the amount of $13,125,000.00, and the further sums of $75,500.00 for attorney’s fees, and $14,969.77 for costs, for a total judgment in the amount of $16,466,731.73 which amount shall bear interest hereafter at the legal rate of interest until the judgment is fully satisfied.
It was submitted that the post judgment interest has accrued at a rate of 10% and is readily calculable pursuant to section 685.010(a) of the Californian Code of Civil Procedure.
As at the commencement of the present proceedings, US$27,138.20 has been recovered by the plaintiffs from the defendants. As a result, the plaintiffs seek judgment against Mr Prider for the Australian equivalent of the whole of the judgment sum less the amount recovered.
Consideration of the issues arising
The Parties’ Submissions
It was submitted by counsel for Mr Prider that the California judgment was voidable on the ground of fraud. In particular, it was contended that there had been no valid service on Mr Prider of the California proceedings. It was said that fraudulent evidence was presented by the process servers as well as by Messrs Synder and Stewart in the California proceedings. It was argued that a foreign judgment obtained by fraud or misrepresentation cannot be enforced in a court of common law.[8] It was asserted that the allegations of fraud gave rise to triable defences sufficient to warrant refusal of the application. It was also argued that this court as a matter of public policy would not enforce the award of punitive damages nor any joint liability of Mr Prider to the plaintiffs.
[8]Codd v de Lap (1905) 92 LT 510; Monroe Schneider v No 1 Rarebem (No 2) (1992) 37 FCR 234, 238-243
It was submitted by counsel for the plaintiffs that under applicable principles of private international law, the plaintiffs were not required to establish that valid service had occurred. It was said that the plaintiffs are only required to establish the four well-established requirements of jurisdiction, finality, identity and certainty of the judgment sum in order to have the foreign judgment enforced in Australia. Counsel argued that Mr Prider had failed to discharge the onus of establishing a triable case of fraud or a denial of natural justice. It was said that no triable defence to the present proceedings had been established. Counsel did not pursue the recognition and enforcement of the punitive damages awarded by the Californian Court. Counsel also did seek the recognition of a joint liability.
Credit of Mr Prider
On October 2003 Mr Prider provided an affidavit of assets. This affidavit was relied on by Mr Prider as being relevant to the consideration of any terms that might be imposed as a condition, should the court find the defendant had identified a triable defence.
The plaintiffs sought leave to cross examine Mr Prider on the affidavit of assets. This was not opposed. Following cross examination it was submitted by counsel for the plaintiffs that Mr Prider was not a witness of truth either in his affidavit of assets or in his oral testimony. The affidavit had suggested that Mr Prider had very few assets and that those assets were of little value. The evidence adduced under cross examination ultimately disclosed that Mr Prider had assets of substantial value. Counsel for the plaintiffs submitted that Mr Prider’s evidence was deliberately incomplete and evasive.
The cross examination demonstrated that Mr Prider had not been frank about his assets. Mr Prider’s credibility was substantially damaged. This lack of credibility will be discussed in detail later in these reasons. Counsel for the plaintiffs contended that the demonstrated lack of credibility was relevant to the weight that the court should attach to the other affidavit evidence of Mr Prider. As a result, detailed submissions were developed and the other affidavit evidence filed by and on behalf of Mr Prider was closely scrutinised.
It is against this background that the Court, came to finally consider the other evidence tendered in opposition to the plaintiffs claim.
Plaintiffs’ Evidence
The plaintiffs relied on a number of affidavits when making submissions in relation to their application for immediate relief.[9] Alan Asher Greenberg was the deponent of two of the affidavits.
First Affidavit of Alan Asher Greenberg
[9]The affidavits relied on by the plaintiff were sworn by Alan Asher Greenberg on 20 August 2002 and 3 September 2003; Ronald Hugh Snyder on 3 September 2003 and Vanessa Anita Varga on 11 March 2004.
In an affidavit sworn 20 August 2002, Alan Asher Greenberg outlined the background to the California proceedings. Annexed to this affidavit were documents relating to those proceedings. The annexures relating to the California action were received as evidence on the application with the qualification that the truth of the matters alleged in the annexures were not proved before this court. However, it was accepted that the annexures accurately recorded what had occurred in the Californian proceedings.
Mr Greenberg deposed that on 21 May 2001 the plaintiffs filed a Summons of Complaint with the Superior Court of California, thereby commencing proceedings against Trade Direct Corporation, Trevor L Prider, T G Whitbread, Barony Holdings Inc, Eurovest Inc and Does 1-100 seeking compensation for breach of written contract, fraud, conversion, and breach of fiduciary duty.
In relation to service of the California proceedings on Mr Prider, the affidavit asserted:
On 24 May 2001 at 7.41am, a process server attended at 25732 Bucklestone Court, Laguna Hills, California and served the Summons, Complaint, Civil Cover Sheet, Complex Litigation Panel Information Guidelines - Complex Departments, Department C 42 Information in the California Proceedings on an adult male who described himself as the son of the Defendant. That same day, the process server mailed copies of the documents served on the Defendant’s son to the Defendant at his address at Laguna Hills, by pre-paid post from Santa Ana, California … .
In accordance with sections 415.20(b) and 416.90 of the California Code of Civil Procedure, where a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, a summons may be served by:
- leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode or usual mailing address in the presence of a competent member of the household over 18 years of age, who shall be informed of the contents; and
- by thereafter mailing a copy of the summons and of the complaint to the person to be served at the place where the copy was left.
I believe that the Defendant had actual knowledge of the California Proceedings prior to judgment being entered against the Californian defendants.
A copy of the proof of service sworn by the process server and filed in the California proceedings on 8 June 2001 was attached as an annexure to the affidavit. The completed proof of service indicated that Rey Warburton served Trevor L Prider of 25732 Bucklestone Court, Laguna Hills, California. The proof provided that service was effected by:
LEAVING the copies with or in the presence of (name and title or relationship to person indicated in 2a):
(Name): Mr Mr Prider (SON OF MR PRIDER) Age:22yrs/Ht:5’10”/Wgt: 160Lbs/Hr:.Brn/Eyes: Brn
The form further indicated that the service occurred at Trevor L Prider’s home at 7.41am on 24 May 2001 on a:
competent member of the household (at least 18 years of age) at the dwelling house or usual place of bode of the person served.
A declaration of due diligence was attached to the proof of service form. It included the following information:
Date:                Time:  Status
5-21-00             5.15PM     #1            WENT TO THE BUSINESS, SUITE 302 HAS NO NAME ON THE DOOR AND THE DOOR IS LOCKED.
5-22-01             10.00AM    #1            BUSINESS SUITE STILL LOCKED. LEASING OFFICE (BRISTOL PARK MEDICAL CENTER) ASLO (sic) CLOSED. LEASING OFFICE PHONE NUMBER (714) 680-8394. WE CALLED THE NUMBER AND WERE REFERRED TO A MOBIL (sic) PHONE. WE LEFT MESSAGES WITH BOTH PHONE NUMBERS.
5-22-01             2.30PM     #1            BUSINESS LOCATION STILL LOCKED. WE SPOKE TO OTHER TENANTS IN THE BUILDING AND THEY DID NOT KNOW WHO RENTED IN SUITE NUMBER 302. CALL 411 INFORMATION FOR LISTINGS UNDER ALL COMPANY NAMES, THERE WERE NO LISTINGS FOUND.
5-23-01             9.00AM      #1            BUSINESS LOCATION STILL LOCKED. WE LEFT ANOTHER MESSAGE FOR THE LEASING OFFICE. NO RESPONSE.
5-23-01             2.30PM     #2            RESIDENCE FOR SALE. A REALATOR WAS SHOWING THE PROPERTY WHEN WE ARRIVED. MRS. PRIDER WAS AT THE RESIDENCE. WE ASEKD (sic) FOR MR. PRIDER AND SHE STATED HE WAS IN EUROPE AND DID NOT KNOW WHEN HE WOULD RETURN. ONE CAR IN DRIVEWAY, LOOKED LIKE THE CAR HAD BEEN PARKED FOR QUITE A WHILE AND HAD NOT BEEN MOVED. WE TOLD THE WIFE WE HAD DOCUMENTS FOR HER HUSBAND, SHE ASKED WHAT IT WAS REGARDING. WE TOLD HER ALL THE COMPANY NAMES AND SHE THEN STATED THAT SHE KNEW OF ONLY ONE OF THOSE COMPANIES, BUT WOULD NOT TELL US WHICH ONE, BECAUSE SHE HAD NOTHING TO DO WITH THE BUSINESS. WE ASKED IF THERE WAS ANY WAY SHE COULD GET IN CONTACT WITH HER HUSBAND SHE SAID NO WE WOULD HAVE TO COME BACK SOME OTHER TIME.
THE HOUSE WAS FURNISHED, BUT ALL THE UPSTAIRS WINDOWS WERE CLOSED AND ALL THE DRAPES WERE DRAWN.
5-23-01             4.50PM  CALLED THE REAL ESTATE AGENT LEFT MESSAGE TO SEE IF WE COULD MAKE AN APPOINTMENT TO SEE THE PROPERTY.
5-23-01             5.00PM     #2            NO ANSWER AT DOOR. THE CAR WAS STILL IN THE DRIVEWAY. HOUSE IS ALL CLOSED UP.
5-23-01     7.30PM – 9.00PM        #2    WAITED UNTIL 9.00PM KNOCKED ON THE DOOR. NO ANSWER. COULD SEE A LIGHT ON INSIDE WAY IN THE BACK. WAITED FOR A FEW MINUTES KNOCKED AGAINT, STILL NO ANSWER.
5-24-01     6.00AM-7.45AM #2    AS THE DRIVER WAS SITTING IN THE DRVIVEWAY. A YOUNG MAN CAME OUT OF THE HOUSE, WE ASKED FOR MR PRIDER. THE YOUNG MAN STATED HE WAS TREVOR’S SON AND TREVOR WAS NOT HERE. WE GAVE THE SON ALL THE DOCUMENTS AND TOLD HIM HE WAS SERVED ON BEHALF OF HIS FATHER AND HIS FATHERS COMPANIES. AS THE DRIVER WAS PULLING OUT OF THE DRIVEWAY MRS. PRIDER WAS RUNNING TOWARDS HIM WITH THE DOCUMENTS IN HER HANDS SAYING SHE WOULD NOT ACCEPT ANY DOCUMENTS FOR HER HUSBAND AND TRIED TO SHOVE THE PAPERS THROUGH THE WINDOW. THE DRIVER STATED ONCE AGAIN THAT THE DOCUMENTS WERE SERVED.
DESCRIPTION OF MR PRIDER’S SON (Male/Cauc./22yrs./5’10”/160Lbs./Brn. Hair/Brn. Eyes/)
DESCRIPTION OF MRS. PRIDER (Female/Cauc./57yrs./5’6”/125Lbs/Blnd/Grey hair/Blue Eyes)
Mr Greenberg’s first affidavit also included information relating to the default judgment. It was said that the judgment in default was entered against the Californian defendants on 1 May 2002 by Judge Raymond J Ikola. As earlier noted, the California judgment records that the defendants were properly served with the proceedings and that the plaintiffs recover from the defendants, the sum of US$2,625,000.00, with interest and punitive damages in the amount of US$13,125,000.00 and costs.
Second Affidavit of Alan Asher Greenberg
The tender of the second affidavit of Alan Greenberg sworn on 3 September 2003 was not opposed. There were no qualifications to its admission.[10]
[10]However, it should be noted that during final submissions defence counsel claimed that this affidavit’s reception was subject to the same qualifications as had been expressed with respect to Mr Greenberg’s first affidavit.
This affidavit and annexures established that 27 documents described as ‘originating documents’ were forwarded to 25732 Bucklestone Court, Laguna Hills, California by first-class mail, postage prepaid between 24 May 2001 and September 2001 from Santa Ana California. The originating documents were attached as annexures to Mr Greenberg’s second affidavit. Mr Greenberg stated that none of the originating documents were returned to the sender.
The 27 originating documents annexed included:
-Notice of Relocation of Department for All Purposes - which included a heading citing Trevor L Prider as defendant to a matter before the Superior Court of California from the Attorneys for the Plaintiffs, Benefit Strategies Group Inc and others.
-Notices of Depositions citing Trevor L Prider as defendant to a matter before the Superior Court of California from the Attorneys for the Plaintiffs, Benefit Strategies Group Inc and others. These included a Notice of Deposition of Bridget Prider and Susan Prider.
-‘Deposition subpoenas’ to produce business records for Trade Direct Corporation, citing ‘Trade Direction Corporation et al’ as a party and including Trevor L Prider’s name and address;
-Request for entry of default judgement citing Trevor L Prider as defendant to a matter before the Superior Court of California;
-A Notice of Evaluation Conference which includes a heading citing Trevor L Prider as defendant to a matter before the Superior Court of California from the Attorneys for the Plaintiffs, Benefit Strategies Group Inc and others.
-Notices of Depositions requesting the production of documents and records citing Trevor L Prider as defendant to a matter before the Superior Court of California from the Attorneys for the Plaintiffs, Benefit Strategies Group Inc and others.
Defendant’s Evidence
Counsel for Mr Prider tendered affidavits of Mr Prider,[11] Bridget Anne Margaret Prider (Mrs Prider)[12] and Ian Michael Prider (Ian Prider).[13]
Bridget Anne Margaret Prider
[11]Affidavits of Trevor Laurence Prider sworn 23 May 2002, 23 July 2003; 7 October 2003; 22 December 2003, 23 April 2004
[12] Affidavit of Bridget Anne Margaret Prider sworn 23 July 2003
[13] Affidavit of Ian Prider sworn 7 October 2003
Bridget Prider is Mr Prider’s wife. She was resident at 25732 Bucklestone Court at the time of alleged service on 24 May 2001. In her affidavit of 23 July 2003 she stated:
The [originating documents referred to in Mr Greenberg’s first affidavit] were never served, as alleged by [the process servers], upon me or, as I understand, any other member of the household (being Mr Prider and our daughter) at 25732 Bucklestone Court, Laguna Hills, California.
As to the alleged service of the [originating documents] on 24 May 2001, Mr Prider and I did not then have a 22 years old son fitting the description given by [the process servers ] and none of our three sons could have been taken to be of that age or description. The youngest and only one living in California at that time (a number of kilometres away in Irvine) was then 34 years of age.
As to the statement made by [the process server] that, following the alleged service on my 22 year old son (whom I deny existed), I ran down the driveway and attempted to “shove the papers through the window” of the process servers’ car, this is simply wrong. I did no such thing as I never received the [originating documents]. I do not specifically recall where I was on 24 May 2001.
Bridget Prider further stated that she did not recall seeing documents arrive by post at Bucklestone Court resembling the ‘27 originating documents’.
It should be observed that the process servers did not claim to have served any process on Mr Prider, Mrs Prider, their son Ian or their daughter Chantelle Prider. However the process servers did claim to have served a male person, caucasian, aged 22 years, 5’10” in height, 160lb in weight, with brown hair and brown eyes and who claimed to be Mr Prider’s son.
Ian Michael Prider
Ian Michael Prider is a son of Mr Prider. In his affidavit sworn 7 October 2003 he stated:
The [originating documents referred to in Mr Greenberg’s first affidavit] were never served upon me or, as I understand from discussions with Mr Prider, Mrs Prider and my sister Charlene Leanne Prider, any of them as members of the then (May 2001) household at 25732 Bucklestone Court, Laguna Hills, California.
As to the alleged service of the Documents by [the process servers] at 7am on 24 May 2001, upon a 22 year old male at Bucklestone Court claiming to be the son of Mr and Mrs Prider, none of their 3 sons could have been taken to be of that age or description. I am the youngest of their three sons and the only one who was living in California at the time. I was then 34 years of age, with receding black hair.
My residence on 24 May 2001 was at 339 Duranzo Aisle Irvine, approximately 21 km north of Bucklestone Court. I believe that at 7am that day, I was in bed with my wife at my house in Irvine.
I never spent the night at Bucklestone Court.
Again it is to be observed that the process servers claimed only to have served a male person who claimed to be Mr Prider’s son.
Affidavits of Mr Prider
In an affidavit of 23 July 2003 Mr Prider stated that:
The Californian proceedings were never personally served on me or any members of my family prior to the entry of the default judgment on 1 May 2002.
In relation to the information recorded on the proof of service document, Mr Prider stated:
Both [the process servers] state that the Documents were served on an adult member of the household, being a 22 year old male Caucasian claiming to be my son.
At the time of the alleged service, there was one only of my three sons who was resident in California, however he was 34 years old and lived in Irvine, a number of miles away. I am informed by him and verily believe that he was not at Bucklestone Court at the alleged time of service and has never been served with the Documents.
I do not know who the person allegedly claiming to be my son and handed the Documents could have been.
At the time the Documents were allegedly served at Bucklestone Court, I was travelling in Europe and the United States on business. I returned to Laguna Hills in early June 2001.

It is to be noted that at the relevant time Mr Prider employed a live-in martial arts expert. The gender, name, age and address of this person have not been disclosed by Mr Prider to this court.
In respect of the service of the 27 originating documents by first class mail, Mr Prider stated:
Neither I, nor as I understand any member of my household, ever received any documents fitting that description.
Mr Prider asserted that a number of threats had been made to his family during 2001. He said that the incidents included a telephone call from a person who threatened the life of his daughter if funds were not paid in seven days; a voice mail message threatening his daughter’s life; an intruder entering the property on three separate occasions and two house break-ins resulting in police attendance:
Following the telephone calls … I arranged for a martial arts expert to ‘live in’ at Bucklestone Court and also borrowed a Pit-Bull Terrier from a friend to guard the property. Neither my wife nor I would let our daughter go outside without one of us or another member of the family being present.
Due to the continual safety concerns, we decided to leave California and have not returned since, even when I found out about the California Proceedings from Ms Stacey Mueller in September 2001 (she had contacted me because she had been subpoenaed to give evidence in the California Proceedings).
Mr Prider’s affidavit of 23 July 2003 also claimed that the plaintiffs in the California proceedings made fraudulent representations to the Californian Court. In particular, Mr Prider disputed the accuracy of evidence given in declarations by Messrs Synder and Stewart in the California proceedings.
Evidence of Mr Prider - Ability to Provide Security
As earlier observed, an affidavit of means sworn 22 December 2003 was relied on by Mr Prider in the context of a discussion of an undertaking not to dispose of any of his assets during the currency of the present proceedings. Mr Prider was cross-examined and his credit attacked.
Mr Prider listed his ‘assets in Australia’ at that time as being an account with Bank SA containing approximately $1,800.00 and clothes and personal effects of an approximate value of $2,000.00. He also stated that he was the registered owner of a 1989 Rolls Royce, with an approximate value of $60,000.00. He claimed that although the vehicle was registered in his name, the beneficial owner of the vehicle was Susan Prider:
Shortly after Ian and Susan had moved out to Australia in May 2001 the car was exported by me from the United States to Australia and it was necessary for the car to be registered in Australia in my name, as the shipper, for this purpose. The car remains in my possession.
Mr Prider claimed that he no longer owned a shared in the capital of Barony Holdings Pty Ltd, despite the fact that he was listed as a current shareholder. He stated:
As a precondition to Barony obtaining finance from Liberty Funding Pty Ltd in April 2003, I agreed to transfer my shareholding in Barony to my son Ian. I am not a director of Barony. I ceased to be a director in 1998. My wife Bridget was also required by Liberty Funding to resign from the Board of Barony. Barony is now owned by Bridget and my sons, Lindsay and Ian, in equal shares. At present, the directors are my sons Gregory and Lindsay.
Mr Prider asserted that as at December 2003 he was a beneficiary of ‘The Barony of Ballintober Trust’ – a discretionary trust with Barony as trustee. He explained that Barony held all of its assets, including the Mt Breckan property at Victor Harbor as the trustee. It was further asserted that Mr Prider was not the beneficiary of any other trusts established in Australia.
Mr Prider claimed that he had no regular income. It was said Mrs Prider was paid a salary of $300 per week by Barony for services that they rendered in relation to a reception business operated at Mt Breckan.
On 22 December 2003 Mr Prider signed an undertaking not to dispose of any asset, held jointly or severally, without an order of the court. This undertaking was qualified. Mr Prider accepted an amount of $400.00 per week in payment of his ordinary weekly living expenses. In addition he proposed to pay legal expenses incurred in relation to this action and to pay other debts as and when they fell due.
There were serious conflicts between Mr Prider’s affidavit of assets of 22 December 2003, which asserted that he had few assets of little value and no regular income. The evidence before the Court during cross examination disclosed that Mr Prider had considerable financial resources available to him.
Mr Prider failed to disclose in his affidavit of assets his involvement in Gooyea Station, a Queensland property. Evidence before the Court established that the Queensland property was purchased with the assistance of approximately $400,000.00 provided by Mr Prider. This amount was paid to the financing banker from the United States in two tranches. The payments were made at the direction of Mr Prider from monies apparently under his control.
When giving evidence, Mr Prider at first denied any knowledge of the financial arrangements for the purchase of the Queensland property and denied lodging funds with financiers to facilitate the purchase. Later he admitted that he provided monies used to purchase the Queensland property. This was a substantial transaction in which Mr Prider arranged for more than $400,000.00 to be sent from the United States of America to be used for the purchase of the Queensland property. Mr Prider claimed that his interest in the acquisition had not been recorded. He said that he had made no attempt to recover the monies invested in the property.
Mr Prider made no reference to an interest in monies provided to purchase the Victor Harbour property known as Mt Breckan. Substantial monies were provided towards the purchase price of Mount Breckan through an overseas trust of which Mr Prider was a trustee and beneficiary.
I am satisfied that Mr Prider misled the court in his affidavit evidence concerning his assets in material respects. He failed to disclose his interest in in Gooyea station and his interest in Mt Breckan. I am satisfied that he did so with a view to frustrating a proper enquiry into his financial resources.
Mr Prider deliberately misled the court. He was an unreliable witness. His performance under cross examination was evasive. He was a dissembler. I am satisfied that Mr Prider deliberately set about creating a false impression of his financial position.[14] The court is unable to place any reliance or weight on Mr Prider’s uncorroborated evidence.
Consideration of the Issues
[14]In reaching these conclusions I have had regard to the requisite burden of proof - Briginshaw v Briginshaw (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Fraud
As earlier observed, two frauds have been alleged by Mr Prider: a fraud in relation to service and a fraudulent accounts given in declarations supporting the claim before the Californian Court.
Fraudulent Service
As earlier observed, the California proceedings proceeded on the basis that service was effected in accordance with the relevant rules of Court. A default judgment was entered in favour of the plaintiffs. The Court found that:
-The Defendants were properly served with copies of the Summons, Complaint, and a Notice of Reservation of Right to Seek Punitive Damages on Default Judgment.
-The Defendants failed to answer the Complaint or appear and defend the action within the time allowed by law.
-The Defendants’ default was entered by the clerk upon Plaintiffs’ application.
Default judgment was entered in accordance with section 585 of the Californian Code of Civil Procedure which relevantly provides:
Judgment may be had, if the defendant fails to answer the complaint, as follows:
…
In other actions, if the defendant has been served other than by publication, an no answer, demurrer, notice of motion to strike (of the character hereinafter specified), notice of motion to transfer pursuant to Section 396(b), notice of motion to dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5 of Title 8, notice of motion to quash service of summons or to stay or dismiss the action pursuant to Section 481.10 or notice of the filing of a petition for writ of mandate as provided in Section 418.10 has been filed with the clerk or judge of the court within the time specified in the summons, or such further time as may be allowed, the clerk, or the judge if there is no clerk, upon written application of the plaintiff, shall enter the default of the defendant. The plaintiff thereafter may apply to the court for the relief demanded in the complaint; the court shall hear the evidence offered by the plaintiff, and shall render judgment in his or her favor for such sum (not exceeding the amount stated in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115), as appears by such evidence to be just.
The California Court found service on the defendants in the California proceedings to have been in accordance with sections 415.20(b) and 416.30 of the Californian Code of Civil Procedure which relevantly provide:
415.20 (b) If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80 or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presences of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof; and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10^th day after the mailing.
416.90 A summons may be served on a person not otherwise specified in this article by delivering a copy of the summons and of the complaint to such a person or to a person authorized by him to receive service of process.
The process servers in accordance with Californian procedure assert that they went to the home of Trevor Prider and served documents on a male person apparently over 18 years of age. According to the process servers: the male person served claimed to be Mr Prider’s son and a short time later a woman the process servers identified as Mrs Prider came from the premises and thrust the documents served on the male person through the window of the process servers’ car.
Mrs Prider was said to be known to the process servers. On 23 May 2004, during an earlier attempt to effect service, the process servers had a discussion about Mr Prider’s whereabouts with a woman who claimed to be Bridget Prider, Mr Prider’s wife. This was said to be the same woman who attempted to thrust documents through the process servers vehicle window on 24 May 2001.
Counsel for Mr Prider challenged the finding of the California Court that service was effective on the basis that fraud occurred on the part of the process servers.
In his July 2003 affidavit, Mr Prider stated that another person was residing at the premises at the time of the alleged service. This person was hired by Mr Prider as a live in martial arts expert and security guard to protect the premises and to protect Mrs Prider and Chantelle. A pit bull terrier had also been acquired. Mr Prider has not identified by gender, name or address or any other means, the resident martial arts expert.
In her affidavit dated 23 July 2003 Mrs Prider does not refer to the martial arts expert resident at the property. She makes no reference to a pit bull terrier. She states that she was not present at Bucklestone Court on 24 May 2001 and was not involved in any incident involving documents being ‘shoved’ through a car window. Her affidavit does not address the meeting alleged by the process servers to have occurred on 23 May 2001.
As earlier observed it was said by the plaintiffs that 27 originating documents were later delivered by first class prepaid post to 25732 Bucklestone Drive, Laguna Hills, California. This was supported by the affidavit of Alan Greenberg.
According to the evidence of the Mr Prider, at least one other woman was probably resident at Bucklestone Drive at the time of the alleged service. This woman was identified as Stacey Mueller. Mr Prider states that he received Californian court documents in September 2001. These documents were alleged to have been served on Ms Mueller in September 2001.
As earlier observed, the 27 originating documents said to have been sent to Mr Prider included notices of depositions, deposition subpoenas, notice of an evaluation conference and a request for entry of default judgment. A number of the documents clearly displayed the title of the action and indicated that Trevor Laurence Prider was a defendant to the California proceedings. Other documents indicate that dispositions had been and were being taken in relation to the California proceedings. Those proceedings involved his wife and daughter-in-law in their capacity as company directors.
Mr Prider does not directly deny that the documents had been received at Bucklestone Court by mail. As the documents were not returned to the address of the sender, it may be concluded that they were received at the Bucklestone Court address. It would be expected that they would have been returned to the sender. This did not occur. It is against this background that the question of whether a triable case of fraud on the part of the process servers has been established is to be considered.
In his affidavit of 23 July 2003, Mr Prider does not deny that service of the documents on a member of the household occurred as described by the process servers. The affidavit merely asserts that Mr Prider and members of his family were not served.
Mr Prider does not deny that the martial arts expert was living at 25732 Bucklestone Court and was present on 24 May 2001. Mr Prider does he deny that this person was served with the California proceedings on 24 May 2001. No affidavit has been filed by the martial arts expert. As earlier observed Mr Prider has not identified that person.
Mrs Prider’s affidavit of 23 July 2003 related to events occurring after the service on the male person on 24 May 2001. Mrs Prider does not deny that personal service was effected on the marital arts expert. She denies that she ran down the driveway and attempted to ‘shove’ the papers through the window. She does not deny seeing the process servers on 23 May 2001. She cannot recall her whereabouts on 24 May 2001.
Contrary to what has been asserted by counsel for Mr Prider, there appears to be limited direct conflict arising from the evidence in relation to service. The information provided by the process servers of service on a member of the household at 25732 Bucklestone Court is not directly denied by Mr Prider or the other deponents.
No arguable case of fraud by the process servers has been made out. In summary my reasons are as follows:
-the process servers claim to have served an adult male of the household at Bucklestone Court. The Priders do not deny that such service occurred.
-There was a live in martial arts expert at Bucklestone Court at that time. That person would appear to be a member of the household. The Priders do not identify that person.
-in the statements filed in court by the process servers, a description of the person served is provided with particularly. There is no suggestions that the live in martial arts expert did not meet his description.
-the 27 originating court documents sent by prepaid post to Bucklestone Court were not returned to sender. There is no direct denial that the documents were received by post at that address.
-the evidence from Mr Prider suggests that another woman was also living at the Bucklestone Court premises apart from Mrs and Mr Prider.
An arguable case of fraud by the process servers has not been established. The evidence falls far short of what is necessary to demonstrate that there is a triable issue. No arguable defence has been made of fraud in relation to service.
Fraudulent Declarations in the Californian Court
Counsel for Mr Prider submitted that the plaintiffs in the California proceedings provided fraudulent declarations to the Court. In Mr Prider’s affidavit of 23 July 2003 he challenges Mr Synder’s California declaration that on 29 November 1999, Mr Prider and Ms Reed of Arrowhead Trust met Mr Synder at the offices of Trade Direct Corporation. Mr Prider stated that he had no recollection of meeting with Mr Synder at the offices of Trade Direct Corporation.
Contrary to Mr Synder’s affidavit, Mr Prider asserts that he did not make any representations to Ms Reed or any other representative of Arrowhead concerning his past success in trading medium term notes or the type of instruments that may be purchased on Arrowhead’s behalf if they chose to invest with Trade Direct Corporation. Mr Prider further denied being aware of any discussions or negotiations concerning the investment by Arrowhead with Trade Direct Corporation.
Mr Prider also challenged the declaration of Mr Stewart placed before the Californian Court. He agreed that in late 1999 he met briefly with Mr Stewart and Mr Tschebaum to discuss the capabilities of some of trading equipment but denied making representations to Mr Stewart or any other representative of Astrotech concerning his past trading success in medium term notes or the types of instruments that may be purchased on Astrotech’s behalf.
Mr Prider has asserted a different account to that given on oath by Mr Synder and Mr Stewart. The suggestion of a conflict of testimony falls far short of establishing an arguable case of fraud. Counsel for Mr Prider did not advance any oral submissions in support of this complaint. There is no triable issue on the California Court being misled by fraudulent testimony.
Public Policy Issues
Punitive Damages
The judgment of by the California Court included an award of punitive damages in the amount of US$13,125,000.00. It was submitted by counsel for Mr Prider that should the plaintiffs be otherwise successful, this Court should refuse to enforce the judgment to the extent that it included an award of punitive damages. It was said that an award of punitive damages in an amount five times the assessed compensatory damages is an affront to Australian law and to public policy. Attention was drawn to Adams v Cape Industries Pty Ltd[15] where Scott J remarked that proceedings in a foreign court would not be enforced where they ‘offend against English views of substantive justice’.
[15] [1990] Ch D 433 at 497
It was accepted by counsel for the plaintiffs that the award of punitive damages would not be enforced by an Australian court. The plaintiffs did not seek judgment in relation to that part of the Californian judgment.
Joint and Severable Damages
The judgment award in favour of the plaintiffs in the Californian proceedings was in the form of a joint and several judgment. This does not accord with Australian law. Each plaintiff had its separate claim. Benefit Strategies and Astrotech had no entitlement to monies due to the other.
Counsel for the plaintiffs conceded that this Court should only enforce the California judgment in so far as it related to the entitlement of each separate plaintiff. Counsel for the plaintiffs submitted that this Court should enforce the Californian judgment against Mr Prider by separately awarding judgment in favour of Benefit Strategies for US$1,575,000 with interest and costs and judgment in favour of Astrotech for US$1,050,000, with interest and costs.

This submission should be accepted. The form of the judgment should not stand in the way of recognition and enforcement.
Conclusion
A final and conclusive judgment for a certain sum and by a court acting within jurisdiction is prima facie entitled to be enforced in Australia.
Mr Prider has failed to demonstrate that there is a serious issue to be tried. No arguable case has been demonstrated in relation to the claim of service fraud. No other arguable case of fraud has been advanced. Mr Prider is not entitled to have the merits of the case re-examined.
In the circumstances, it is appropriate to grant the limited relief now sought by the plaintiffs as final relief. In reaching this conclusion I have had regard to the fact that a summons for immediate relief will often be an inappropriate method of enforcing a judgment a defence has been raised and particularised. I have had regard to the principle that the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.[16] The effect of this principle was expressed with added emphasis in Webster v Lampard where Mason CJ, Deane and Dawson JJ observed:[17]
The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried’. … Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact.
Given the nature of the issues raised by Mr Prider, I have been very cautious when considering the plaintiff’s claim for immediate relief.
[16] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99
[17] (1993) 177 CLR 598 at 602 – 603
I am satisfied that there is no credible defence and no serious issue to be tried. The plaintiffs are entitled to immediate relief by way of final judgments. Benefit Strategies Group Incorporated is entitled to judgment in an amount being the Australian dollar equivalent of US$1,575,000.00 together with interest and costs. Astrotech Enterprises Incorporated is entitled to judgment in an amount being the Australian dollar equivalent of US$1,050,000.00 with interest and costs. I will hear the parties as to the precise terms of the orders to be made.