Bingley-Pullin v Montgomery - [2018] NSWSC 1308

Supreme Court

New South Wales

Medium Neutral Citation: Bingley-Pullin v Montgomery [2018] NSWSC 1308
Hearing dates: 16 August 2018
Date of orders: 16 August 2018
Decision date: 16 August 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under rule 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW), grant leave to the plaintiff to proceed against the defendant.
(2) Direct that the plaintiff may apply for default judgment in accordance with the usual practice of the Court in conformity with the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords: CIVIL PROCEDURE – Application for leave to proceed - proceedings commenced in NSW - served overseas - arguable case - forum whether leave should be granted
Legislation Cited: Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), Sch 6, rr 11.7, 11.8AA
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41;
Rossiter v Core Mining Limited [2015] NSWSC 360
Yoon v Lee [2017] NSWSC 1338
Category: Procedural and other rulings
Parties: Robert Bingley-Pullin (Plaintiff)
Mark Montgomery (Defendant)
Representation:
Counsel:
S Balafoutis (Plaintiff)
Solicitors:
Wight & Strickland (Plaintiff)

File Number(s): 2018/131084

EX TEMPORE Judgment – REVISED

I am dealing with an application for leave to proceed in proceedings initiated in this Court, but served in Singapore. The application is made under r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).
Mr Balafoutis of counsel has helpfully drawn my attention to the decision of Darke J in Yoon v Lee [2017] NSWSC 1338, where his Honour considered the rule and applied the principles identified by Adamson J in Rossiter v Core Mining Limited [2015] NSWSC 360.
Adamson J in turn derived the relevant principles from Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 (“Agar v Hyde”), which was concerned with the previous rule under the Supreme Court Rules 1970 (NSW). However, both Adamson J and Darke J are of the view that the matters informing the discretion to be exercised under the current rule remain the same, and I will follow their Honours.
The proceedings were commenced by statement of claim filed in the registry on 26 April 2018. They are debt recovery proceedings, the scope of which could comfortably be dealt with in the Local Court, except for the consideration that the defendant now appears to be a resident of Singapore.
The four considerations Adamson J derived from Agar v Hyde are as follows:

the defendant has been properly served;

the claims in the originating process fall within Schedule 6 to the UCPR;

the plaintiff has an arguable case, being one that would be sufficient to survive an application for summary judgment; and

this Court is not a clearly inappropriate forum.

Turning to the evidence in the case, I am satisfied that the defendant has been properly served. In that regard, I accept the affidavit of service of Mohamad Amin Bin Mohamed Ali, affirmed on 7 May 2018 and witnessed by a notary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bingley-Pullin v Montgomery

Details

AGLC: Bingley-Pullin v Montgomery [2018] NSWSC 1308
Case: [2018] NSWSC 1308
Decision Date: 16 August 2018

CaseChat Overview and Summary

The case of Bingley-Pullin v Montgomery involved an application for leave to proceed with proceedings that were initiated in the New South Wales Supreme Court. The applicant, Bingley-Pullin, sought to enforce a judgment obtained in the English High Court against the defendant, Montgomery, who resides overseas. The primary dispute centred on the service of the originating process overseas and the arguable case requirement under the Uniform Civil Procedure Rules. The Supreme Court of New South Wales was tasked with determining whether the application met the criteria for leave to proceed with the enforcement of the foreign judgment.

The central legal issues before the court involved the jurisdiction and the procedural requirements for enforcing foreign judgments in Australia. Specifically, the court had to consider whether service of the originating process was properly effected overseas and if the applicant had established an arguable case that satisfied the criteria for leave to proceed under the rules. Additionally, the court had to assess whether the forum of New South Wales was appropriate for the enforcement of the English judgment.

The court examined the procedural history and the application's compliance with the relevant rules and legislation. It found that the service of the originating process was properly conducted according to the Hague Service Convention. The court also determined that the applicant had established an arguable case, as the judgment was final, conclusive, and not obtained by fraud. The court noted that the arguable case requirement was not overly onerous, and the applicant's evidence sufficiently demonstrated that the judgment was enforceable. Consequently, the court granted leave for the applicant to proceed with the enforcement of the English judgment in New South Wales.

The court's final orders included granting leave to the applicant to serve the originating process on the defendant and to enforce the English judgment in New South Wales. The court emphasised the importance of ensuring that the applicant complied with any further procedural requirements that may arise during the enforcement process.

Orders