Boele v Norsemeter Holding AS - [2002] NSWCA 363

NEW SOUTH WALES COURT OF APPEAL

CITATION: Boele v Norsemeter Holding AS [2002] NSWCA 363

FILE NUMBER(S):
40476/02

HEARING DATE(S): 3 and 4 October 2002

JUDGMENT DATE: 13/11/2002

PARTIES:
Pieter Boele - Appellant
Norsemeter Holding AS - Respondent

JUDGMENT OF: Handley JA Beazley JA Giles JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 50173/01

LOWER COURT JUDICIAL OFFICER: Einstein J

COUNSEL:
A W Street SC & F A Rogers - Appellant
Dr A S Bell - Respondent

SOLICITORS:
Hogan Geikie Poole - Appellant
Gadens - Respondent

CATCHWORDS:
Action on foreign judgment - defendant aware of foreign trial in which he was successful but not aware of appeal reversing the result - application for summary judgment in action on foreign judgment - question of defendant submitting to jurisdiction of appellate court - question of natural justice in relation to appellate proceedings - whether arguable case on either question - whether defendant set up "mode of notification" as to appellate proceedings such that notice to former foreign lawyers satisfied requirements of natural justice - whether foreign procedure established whereby notice to foreign lawyers was sufficient - held arguable case that did not receive natural justice - summary judgment not available. D

LEGISLATION CITED:

DECISION:
(1) Grant leave to appeal and direct notice of appeal be filed within 7 days; (2) Appeal allowed; (3) Set aside order 1 made by Einstein J on 1 May 2002; (4) Plaintiff's notice of motion filed on 23 November 2001 dismissed with costs; (5) Appellant pay respondent's costs of the application for leave to appeal and the appeal, and have a certificate under the Suitors Fund Act if qualified.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40476/02
ED 50173/01
HANDLEY JA
BEAZLEY JA
GILES JA
Wednesday 13 November 2002

BOELE v NORSEMETER HOLDING AS

Judgment

HANDLEY JA: I agree with Giles JA.
BEAZLEY JA: I agree with Giles JA.
GILES JA: Norsemeter Holding AS (“Norsemeter”) obtained a judgment against Mr Pieter Boele in the Borgarting Court of Appeals in Norway. In proceedings in the Supreme Court of New South Wales it sued on the transaction underlying that judgment and on the judgment itself. It successfully moved for summary judgment in its claim on the foreign judgment. This was an application for leave to appeal from the summary judgment. Full argument was heard on the application, so that if leave to appeal were granted the appeal could immediately be determined.
Although technically interlocutory, the order for summary judgment effectively concluded the proceedings. The judgment against Mr Boele, in Swedish Kroner and Norwegian Kroner, is for a large amount, of the order of $2,500,000. Norsemeter did not oppose leave to appeal, and leave to appeal should be granted.
Facts
The evidence was by affidavits of a representative of Norsemeter’s Australian solicitors, an affidavit of Mr Boele, and the tender of some additional documents. There was no cross-examination. The facts as set out below are…

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.

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Details

Case: [2002] NSWCA 363
Decision Date: 13 November 2002

CaseChat Overview and Summary

The case of *Boele v Norsemeter Holding AS* involved an action brought in Australia to enforce a foreign judgment obtained by Norsemeter Holding AS against Mr Boele. Mr Boele, an Australian resident, had been a shareholder in a Swedish company, ASFT, and along with other shareholders, had sold his shares to Norsemeter. A dispute arose concerning this sale, leading Norsemeter to commence proceedings in the Oslo City Court in Norway. Mr Boele engaged Swedish and Norwegian lawyers to represent him and the other shareholders. The Oslo City Court proceedings concluded, and Mr Boele was informed that the case was a success. Subsequently, he terminated his engagement of his lawyers, believing the matter to be finalised. However, Norsemeter appealed the Oslo City Court's decision, and the appeal reversed the initial outcome, resulting in a judgment against Mr Boele. Norsemeter then sought to enforce this reversed judgment in Australia via summary judgment.

The central legal issues before the court were whether Mr Boele had submitted to the jurisdiction of the Norwegian appellate court and whether he had received natural justice in relation to the appellate proceedings. Specifically, the court had to consider if Mr Boele had established a "mode of notification" regarding the appeal proceedings such that notice to his former Norwegian lawyers would satisfy the requirements of natural justice, or if the foreign procedure itself established such a method of notification. The court was required to determine if Mr Boele had an arguable case on either of these questions, which would preclude the granting of summary judgment.

The court reasoned that Mr Boele had an arguable case that he had not received natural justice. His termination of his lawyers' engagement, based on the belief that the initial proceedings were finalised and his instruction that any future action required his explicit approval after being fully informed of the facts, suggested he was not aware of the appeal. The court found that the effectiveness of the notice given to his former lawyers in the context of the appeal was a matter that required further investigation at a trial, rather than being summarily determined.

Consequently, the court allowed the appeal against the summary judgment order. The order for summary judgment made by Einstein J was set aside, and Norsemeter's notice of motion was dismissed. Mr Boele was granted leave to appeal, and the court directed that notice of appeal be filed within seven days.

Orders

Orders of the court

(1) Grant leave to appeal and direct notice of appeal be filed within 7 days; (2) Appeal allowed; (3) Set aside order 1 made by Einstein J on 1 May 2002; (4) Plaintiff's notice of motion filed on 23 November 2001 dismissed with costs; (5) Appellant pay respondent's costs of the application for leave to appeal and the appeal, and have a certificate under the Suitors Fund Act if qualified.

Background

Background to the litigation

Although technically interlocutory, the order for summary judgment effectively concluded the proceedings. The judgment against Mr Boele, in Swedish Kroner and Norwegian Kroner, is for a large amount, of the order of $2,500,000. Norsemeter did not oppose leave to appeal, and leave to appeal should be granted. Facts The evidence was by affidavits of a representative of Norsemeter’s Australian solicitors, an affidavit of Mr Boele, and the tender of some additional documents. There was no cross-examination. The facts as set out below are as evidenced and found in the motion for summary judgment. If addressed more fully at a trial, they may be differently found. Mrs Eva Graflind, Mr Fredrick Graflind and Mr Boele were the shareholders in the Swedish company Airport Surface Friction Tester AB (“ASFT”). In May 1998 the shareholders agreed to sell their shares to Norsemeter. The agreement included a provision -“This contract is governed by Norwegian law. The parties agree to Oslo byrett (Oslo City Court) as the legal venue” Dispute arose in relation to the sale of the shares. In December 1998 Norsemeter brought proceedings against the shareholders in the Oslo City Court, claiming compensation from the shareholders for breach of contract. Mr Boele, who at all material times lived in Australia, joined in engaging Advokatfirman Vinge KB (“Vinge”), Swedish lawyers, and Thommessen Krefting Greve Lund AS (“TKGL”), Norwegian lawyers, to act for the shareholders. He gave a power of attorney to Vinge which authorised the appointment of a sub-attorney, pursuant to which Vinge appointed TKGL. The copy of the power of attorney in evidence was not fully legible. It relevantly gave authority “to bring and conduct actions before courts”, “to accept service of notices and other communications, but not writs”, and “to represent the interests (?) of [Mr Boele] in all other respects to Norsemeter A/S … or other (illegible) concerned regarding (untranslated Swedish and the name of ASFT)”. In March 1999 a defence was filed in the proceedings on behalf of Mr Boele and the other shareholders, and in April 1999 a cross-claim was filed in the proceedings on their behalves claiming compensation from Norsemeter for breach of contract. In May and October 1999 the proceedings were heard in the Oslo City Court. Mr Boele and the other shareholders were represented at the hearing in May by Mr Gerhard Holm of TKGL and Mr Krister Azelius of Vinge and at the hearing in October by Mr Holm. After the hearings had concluded Mr Boele was told that “the case was a success”. In the belief that the proceedings were finalised, although in fact before judgment was given by the Oslo City Court, at the end of January 2000 he terminated for his part his engagement of Vinge and TKGL by “cancelling” his power of attorney “in relation to ASFT AB and the Norsemeter case”. The communication of the cancellation included, “Any action to be taken will be assessed on a case by case basis. Approval can only follow, by fully informing me of the facts”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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