Clare Elizabeth Marks v Australia and New Zealand Banking Group Ltd

[2014] HCASL 179

CLARE ELIZABETH MARKS

v

AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD

[2014] HCASL 179
B25/2014

1. The applicant was at material times registered proprietor of land in the State of Queensland.  A company called Telesto Investments Ltd ("Telesto") borrowed from the respondent ("the Bank").  The loan was secured by a mortgage over the land in Queensland and the applicant (and her husband) guaranteed the performance of Telesto's obligations under the loan agreement.  The guarantee was governed by the law of Singapore and the applicant, as guarantor, submitted "to the non‑exclusive jurisdiction of the courts of Singapore or of any other court as the Bank may elect".

2. Telesto defaulted under the loan agreement.  The Bank brought proceedings against the applicant in the High Court of the Republic of Singapore.  The Bank's writ of summons and statement of claim were served on the applicant in Queensland.  The applicant did not appear in the proceedings and the Bank obtained judgment in default of appearance.

3. In the meantime, after commencement of the Singapore proceedings but before service of those proceedings on the applicant, the Bank brought proceedings in the Supreme Court of Queensland seeking possession of the land in Queensland.

4. The default judgment the Bank had obtained in the Singapore proceedings was set aside on condition that the applicant enter an appearance and file a defence.  The applicant took both of those steps but the Bank succeeded in its appeal against the setting aside of judgment (albeit that the judgment given was varied) and the applicant's memorandum of appearance was struck out.

5. The Singapore judgment (as varied) was registered by order of Daubney J of the Supreme Court of Queensland made under Pt 2 of the Foreign Judgments Act 1991 (Cth). The applicant applied to the Supreme Court of Queensland to have the registration set aside. That application was dismissed by Mullins J, and the Court of Appeal of the Supreme Court of Queensland (Muir and Gotterson JJA and Daubney J) dismissed an appeal by the applicant against the orders made by Mullins J.

6. The applicant now seeks special leave to appeal to this Court. Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

7. The applicant submits that she did not submit to the jurisdiction of the courts of Singapore and that the claims which the Bank made in the High Court of Singapore could, and should, have been made in the Bank's proceedings in the Supreme Court of Queensland seeking possession of the land in Queensland.

8. An appeal to this Court would not enjoy prospects of success sufficient to warrant a grant of special leave.

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
15 October 2014 S.M. Crennan