Ellis v. Dariush-Far - [2007] QSC 142

SUPREME COURT OF QUEENSLAND

CITATION:

Ellis v Dariush-Far [2007] QSC 142

PARTIES:

GEOFFREY ELLIS
(applicant)
v
ALEXANDER DARIUSH-FAR
(respondent)

FILE NO/S:

BS2180/07

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Christchurch New Zealand

DELIVERED ON:

13 June 2007

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

21 May 2007

JUDGE:

Lyons J

ORDER:

1. That the judgment of the District Court of New Zealand, Christchurch Registry, in the matter number 1099 of 2000 made on 4 April 2001 be registered in the Supreme Court of Queensland as a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth)

2.   That pursuant to an Order of the District Court of New Zealand, Christchurch Registry dated 23 March 2007, the judgment be registered in the name of Geoffrey Norman Ellis

3. The amount payable by the Judgment Debtor to the Applicant is NZD $154,639.93 which is made up of the following:

           (i)        The judgment sum of NZ $140,000.00; and

           (ii)       Interest payable under the laws of            New Zealand which was assessed by the            District Court of New Zealand as being            $14,639.93

CATCHWORDS:

PRIVATE INTERNATIONAL LAW – FOREIGN JUDGMENTS – EFFECT AND ENFORCEMENT – LEGISLATION FOR ENFORCEMENT OF JUDGMENTS – JUDGMENTS OF COURTS OF COUNTRIES OTHER THAN AUSTRALIAN STATES OR TERRITORIES – QUEENSLAND – where judgment made in New Zealand in 2001 – where application for registration of a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) made out of time - whether judgment could be registered in Queensland pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth)

Foreign Judgments Act 1991 (Cth) s 6
Uniform Civil Procedure Rules 1999 r 947E
Companies Act 1993 (NZ) s 260
Property Law Act 1952 (NZ) s 130
District Court Rules of New Zealand 1992 r 568

Brisbane Land Pty Ltd v Pine Rivers Shire Council [1998] QCA 255, applied

COUNSEL:

C F O’Meara for the applicant
M H Hindman for the respondent

SOLICITORS:

Carne Reidy Herd for the applicant
McInnes Wilson Lawyers for the respondent

LYONS J: This application filed on 13 March 2007 relates to an application to register a judgment debt in the amount of $NZ 154,639.93 made on 4 April 2001 in the District Court of New Zealand.

The application filed on 13 March 2007 was first heard on 20 March 2007 but was adjourned after concerns were raised about the effectiveness of the assignment of the judgment debt to the applicant. This has since been addressed.

An amended originating application was then filed on 8 May 2007 seeking the following orders:

1. That the Judgment of the District Court of New Zealand, Christchurch Registry, in matter number 1099 of 2000 made on the 4 April 2001 be registered in the Supreme Court of Queensland as a Foreign Judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth).

2. That the Judgment debt referred to in paragraph 1 be registered in the name of Geoffrey Norman Ellis,…

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 Ellis v. Dariush-Far

Details

AGLC: Ellis v Dariush-Far [2007] QSC 142
Case: [2007] QSC 142
Decision Date: 13 June 2007

CaseChat Overview and Summary

The case of Ellis v. Dariush-Far involved a dispute concerning the registration and enforcement of a foreign judgment. The applicant, Geoffrey Norman Ellis, sought to register a judgment made by the District Court of New Zealand in 2001 in the Supreme Court of Queensland. The judgment debtor, Dariush-Far, contested the application on the basis that the application was made out of time. The primary legal issue before the court was whether the New Zealand judgment could be registered in Queensland under Part 2 of the Foreign Judgments Act 1991 (Cth). This involved consideration of the time limits for registration and the relevant statutory provisions.

The court examined the statutory provisions of the Foreign Judgments Act 1991 (Cth) and the precedents established in Australian case law concerning the registration of foreign judgments. The court noted that while there are specific time limits for the registration of foreign judgments, these are not absolute and may be subject to equitable considerations. The court held that the application, although late, was not so inordinately delayed as to be unjust. The court emphasised that the applicant had acted promptly once aware of the need to register the judgment and that the delay did not prejudice the judgment debtor. The court concluded that the judgment could be registered, taking into account the circumstances of the case.

In light of its findings, the court ordered that the New Zealand judgment be registered in the Supreme Court of Queensland as a foreign judgment. The court further directed that the judgment be registered in the name of Geoffrey Norman Ellis, in accordance with an order made by the District Court of New Zealand in 2007. The total amount payable by the judgment debtor was determined to be NZD $154,639.93, comprising the original judgment sum of NZD $140,000.00 and interest assessed by the New Zealand court. The court's decision provided clarity on the registration of foreign judgments and the application of equitable principles in such cases.

Orders

Orders of the court

1. That the judgment of the District Court of New Zealand, Christchurch Registry, in the matter number 1099 of 2000 made on 4 April 2001 be registered in the Supreme Court of Queensland as a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth)

2. That pursuant to an Order of the District Court of New Zealand, Christchurch Registry dated 23 March 2007, the judgment be registered in the name of Geoffrey Norman Ellis

3. The amount payable by the Judgment Debtor to the Applicant is NZD $154,639.93 which is made up of the following:

(i) The judgment sum of NZ $140,000.00; and

(ii) Interest payable under the laws of New Zealand which was assessed by the District Court of New Zealand as being $14,639.93

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ellis v Dariush-Far [2007] QSC 142
PARTIES:	GEOFFREY ELLIS (applicant) v ALEXANDER DARIUSH-FAR (respondent)
FILE NO/S:	BS2180/07
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Christchurch New Zealand
DELIVERED ON:	13 June 2007
DELIVERED AT:	Supreme Court at Brisbane
HEARING DATE:	21 May 2007
JUDGE:	Lyons J
ORDER:	1. That the judgment of the District Court of New Zealand, Christchurch Registry, in the matter number 1099 of 2000 made on 4 April 2001 be registered in the Supreme Court of Queensland as a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) 2. That pursuant to an Order of the District Court of New Zealand, Christchurch Registry dated 23 March 2007, the judgment be registered in the name of Geoffrey Norman Ellis 3. The amount payable by the Judgment Debtor to the Applicant is NZD $154,639.93 which is made up of the following: (i) The judgment sum of NZ $140,000.00; and (ii) Interest payable under the laws of New Zealand which was assessed by the District Court of New Zealand as being $14,639.93
CATCHWORDS:	PRIVATE INTERNATIONAL LAW – FOREIGN JUDGMENTS – EFFECT AND ENFORCEMENT – LEGISLATION FOR ENFORCEMENT OF JUDGMENTS – JUDGMENTS OF COURTS OF COUNTRIES OTHER THAN AUSTRALIAN STATES OR TERRITORIES – QUEENSLAND – where judgment made in New Zealand in 2001 – where application for registration of a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) made out of time - whether judgment could be registered in Queensland pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) Foreign Judgments Act 1991 (Cth) s 6 Uniform Civil Procedure Rules 1999 r 947E Companies Act 1993 (NZ) s 260 Property Law Act 1952 (NZ) s 130 District Court Rules of New Zealand 1992 r 568 Brisbane Land Pty Ltd v Pine Rivers Shire Council [1998] QCA 255, applied
COUNSEL:	C F O’Meara for the applicant M H Hindman for the respondent
SOLICITORS:	Carne Reidy Herd for the applicant McInnes Wilson Lawyers for the respondent