Fletcher Steel v Moghe

[2006] NSWSC 425

CITATION:	Fletcher Steel v Moghe [2006] NSWSC 425
HEARING DATE(S):	9 May 2006
JUDGMENT DATE :	16 May 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The judgment dated 30 August 2005 of the High Court of New Zealand by which it was adjudged that the judgment debtor, Vijay Yeshwant Moghe pay Fletcher Steel Limited the sum of NZD $2,536.99 be registered under Part 2 of the Foreign Judgments Act 1991 (Cth); (2) The notice of motion filed 29 December 2005 is dismissed.; (3) The defendant is to pay the plaintiff’s costs of the summons filed 19 October 2005 and of the notice of motion.
CATCHWORDS:	Registration of foreign judgment - New Zealand High Court costs order
LEGISLATION CITED:	Foreign Judgments Act 1991 (Cth) - s 6 High Court Rules (NZ) - s 48E Uniform Civil Procedure Rules 2005 (NSW) - Rule 42.7.2
CASES CITED:	Boissiere v Brokner (1889) 6 TLR 85 Re Williams (1904) 2 N & S 183 Mighell v Sultan of Johore [1897] 1 QB 169
PARTIES:	Fletcher Steel Limited (Plaintiff) Vijay Yeshwant Moghe (Defendant)
FILE NUMBER(S):	SC 14865/2005
COUNSEL:	Mr M Kersey (Plaintiff)
SOLICITORS:	Henry Davis York (Plaintiff) Mr V Y Moghe (Defendant in person)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

TUESDAY, 16MAY 2006

14865/2005

FLETCHER STEEL LIMITED v VIJAY YESHWANT MOGHE

JUDGMENT (Registration of foreign judgment
- New Zealand High Court costs order)

1 HER HONOUR: By summons filed 19 October 2005 the plaintiff seeks to register the judgment dated 30 August 2005 of the High Court of New Zealand by which it was adjudged that the judgment debtor pay money to the judgment creditor be registered under Part 2 of the Foreign Judgments Act 1991 (Cth) (the Act) for the judgment debtor to pay the judgment creditor the sum of NZD$2,536.99. By notice of motion filed 29 December 2005 the defendant seeks an order that the registration of the judgment entered on 30 August 2005 of the High Court of New Zealand be set aside. The plaintiff is Fletcher Steel Limited (Fletcher Steel) who relied on the affidavit of Mervyn Neil Spencer filed 19 October 2005. The defendant is Vijay Yeshwant Moghe (Vijay) who relied upon a bundle of documents. The defendant appeared at this hearing unrepresented. Both he and his wife made submissions.

2 Fletcher Steel is a manufacturer of steel related products. It is incorporated in New Zealand and its registered place of business is 810 Great South Road, Penrose, New Zealand. Fletcher Steel obtained orders in proceedings CIV 2004-404-1616 in the High Court of New Zealand (the original court) against Vijay. Fletcher Steel seeks registration to enforce order 3 of the judgment which reads:

“3. That the first defendant shall pay costs and disbursements to the plaintiff of $2,536.99 as set out in the attached schedule in respect of the applications.”

Foreign Judgments Act

3 Pursuant to s 6(1) of the Act the judgment is a money judgment and was not given in proceedings in which a matter for determination arose under ss 36A, 98H or 99A of the Commerce Act 1986 (NZ).

4 Section 6(1) of the Act provides:

“6 Application for, and effect of, registration of foreign judgments

(1) A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:
(a) the date of the judgment; or
(b) where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;

to have the judgment registered in the court.”

5 Pursuant to s 6(11)(a) of the Act Fletcher Steel seeks to have the judgment registered in New Zealand dollars which is the currency in which the judgment is expressed.

6 Section 6(11) provides:

“(11) Subject to subsection (12), if the amount payable under a judgment that is to be registered is expressed in a currency other than Australian currency, the judgment is to be registered:


(a) if the judgment creditor has stated in the application that the judgment creditor wishes the judgment to be registered in the currency in which it is expressed—in that currency; or

(b) in any other case—as if it were for an equivalent amount in Australian currency, based on the rate of exchange prevailing on the second business day (the conversion day ) before the day on which the application for registration is made.”

7 Fletcher Steel submitted that it is entitled to enforce order 3 of the judgment and this order would not be liable to be set aside for any of the matters set out in s 7(2)(a)(ii), (iv), (vi), (vii), (viii), (ix), (x), (xi) and 7(2)(b) of the Act. However, the defendant submitted firstly, that there is a lack of jurisdiction over the subject matter in dispute because there was never a binding contract but merely an obligation to co-operate with WML to give legal effect to the contents of an agreement; and secondly, the subject, the defendant does not reside within the jurisdiction of New Zealand.

8 Section 7 of the Act provides:

(1) A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992, to have the registration of the judgment set aside.

(2) Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:

(a) must set the registration of that judgment aside if it is satisfied:

(i) that the judgment is not, or has ceased to be, a judgment to which this Part applies; or
(ii) that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or
(iii) that the judgment was registered in contravention of this Act; or
(iv) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(v) that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or
(vi) that the judgment was obtained by fraud; or
(vii) that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or
(viii) that the rights under the judgment are not vested in the person by whom the application for registration was made; or
(ix) that the judgment has been discharged; or
(x) that the judgment has been wholly satisfied; or
(xi) that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy; or

(b) may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had before the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.

(3) For the purposes of subparagraph (2)(a)(iv) and subject to subsection (4), the courts of the country of the original court are taken to have had jurisdiction:

(a) in the case of a judgment given in an action in personam :

(i) if the judgment debtor voluntarily submitted to the jurisdiction of the original court; or
(ii) if the judgment debtor was plaintiff in, or counter-claimed in, the proceedings in the original court; or
(iii) if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court; or
(iv) if the judgment debtor was a defendant in the original court and, at the time when the proceedings were instituted, resided in, or (being a body corporate) had its principal place of business in, the country of that court; or
(v) if the judgment debtor was a defendant in the original court and the proceedings in that court were in respect of a transaction effected through or at an office or place of business that the judgment debtor had in the country of that court; or
(vi) if there is an amount of money payable in respect of New Zealand tax under the judgment; or

(b) in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property—if the property in question was, at the time of the proceedings in the original, court situated in the country of that court; or
(c) in the case of a judgment given in an action other than an action of the kind referred to in paragraph (a) or (b)—if the jurisdiction of the original court is recognised by the law in force in the State or Territory in which the judgment is registered.

(4) In spite of subsection (3), the courts of the country of the original court are not taken to have had jurisdiction:


(a) if the subject matter of the proceedings was immovable property situated outside the country of the original court; or

(b) except in the cases referred to in subparagraphs (3)(a)(i), (ii) and (iii) and paragraph (3)(c), if the bringing of the proceedings in the country of the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or

(c) if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.

(5) For the purposes of subparagraph (3)(a)(i), a person does not voluntarily submit to the jurisdiction of a court by:


(a) entering an appearance in proceedings in the court; or

(b) participating in proceedings in the court only to such extent as is necessary;

for the purpose only of one or more of the following:

(c) protecting, or obtaining the release of:


(i) property seized, or threatened with seizure, in the proceedings; or

(ii) property subject to an order restraining its disposition or disposal;
(d contesting the jurisdiction of the court;
(e) inviting the court in its discretion not to exercise its jurisdiction in the proceedings.

…”

9 The defendant denies that he has voluntarily submitted to the jurisdiction of the High Court of New Zealand or that he has counter claimed. The defendant by his defence dated 27 July 2004 has pleaded, at paragraph [1], that the original court does not have jurisdiction. However, from paragraphs [4] onwards of the defence pleads matters going the merits of the case. Paragraph [4] pleads a non-enforceable contract and paragraph [8] refers to the infirmities of the agreement dated 6 October 1993.

10 A defendant who appears only to protect the jurisdiction of the court does not thereby necessarily submit to it. But where a defendant adds to his protest against the jurisdiction a defence on the merits and takes a risk of a judgment against him on the facts, he or she cannot afterwards dispute the jurisdiction of the court (see Mighell v Sultan of Johore [1897] 1 QB 149, Boissiere v Brokner (1889) 6 TLR 85 and Re Williams (1904) 2 N & S 183). This is the case here. The defendant has pleaded in his defence matters which go to the merits of the case, he had submitted to the New Zealand jurisdiction. Thus, the High Court is taken to have jurisdiction under s 7(3)(a(i) of the Act.

11 Further the defendant has filed a counter claim dated 27 July 2004. The defendant’s wife explained that as they have not paid the fee to file the counter claim, it is not a counter claim. The document is headed “Statement of counterclaims by the first defendant dated 27 July 2004”. In it the defendant seeks compensation for emotional distress as a result of harassment and bullying tactics. The document is what is purported to be, namely a counter claim. Filing a counter claim also establishes that the New Zealand High Court has jurisdiction – see 7(3)(a)(ii) of the Act.

12 The last issue is whether the costs order is “final and conclusive”. It seems harsh to seek to enforce a judgment of such a modest sum prior to the conclusion of the proceedings. Unlike Rule 42.7.2 of the Uniform Civil Procedures Rules 2005 (NSW), where unless the court order otherwise, costs do not become payable until the conclusion of the proceedings, s 48E of the High Court Rules (NZ) provides:

“Costs in interlocutory applications -

(1) Unless there are special reasons to the contrary, costs on an opposed interlocutory application -

(a) Must be fixed in accordance with these rules when the application is determined; and

(b) Become payable when they are fixed.

(2) Despite subclause (1), the Court may reverse, discharge, or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made.

(3) This rule does not apply to an application for summary judgment.”

13 Sections 5 (4) and 5(5) of the Act provide:

“(4) This Part applies to an enforceable money judgment that:

(a) is final and conclusive; and

(b) was given in:

(i) a superior court of a country in relation to which this Part extends;

…

(5) For the purposes of paragraph (4)(a), a judgment is taken to be final and conclusive even though:

(a) an appeal may be pending against it; or

(b) it may still be subject to appeal;

in the courts of the country of the original court.”

14 The defendant did not refer to his intention to lodge an appeal nor has he done so. There is no evidence that the defendant has sought to reverse, discharge or vary the order for costs on the interlocutory application. It is my view that the judgment should be registered.

15 Costs are discretionary. Normally costs follow the event. The defendant is to pay the plaintiff’s costs of the summons and of the notice of motion as agreed or assessed. It is appropriate that I record, in the event that the costs are the subject of an assessment that the plaintiff produced a folder which contained a large number of unnecessary documents.

The court orders:

(1) The judgment dated 30 August 2005 of the High Court of New Zealand by which it was adjudged that the judgment debtor, Vijay Yeshwant Moghe pay Fletcher Steel Limited the sum of NZD $2,536.99 be registered under Part 2 of the Foreign Judgments Act 1991 (Cth).

(2) The notice of motion filed 29 December 2005 is dismissed.

(3) The defendant is to pay the plaintiff’s costs of the summons filed 19 October 2005 and of the notice of motion.

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