Gros v Jones
[2011] NSWSC 1605
•06 December 2011
Supreme Court
New South Wales
Medium Neutral Citation: Gros v Jones [2011] NSWSC 1605 Hearing dates: Tuesday, 6 December 2011 Decision date: 06 December 2011 Jurisdiction: Equity Division Before: White J Decision: Refer to para [13] of judgment.
Catchwords: PRIVATE INTERNATIONAL LAW - foreign judgments - recognition and enforcement - Foreign Judgments Act 1991 (Cth), Part 2 - orders made in Subordinate Courts of the Republic of Singapore - Subordinate Courts of Republic of Singapore not specified inferior courts for the purposes of Part 2 of Foreign Judgments Act 1991 (Cth) - Part 2 of Foreign Judgments Act 1991 (Cth) does not apply - application refused Legislation Cited: Foreign Judgments Act 1991 (Cth)
Family Law Act 1975 (Cth)Category: Interlocutory applications Parties: Antonija Gros (Plaintiff)
Craig Victor Jones (Defendant)Representation: F L Levy, solicitor (Plaintiff)
No appearance (Defendant)
Forbes-Smith & Company (Plaintiff)
N/a (Defendant)
File Number(s): 2011/312420
Judgment
HIS HONOUR : This application was made ex parte purportedly under the Foreign Judgments Act 1991 (Cth) ("the Act"). The application was referred to me by the Registrar and I have heard argument from Mr Levy, solicitor for the plaintiff, as to the application of the Act in the circumstances of this case.
On 11 March 2011 an order was made in the "Subordinate Courts of the Republic of Singapore " in favour of the present plaintiff against her former husband. The present plaintiff was the defendant in the Singapore court. The orders were that the defendant (the present plaintiff) was to be entitled to payment of a lump sum described as " her share of matrimonial assets and lump sum maintenance ". She was also found to be entitled to payment of a further lump sum being arrears of maintenance pursuant to an order of the court of 6 April 2009. Orders were also made that the defendant and/or her nominee be appointed as trustee for sale of land of the Singapore plaintiff (the present defendant and plaintiff's husband) in Barrengarry, New South Wales and for the utilisation of the net proceeds of sale towards the settlement of her entitlement as stated in the orders. An order was also made that if either party did not sign any documents or do things necessary to carry the orders into effect, then, upon application by the other party to the Family Court of Australia, a registrar of the Family Court of Australia would be entitled to sign such documents and do all things necessary to carry out the orders pursuant to s 106A of the Family Law Act 1975 (Cth). An order was also made for costs.
Two questions arise on the present application. The first is whether the court in which these orders were made is a court to which Part 2 of the Act applies. If so, the second question is which of the above orders could be registered under the Act.
Section 5 of the Act provides:
" 5 Application of this Part on the basis of reciprocity of treatment
(1) If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being applied to money judgments given in the superior courts of a country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all Australian superior courts, the regulations may provide that this Part extends in relation to that country.
(2) A specified court of such a country is taken to be a superior court for the purposes of this Act if the regulations so provide, but a failure so to provide in relation to a particular court is not taken to imply that the court is not a superior court for the purposes of this Act.
(3) If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being applied to money judgments given in all or some inferior courts of such a country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all or some Australian inferior courts, the regulations may provide that this Part extends in relation to specified inferior courts of that country.
(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; or
(ii) an inferior court of such a country, being an inferior court in relation to which this Part extends.
...
(6) If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being applied to all or some non money judgments given in courts of a country in relation to which this Part extends, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of all or some non-money judgments given in Australian courts, the regulations may provide that this Part applies to such non-money judgments, given in the courts of that country, as are prescribed.
(7) Regulations made for the purposes of subsection (6) must provide for the kinds of non-money judgments, given in the courts of a country, to which this Part applies by specifying or describing:
(a) the courts in which such non-money judgments are given; and
(b) the kinds of proceedings in which such non-money judgments are given; and
(c) the kinds of non-money judgments.
(8) This Part does not apply to:
(a) a money judgment given by a superior court of a country before the day on which the regulations extend this Part in relation to that country; or
(b) a money judgment given by an inferior court before the day on which the regulations extend this Part in relation to that court; or
(c) a non-money judgment of a particular kind given in a court in proceedings of a particular kind before the day on which the regulations apply this Part to non-money judgments of that kind given in that court in proceedings of that kind;
unless:
(d) the judgment was given by a court of New Zealand or the United Kingdom; or
(e) the judgment was, immediately before that day, registrable in the Supreme Court of a State or Territory under a law of that State or Territory. "
An application to have a foreign judgment registered under the Act can be made by a judgment creditor ex parte pursuant to s 6 of the Foreign Judgments Act and Uniform Civil Procedure Rules 2005, r 53.2.
Pursuant to subs 5(1), regulations have been made that provide that Part 2 of the Act extends to the Republic of Singapore.
Pursuant to subs 5(2), the Foreign Judgments Regulations 1992 ("the Regulations") provide for the Privy Council, in respect of orders made on appeals from the Supreme Court of Singapore and filed with the Court of Appeal of Singapore, and the Supreme Court of Singapore, consisting of the Court of Appeal and the High Court, to be superior courts for the purposes of the Act .
Pursuant to subs 5(3), the Regulations provide for specified inferior courts of New Zealand, the United Kingdom, Canada, Switzerland and Poland to be inferior courts to which Part 2 of the Act applies (reg 5). The Regulations do not specify inferior courts of the Republic of Singapore as courts to which the Act applies.
Mr Levy, solicitor for the plaintiff, submitted that because only superior courts of Singapore are listed in column 3 of schedule 2 as being superior courts to which the Act applies, the Act is to be taken to apply to all inferior courts of Singapore, without any need for their being specified in the regulations. I do not agree. Pursuant to s 5(4)(b)(ii), Part 2 of the Act applies to an enforceable money judgment only if such inferior courts are courts in relation to which Part 2 of the Act extends. Such courts are those specified in the regulations made under subs 5(3), that is to say, the specified courts of New Zealand, the United Kingdom, Canada, Switzerland and Poland. The Act does not apply to the subordinate courts of Singapore.
It is, accordingly, unnecessary to consider whether the orders for the appointment of trustees for sale could be enforceable under Part 2 of the Act.
The summons seeks only relief under Part 2 of the Act and consequential relief. No order is presently sought in the summons by which the plaintiff might seek recognition and enforcement of the orders of the subordinate courts of Singapore at common law. If any such application is to be made, it would not be made ex parte . Rule 53.2 of the Uniform Civil Procedure Rules permits a judgment creditor to proceed without service of the summons on a judgment debtor. It applies only to proceedings for registration of a judgment under Part 2 of the Act.
It appears that there is difficulty in serving the defendant, and it does not appear that he is resident in Australia. If an application were to be made for enforcement of the judgment at common law, consideration would need to be given both as to whether these are proceedings that could be served outside the jurisdiction pursuant to Part 11 of the Uniform Civil Procedure Rules and whether orders for substituted service could be made. Those questions have not yet arisen. If Mr Levy is in a position to deal with those questions now, I will give consideration as to whether I should give leave for the amendment of the summons. Otherwise, I will hear submissions as to whether the appropriate course is simply to dismiss the summons or to give the plaintiff further time to consider what course of action she wishes to pursue in relation to any possible amendments.
[Mr Levy addresses.]
I refuse the orders sought in paragraphs 1 and 3 of the summons and I note that the matter is stood over whilst the plaintiff considers whether she wishes to amend the summons.
Decision last updated: 22 December 2011
0
0
2