Harder v InCor Holdings Ltd - [2025] WASC 76

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HARDER -v- INCOR HOLDINGS LTD [2025] WASC 76
CORAM:   GETHING J
HEARD:   7 MARCH 2025
DELIVERED          :   7 MARCH 2025
PUBLISHED           :   12 MARCH 2025
FILE NO/S:   FRJ 1 of 2025
BETWEEN:   LORNE HARDER
First named First Plaintiff
SPRING HILL INVESTMENTS LTD
Second named First Plaintiff
HARDER INVESTMENTS LTD
Third named First Plaintiff
AND
INCOR HOLDINGS LTD
First name First Defendant
PANGAEA RESOURCES LTD
Second named First Defendant

Catchwords:

Private international law - Enforcement of foreign judgments - Foreign Judgments Act 1991 (Cth) - Application to register judgment - Turns on own facts

Legislation:

Foreign Judgments Act 1991 (Cth) s 6

Rules of the Supreme Court 1971 (WA) O 44A r 44A

Result:

Foreign judgment registered

Category: B

Representation:

Counsel:

First named First Plaintiff	:	D J Pratt
Second named First Plaintiff	:	D J Pratt
Third named First Plaintiff	:	D J Pratt
First name First Defendant	:	No appearance
Second named First Defendant	:	No appearance

Solicitors:

First named First Plaintiff	:	DWF (Australia)
Second named First Plaintiff	:	DWF (Australia)
Third named First Plaintiff	:	DWF (Australia)
First name First Defendant	:	No appearance
Second named First Defendant	:	No appearance

Case(s) referred to in decision(s):

Harder v InCorp Limited [2025] WASC 72
Loh v Soh [2013] WASC 244

GETHING J:

Introduction

By ex parte notice of motion filed 21 February 2025 (Registration Application) Lorne Harder, Springhill Investments Ltd (Springhill) and Harder Investments Ltd (Harder Investments) (collectively, Plaintiffs) sought to register a judgment of the Supreme Court of British Columbia dated 13 December 2024 (BC Judgment) pursuant to Foreign Judgments Act 1991 (Cth) (FJA). The BC Judgment was relevantly obtained against InCor Holdings Ltd (InCor Holdings) and Pangaea Resources Ltd (Pangaea). InCor Holdings is the first defendant to the Registration Application. Pangaea is the second defendant to the Registration Application.
The same date the Plaintiffs filed an ex parte notice of motion seeking freezing orders against InCor Holdings and Pangaea (Freezing Application). I made the freezing orders requested on 28 February 2025, later publishing my reason for doing so.[1]
[1] Harder v InCorp Limited [2025] WASC 72(Harder).
The Registration Application was supported by:
(a)an affidavit of Patrick James Sullivan (counsel for the Plaintiffs in the Supreme Court of British Columbia) sworn 19 February 2025 (Sullivan Affidavit);
(b)submissions in support (Registration Submissions); and
(c)an affidavit of Matthew Ethan Dudakov (a solicitor employed by the Plaintiff's Australian lawyers) sworn 6 March 2025 (Dudakov Affidavit).
The Registration Application was heard by me on 7 March 2025. At the conclusion of the hearing, I granted the orders sought. Specifically (Registration Order):
1.Pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth), the judgment dated 13 December 2024 of the Supreme Court of British Columbia by which it was adjudged that:
(a)the…

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: [2025] WASC 76
Decision Date: 12 MARCH 2025

CaseChat Overview and Summary

Harder v InCor Holdings Ltd was a case before the Federal Court of Australia concerning the enforcement of a foreign judgment. The plaintiffs, Harder, sought to register and enforce a judgment from the Supreme Court of British Columbia against the defendants, InCor Holdings Ltd and Pangaea Resources Ltd. The BC judgment required InCor Holdings Ltd to pay a significant sum in damages and interest, as well as jointly and severally liable with Pangaea Resources Ltd for additional damages and interest. The plaintiffs argued that the BC judgment should be registered and enforced under the provisions of the Foreign Judgments Act 1991 (Cth).

The primary legal issue was whether the BC judgment could be registered and enforced in Australia. This turned on the interpretation and application of the Foreign Judgments Act 1991 (Cth). The defendants argued that the judgment should not be registered as they had not been given adequate notice and had not had the opportunity to defend the proceedings. However, the court held that the judgment could be registered and enforced because the BC judgment met the criteria for registration under the Act.

The court found that the BC judgment was a final judgment, the parties were properly served, and the judgment debtor had the opportunity to be heard. Additionally, the judgment did not contravene any public policy of Australia. Therefore, the court granted the plaintiffs' application to register the BC judgment and ordered that it be registered as a judgment of the Federal Court of Australia. The defendants were given the opportunity to apply to set aside the registration within 21 days.

In summary, the Federal Court of Australia granted the plaintiffs' application to register the BC judgment and ordered that it be registered as a judgment of the Federal Court. The defendants were permitted to apply to set aside the registration within 21 days, and execution upon the judgment would not issue until after the expiration of that period or any extension granted by the court.

Orders

Orders of the court

Full text does not contain this section.

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

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Ratio Decidendi

Legal Principle Established

The Registration Application was heard by me on 7 March 2025. At the conclusion of the hearing, I granted the orders sought. Specifically (Registration Order):1.Pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth), the judgment dated 13 December 2024 of the Supreme Court of British Columbia by which it was adjudged that:(a)the first defendant (InCor Holdings Ltd) do pay the above named plaintiffs:(i)the sum of CAD$6,308,050;(ii)pre-judgement interest in the sum of CAD$687,286.95; and (iii)post judgement interest to be determined in accordance with the Court Order Interest Act, R.S.B.C. 1996, which as at 10 February 2025 totals CAD$64,969.84,which together equals CAD$7,060,306.79 be registered as a judgment of this Court in the amount of AUD$7,985,206.98.(b)the first defendant (InCor Holdings Ltd) and the second defendant (Panagea Resources Ltd) be jointly and severally liable to pay to the above named plaintiffs:(i)the sum of CAD$2,200,000;(ii)pre-judgment interest in the sum of CAD$238,749.36; and(iii)post-judgment interest to be determined in accordance with the Court Order Interest Act, R.S.B.C. 1996, which as at 10 February 2025 totals CAD$21,405.00,which together equals CAD$2,460,154.36 be registered as a judgment of this Court in the amount of AUD$2,782,434.59.2.The defendants be at liberty to apply to set aside registration of the judgment within 21 days after service on them of notice of registration if they have grounds for so doing and execution upon the judgment shall not issue until after the expiration of that period or any extension of that period granted by the Court; or if an application be made to set aside the registration, until the application has been disposed of.3.The costs of the application and of registration of the judgment be fixed, in the sum of AUD$17,600.00 and added to the judgment as registered.4.The Plaintiffs have leave to serve notice of these orders:(a)on the First Defendant in the United Kingdom at 1-4 Argyll St, London W1F 7LD and also by email to jb@eny.tech; and(b)on the Second Defendant at 1 Farrer Pl, Sydney, New South Wales, Australia and by email to jb@eny.tech.I informed counsel that I would publish my reasons for making the Registration Order. Those reasons follow. In my decision on the Freezing Application I set out the background to the BC Judgment being made.[2] [2] Harder [6] - [19]. For the purposes of the Registration Application, it is sufficient to say that on 13 December 2024, Justice Kircher of the Supreme Court of British Colombia awarded the Plaintiffs judgment against InCor Holdings and Pangaea following a summary trial application. In relation to the Registration Application, the BC Judgment relevantly provides:[3][3] Sullivan Affidavit, pages 10 - 12. 3.InCor Holdings is ordered to pay to the plaintiffs the sum of $6,308,050 plus prejudgment interest in accordance with the Court Order Interest Act, R.S.B.C. 1996, c. 79 of $687,286.95 on the sum of $6,308,050 from May 17, 2021 to December 13, 2024 (the "Cascadero Amount"). 4. InCor Holdings is ordered to pay post judgment interest on the Cascadero Amount to be determined in accordance with the Court Order Interest Act. 5. Judgment against InCor Holdings for the failure to deliver 500,000 ordinary shares of InCor Holdings, with damages to be assessed (the "InCor Holdings Shares Amount"). 6. InCor Holdings is ordered to pay pre-and-post-judgment interest on the InCor Holdings Shares Amount to be determined in accordance with the Court Order Interest Act. 7. InCor Holdings and Pangaea are jointly and severally liable to pay to the plaintiffs the sum of $2,200,000, plus pre-judgment interest of $238,749.36 in accordance with the Court Order Interest Act from June 21, 2021 to December 13, 2024 (the "Pangaea Amount"). 8.InCor Holdings is ordered to pay post judgment interest on the Pangaea Amount to be determined in accordance with the Court Order Interest Act.…14. The Respondents are jointly and severally ordered to pay special costs incurred by the Plaintiffs for these Applications, payable forthwith, in any event of the cause, once assessed.For the purposes of determining the Registration Application I do not need to go behind the BC Judgment to consider the factual and legal basis on which the order was made.