Harder v InCor Holdings Ltd
[2025] WASC 76
•12 MARCH 2025
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 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 [email protected]; and
(b)on the Second Defendant at 1 Farrer Pl, Sydney, New South Wales, Australia and by email to [email protected].
I informed counsel that I would publish my reasons for making the Registration Order. Those reasons follow.
Background
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.
Mr Sullivan then deposes that to the best of his knowledge, information and belief, InCor Holdings and Pangaea have failed to pay the Plaintiffs at all in accordance with the BC Judgment.[4]
[4] Sullivan Affidavit, par 45.
Registration Application - relevant law
By FJA a judgment creditor under a judgment to which FJA pt 2 applies may apply to 'the appropriate court' to have the judgment registered in the court. FJA pt 2 applies to the Supreme Court of British Colombia.[5]
[5] Foreign Judgments Regulations 1992 (Cth) (Regulations) rr 3-4 and Schedule, Item 3.
As the BC Judgment is a judgment for a monetary amount the Supreme Court is an 'appropriate court'.[6] The Rules of the Supreme Court 1971 (WA) (RSC) by O 44A provide the procedure in this court for an application under the FJA.
[6] FJA s 6(2)(c).
The application may be made at any time within 6 years after the date of the judgment or where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings.[7]
[7] FJA s 6(1).
Once registered (unless set aside or it ceases to be enforceable):[8]
(a)a registered judgment has, for the purposes of enforcement, the same force and effect; and
(b)proceedings may be taken on a registered judgment; and
(c)the amount for which a judgment is registered carries interest; and
(d)the registering court has the same control over the enforcement of a registered judgment;
as if the judgment had been originally given in the court in which it is registered and entered on the date of registration.
[8] FJA s 6(7), s 7, s 14.
The requirements for the affidavit in support of an application to register a judgment are set out in RSC O 44A r 4 as follows:
(1)An application for registration shall be supported by an affidavit of the facts -
(a)exhibiting a certified copy of the judgment issued by the original court and authenticated by its seal and where the judgment is not in the English language a translation of the judgment certified by a notary public or authenticated by affidavit; and
(b) stating to the best of the information and belief of the deponent -
(i)that the applicant is entitled to enforce the judgment; and
(ii)as the case may require, either that at the date of the application the judgment has not been complied with, or if the judgment has been complied with in part, the amount in respect of which it remains unsatisfied; and
(iii)that at the date of the application the judgment is capable of enforcement in the country of the original court; and
(iv)that if the judgment were registered, the registration would not be, or be liable to be, set aside under section 7 of the Act; and
(c)specifying the amount of the interest, if any, which under the law of the country of the original court has become due under the judgment up to the time of registration, and shall be accompanied by such other evidence with respect to the enforceability of the judgment in the country of the original court, and of the law of that country under which any interest has become due under the judgment, as may be required having regard to the provisions of the regulations extending the Act to the country of the original court.
(2)Where a sum payable under the judgment is expressed in a currency other than the currency of Australia, the affidavit shall also state the amount which that sum represents in the currency of Australia calculated at the rate of exchange prevailing at the date of the judgment.
(3)The affidavit shall also state the full name, title, trade or business and the usual or last known place of abode or of business of the judgment creditor and the judgment debtor respectively, so far as known to the deponent.
In relation to RSC O 44A r 4(2), counsel for the Plaintiffs in the Registration Submissions points out that this is inconsistent with FJA s 6(11)(b), which provides (so far as is relevant):
… 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:
…
(b)… 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.
I agree with counsel that the FJA prevails over the RSC in this inconsistency.[9]
[9] FJA s 17(1); Loh v Soh [2013] WASC 244 [12] (Sanderson M) (Loh).
As the application is made ex parte, the plaintiff is subject to an obligation of full and frank disclosure.[10]
[10] Loh [13].
Subject to the FJA and proof of the matters prescribed by RSC O 44A, the Supreme Court 'is to order the judgment to be registered'. That is, there is no discretion not to register the judgment.
Once registered, notice of the registration of the judgment (not the actual order) must be served on the judgment debtor.[11] Within 3 days of service of the notice, the judgment creditor is to file an affidavit of service complying with RSC O 44A r 9.
[11] RSC O44A r 6(2) and 8.
The judgment debtor may then make an application to set aside the registration of the judgment.[12] The time within which this application may be made must be stated in the order registering the judgment.[13] The notice of registration must inform the judgment debtor of their right to apply to have the registration set aside and the period of time from the date of service of within which this application must be made.[14] No step for the enforcement of the judgment shall be taken until after the expiration of that period.[15]
[12] RSC O 44A r 10.
[13] RSC O 44A r 6(3).
[14] RSC O 44A r 2(c) and (d).
[15] RSC O 44A r 11(1).
Determination
Mr Sullivan annexes a certified copy of the BC Judgment as Annexure PJS-1 to the Sullivan Affidavit in compliance with RSC O 44A r 4(1)(a). I have set out the relevant substance of the BC Judgment at [6].
Mr Sullivan goes on to depose that:
(a)the appeal period in respect of the BC judgment has expired and no appeal against has been lodged;[16]
(b)the BC judgment has not been complied with;[17]
(c)the BC Judgment is capable of enforcement in British Columbia, Canada;[18] and
(d)having read FJA s 7, he has no reason to believe that if the BC Judgment is registered in Australia it would be, or be liable to be, set aside under that provision.[19]
I am satisfied that Mr Sullivan has addressed all the requirements in RSC O 44A r 4(1)(b).
[16] Sullivan Affidavit, par 14.
[17] Sullivan Affidavit, par 15.
[18] Sullivan Affidavit, par 16.
[19] Sullivan Affidavit, par 17.
Mr O'Sullivan then specifies the amount of the interest which under the law of British Columbia has become due under the judgment up to the time of registration, providing both the legal basis for the claim and the calculations. I am satisfied that Mr Sullivan has addressed all the requirements in RSC O 44A r 4(1)(c).
In relation to the Cascadero Amount, Mr O'Sullivan deposes that the total amount owing in Canadian dollars is $7,060,306.79, comprised of:
(a)the judgment sum of CAD$6,308,050;
(b)pre-judgment interest in the sum of CAD$687,286.95; and
(c)post-judgment interest as at 10 February 2025 totals CAD$64,969.84.
Mr Sullivan then sets out the basis on which converts this amount to AUD$7,985,206.98. This is based on the rate of exchange prevailing on 18 February 2025, being the second business day before the day on which the Registration Application was made. I am satisfied that Mr Sullivan has complied with FJA s 6(11)(b) in respect of the Cascadero Amount.
In relation to the Pangaea Amount Mr Sullivan deposes that the total amount owing in Canadian dollars is CAD$2,460,154.36, comprised of:
(a)the judgment sum of CAD$2,200,000;
(b)pre-judgment interest in the sum of CAD$238,749.36; and
(c)post-judgment interest as at 10 February 2025 totals CAD$21,405.00,
In the Third Sullivan Affidavit, Mr Sullivan then sets out the basis on which converts this amount to AUD$2,782,434.59. This is based on the rate of exchange prevailing on 18 February 2025, being the second business day before the day on which the Registration Application was made. I am satisfied that Mr Sullivan has complied with FJA s 6(11)(b) in respect of the Pangaea Amount.
Finally, in compliance with RSC O 44A r 4(3), the Sullivan Affidavit, sets out the full name, title, trade or business and the usual or last known place of abode or of business of the judgment debtors, so far as known to him.[20]
[20] First Sullivan Affidavit, pars 21, 23 and 24.
As to the details of the Plaintiffs, in the Dudakov Affidavit, he sets out Mr Harder's full name, title, former trade or business and his usual abode, as well as the usual place of business of both Springhill and Harder Investments. The Plaintiffs have complied with the disclosure requirements in RSC O 44A r 4(3).
Accordingly, I was satisfied that the Plaintiffs had proven all matters required by the FJA and RSC. They were thus entitled to an order that the BC Judgment be registered as a judgment of the Supreme Court of Western Australia.[21]
[21] FJA s 6(3).
I gave consideration to whether I should exercise the discretion in RSC O 44A r 5 to order the Plaintiffs to find security for the costs of the Registration Application and of any proceedings which may thereafter be brought to set aside the registration. I do not discern any basis in the evidence before the court requiring an order of this kind to be made in the interests of justice.
For these reasons, on 7 March 2025 I made the Registration Order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OB
Associate to the Hon Justice Gething
12 MARCH 2025
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