Ibrahim v All Aspect Formwork (Aust) Pty Ltd

[2009] NSWSC 310

CITATION:	Ibrahim v All Aspect Formwork (Aust) Pty Ltd [2009] NSWSC 310
HEARING DATE(S):	12 March 2009
JURISDICTION:	Equity Division Duty Judge List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	12 March 2009
DECISION:	Summons dismissed with costs
CATCHWORDS:	PRIVATE INTERNATIONAL LAW – Anti-suit injunction – where proceedings pending in District Court – where proceedings brought for “precautionary injunction” in Lebanon – where precautionary injunction offers superior remedy – Whether foreign proceeding vexatious, oppressive or abusive
CATEGORY:	Principal judgment
CASES CITED:	Bank of Tokyo Ltd v Karoon [1987] AC 45, [1986] 3 All ER 468, [1986] 3 WLR 414 Bayer AG v Winter (No 3) (The Times 24 March 1986) CSR Ltd v Cigna Insurance Ltd (1997) 189 CLR 345 Yandil Holdings Pty Limited v Insurance Co of North America (1986) 7 NSWLR 571
PARTIES:	Romeo Elias Ibrahim (plaintiff) All Aspect Formwork (Aust) Pty Ltd (first defendant) Richard Sckaff (second defendant)
FILE NUMBER(S):	SC 1637/09
COUNSEL:	D K L Raphael (plaintiff) R McKeand SC (defendants)
SOLICITORS:	Penhall & Co (plaintiff) Simon Diab & Associates (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Thursday 12 March 2009

1637/09 Romeo Elias Ibrahim v All Aspect Formwork (Australia) Pty Ltd & anor

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff Romeo Elias Ibrahim is the defendant in proceedings in the District Court of New South Wales at Parramatta in which the present defendants, All Aspects Formwork (Aust) Pty Ltd, and Richard Sckaff are the plaintiffs and claim money said to be due under a contract made between Mr Sckaff and Mr Ibrahim. They first initiated proceedings for recovery of the debt in the District Court at Parramatta in 2007, but subsequently discontinued them. They brought further proceedings in 2008 and obtained default judgment, but it has since been set aside, and the proceedings remain on foot. The defence of Mr Ibrahim, as I understand it, is essentially that the contracting party was his now deregistered company, and not himself. There appears to be little if any dispute that the relevant contract was made in New South Wales and that the cause of action arose in New South Wales.

2 While those proceedings were pending in the District Court, Mr Sckaff commenced proceedings claiming the same debt in the Civil Court in Lebanon, and also commenced an application in the Executory Court in Lebanon for what is called a precautionary injunction.

3 In the present application, Mr Ibrahim seeks an anti-suit injunction prohibiting Mr Sckaff and All Aspect Formwork from prosecuting their claim in the Executory Court in Lebanon and requiring them to discontinue that proceeding.

4 The expert evidence before me, so far as Lebanese law is concerned, is somewhat unsatisfactory, since it accounts to little more than an ipse dixit of the relevant expert; but so far as it goes, it is to the effect that:

· a precautionary injunction is granted by the Executory Court, as distinct from the Civil Court in which proceedings to prove the debt are conducted;

· a precautionary injunction may be granted on the basis of a debt the subject of a claim in the Lebanese Civil Court, or the subject of a claim in an overseas court;

· a precautionary injunction operates rather like a caveat in our law, attaching to the relevant property of the defendant and preventing its sale, and prevails over the interest of a purchaser of the property from the defendant; and

· that upon the debt being proved, either in the Lebanese Civil Court or in an overseas Court, the precautionary injunction then becomes, in effect, a writ of execution.

5 In particular, Mr Harb's evidence – as contained in his affidavit, and as subsequently confirmed, albeit after some confusion, in the witness box – is that the proceedings in the Lebanese Civil Court are not necessary to sustain the precautionary injunction, it being sufficient that there are pending proceedings in an overseas court, relevantly the New South Wales District Court. On the basis of that evidence, Mr Sckaff has offered to discontinue the proceedings in the Lebanese Civil Court – which, in any event, he has deposed without challenge that he instituted "to secure a land asset" of Mr Ibrahim "so that I could execute judgment against it when I obtained judgment in the District Court. I do not wish to prove my case for payment of the debt claimed in the District Court in Lebanon other than so far as is necessary to entitle me to maintain the current order in relation to the land in Lebanon owned by Mr Ibrahim".

6 In CSR Ltd v Cigna Insurance Ltd (1997) 189 CLR 345 the High Court approved of the statement of Robert Goff LJ in Bank of Tokyo Ltd v Karoon [1987] AC 45, [1986] 3 All ER 468, [1986] 3 WLR 414 that foreign proceedings are to be viewed as vexatious or oppressive in the context of an application for anti-suit relief "only if there is nothing which can be gained by them over and above what may be gained in local proceedings", but would be vexatious or prospective if there is "a complete correspondence" between the proceedings, or if "complete relief" is available in the local proceedings.

7 In my view, a precautionary injunction of the type which the evidence reveals in this case is a remedy over and above what can be gained in local proceedings. It is therefore a superior remedy for an applicant than a Mareva injunction, which binds only the defendant in person, and not his or her property in rem. However wide the reach of a Mareva injunction may be, the enforcement of such an injunction in personam in respect of foreign assets is always a difficult matter, and the relief obtained by way of precautionary injunction provides superior protection for an applicant. So far as the evidence goes, the purpose of the foreign proceedings is to ensure that a foreign asset of Mr Ibrahim is secured, so as to be available to satisfy a judgment if one is ultimately obtained in the District Court of New South Wales. Mr Sckaff has indicated that he does not propose to prove his case for payment of the debt claimed in Lebanon, except to the extent necessary to maintain the precautionary injunction pending determination of the District Court proceedings.

8 In Yandil Holdings Pty Limited v Insurance Co of North America (1986) 7 NSWLR 571 (per Rogers J, as he then was) referred at 575 with approval to observations made by Hoffman J (as his Lordship then was) in Bayer AG v Winter (No 3) (The Times 24 March 1986) as follows:

... the plaintiff may have resort to assets in other countries, particularly those in which an English judgment would be enforced. In such a case, the underlying policy of the Mareva injunction to prevent a defendant from disposing of his assets in order to frustrate the execution of any judgment which the plaintiff may obtain would suggest that this court should try to make its ultimate judgment effective by assisting the plaintiff to take steps to prevent the defendant from disposing of his assets in foreign jurisdictions as well. There are territorial limits to the effectiveness of this court's own orders. If however there is evidence that a foreign court would be willing to make orders similar effect to a Mareva injunction upon assets within its jurisdiction, it seems to me that, other things being equal, this court should not restrict at plaintiff's ability to obtain such relief. It would be a pointless insularity for an English court to put obstacles in the way of a plaintiff who wished, with the aid of foreign courts, to enforce an English judgment against a defendant's assets wherever they might be.

9 Because of the references in that passage to a Mareva injunction, I think it is clear that his Lordship had in mind interim relief, and not only relief granted after final judgment in the matter. What his Lordship said indicates that a local court should not regard as vexatious or oppressive attempts to secure in foreign jurisdictions assets of a defendant, where the foreign law permits that, to ensure that they are available to obtain a judgment that may be obtained in the local proceedings. It is, of course, a matter for the foreign court as to whether such relief is appropriate.

10 In my view, there is nothing vexatious, oppressive or abusive about the institution of the proceedings in Lebanon. It may well have been another matter if they had been initiated and continued with the intention of prosecuting the proceeding in the Civil Court to a conclusion and proving the debt in those proceedings in parallel to the proceedings in the District Court of New South Wales. However, the evidence before me establishes that that is not their purpose and intent, and an undertaking has been offered which more than meets the possibility that the Civil Court proceedings might have been so used.

11 The obtaining of the precautionary injunction was the legitimate pursuit of a right and remedy given by Lebanese law, over and above that available in the New South Wales proceeding. It is commonplace in our courts that injunctions of a Mareva nature (and for that matter caveats affecting real property) are lodged without notice to the other party. Mr Harb's evidence indicates that an application for a precautionary injunction is conventionally made ex parte, and the respondent is then given an opportunity to move to set aside the order. So far as the evidence goes, that opportunity remains open. The circumstance that no prior notice of the application was given does not give it the character of an abuse of process.

12 In my view, the plaintiff has not established that the Lebanese proceedings are vexatious, oppressive or an abuse of process.

13 Upon the defendants by their counsel undertaking to the Court that they will discontinue the proceedings in the Lebanese Civil Court, I order that the summons be dismissed with costs.

**********