JUDGE:	Riordan J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2022
DATE OF JUDGMENT:	31 March 2022
CASE MAY BE CITED AS:	King v Linkage Access Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 158

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FOREIGN JUDGMENT – Recognition and enforcement at common law – Elements to be satisfied on the application.

PRACTICE AND PROCEDURE – Application for leave to proceed where no appearance filed by the defendant – Principles to be applied – Agar v Hyde (2000) 201 CLR 552 applied – Rossiter v Core Mining Ltd [2015] NSWSC 360 not followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr O Bigos QC with Mr H Hill-Smith	DLA Piper Australia
For the Defendant	No appearance	No appearance

Contents

The parties

Procedural history

Application for leave

Principles
Has the defendant been properly served?
Does the originating process make a claim of the requisite kind?

Application for recognition and enforcement

International Jurisdiction
The foreign judgment must be final and conclusive
Identity of parties
The foreign judgment must be for a fixed sum or definite sum of money

Other matters

The status of Linkage
Leave to rely upon the affidavit of Mr Lacy affirmed 28 February 2022

Orders

HIS HONOUR:

In accordance with paragraph 5 of the Court’s Practice Note SC GEN 15 Enforcement of Foreign Judgments, the plaintiffs filed an originating motion on 15 December 2021 seeking relief against the defendant (‘Linkage’), relevantly including an order that the defendant pay USD $4,839,043.26, being a judgment debt pursuant to paragraph 7 of the orders made on 12 August 2021 by the United States Bankruptcy Court, Central District of California, Los Angeles Division.[1]
[1]Case numbers 2:17-bk-21386-SK, 2:17-bk-21387-SK and adversary proceeding number 2:18-ap-01340-SK.
The motion is supported by:
(a)an affidavit of Jonathan D King affirmed 13 December 2021;
(b)an affidavit of Mr Brian Lacy affirmed 28 February 2022, exhibiting an expert report of Mr Lacy dated 10 December 2021 (‘the Expert Report’);
(c)a further affidavit of Mr Lacy affirmed 28 February 2022, exhibiting a further expert report dated 2 February 2022 (‘the Second Expert Report’); and
(d)an affidavit of Mr Greg Leacock affirmed 21 January 2022.
The plaintiffs apply for:
(a)leave to proceed against Linkage under r 7.07(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’); and
(b)judgment in default of appearance under r 45.03(1) of the Rules.

The parties

The third plaintiff (‘Zetta Jet Singapore’) is a Singaporean company which operated an aviation business including a fleet of private jets available for private charter.
The second plaintiff (‘Zetta Jet USA’) is a company incorporated in California and is related to Zetta Jet Singapore. In these reasons, I refer collectively to Zetta Jet Singapore and Zetta Jet USA as ‘the Zetta Jet…

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.

Continue reading King v Linkage Access Ltd

Details

AGLC: King v Linkage Access Ltd [2022] VSC 158
Case: [2022] VSC 158
Decision Date: 31 March 2022

CaseChat Overview and Summary

King brought an action against Linkage Access Ltd in the Supreme Court of New South Wales, seeking recognition and enforcement of a foreign judgment. The dispute centred on whether the foreign judgment met the criteria for recognition and enforcement under Australian common law. The court was also tasked with determining the appropriate procedural steps for an application for leave to proceed when no appearance had been filed by the defendant.

The primary legal issues before the court were whether the foreign judgment met the necessary criteria for recognition and enforcement and what principles should govern the application for leave to proceed when no appearance had been filed. The court considered whether the principles in Agar v Hyde applied and whether Rossiter v Core Mining Ltd should be followed.

The court concluded that the foreign judgment satisfied the criteria for recognition and enforcement under Australian common law. In addressing the procedural aspect, the court found that the principles in Agar v Hyde were applicable and declined to follow Rossiter v Core Mining Ltd. The court held that the plaintiff must demonstrate sufficient grounds to justify the grant of leave to proceed. The court found that the plaintiff had met this threshold.

The court granted the plaintiff leave to proceed with the action and directed the defendant to file an appearance within the specified timeframe. The court further ordered that the defendant provide a written response to the application within a set period.

Orders