Kingston Securities Ltd v Lee - [2024] NSWSC 402

Supreme Court

New South Wales

Medium Neutral Citation: Kingston Securities Ltd v Lee [2024] NSWSC 402
Hearing dates: 15 April 2024
Date of orders: 17 April 2024
Decision date: 17 April 2024
Jurisdiction: Equity
Before: Hammerschlag CJ in Eq
Decision:
(1) Pursuant to section 7(2)(a)(v) of the Foreign Judgments Act 1991 (Cth) the judgment of the Court entered on 16 November 2023 in favour of the plaintiff against the defendant for $10,960,277.74 set aside.
(2) Plaintiff’s Notice of Motion filed 31 March 2024 dismissed.

Catchwords:
PRIVATE INTERNATIONAL LAW – Foreign Judgments Act 1991 (Cth) s 7(2)(a)(v) – Section requires the Court to set the registration of a foreign judgment aside where the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings and he did not appear - Application to set aside registration of a judgment of the High Court of the Hong Kong Special Administrative Region, Court of First Instance – Where defendant did not receive notice of the Hong Kong proceedings until after judgment was given – Where defendant did not appear in the Hong Kong Court to defend the judgment – Where defendant moved the Hong Kong Court to set aside its judgment before making the application to this Court – Whether by doing so defendant appeared (or did not not appear) within the meaning of the section – HELD defendant did not appear – Registration of the foreign judgment set aside
CIVIL PROCEDURE – Application by plaintiff for monies paid by consent order into Court by defendant to be paid by the Court into the Hong Kong Court – Alternatively to be kept in Court pending determination of a proposed claim in the Court by plaintiff against defendant – HELD application refused on various grounds including that the monies were paid into Court under a consent order to abide orders of this Court, not orders of the Hong Kong Court, and defendant’s entitlement to have the registered judgment set aside is not susceptible to the condition that monies stay in Court pending plaintiff’s proposed proceedings

Legislation Cited:
Foreign Judgments Act 1991 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Attorney-General (Canada) v Hallet & Carey Ltd [1952] AC 427
Bank Polska KasaOpiekiSpolkaAkcyjna v Richard Zbigniew Opara & Anor [2010] QSC 93
Barclays Bank Limited v Piacun (1983) 2 Qd R 476
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd (2023) 111 NSWLR 550
Nyunt v First Property Holdings Pte Ltd [2022] NSWCA 249

Category: Principal judgment
Parties: Kingston Securities Limited (Plaintiff)
Wilson Lee (Defendant)
Representation:
Counsel:
D Pritchard SC and C Harris (Plaintiff)
N Kidd SC (Defendant)
Solicitors:
Somerville Legal (Plaintiff)
Lawside Lawyers (Defendant)

File Number(s): 2023/00357721
Publication restriction: Nil

JUDGMENT

HIS HONOUR: This contest turns on a narrow, but arguably not insignificant, question of the proper construction of s 7(2)(a)(v) of the Foreign Judgments Act 1991 (Cth) (

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: [2024] NSWSC 402
Decision Date: 17 April 2024

CaseChat Overview and Summary

Kingston Securities Ltd sought to enforce a judgment from the High Court of Hong Kong against Lee. Lee applied to set aside the registration of that judgment under section 7(2)(a)(v) of the Foreign Judgments Act 1991 (Cth), arguing that he did not receive notice of the Hong Kong proceedings in time to defend and did not appear before the Hong Kong Court. The primary legal issue was whether Lee's subsequent motion to set aside the Hong Kong judgment constituted an appearance within the meaning of the Act. The court found that Lee did not appear in the Hong Kong proceedings and, consequently, set aside the registration of the foreign judgment.

In addition to the application to set aside the foreign judgment, Kingston Securities Ltd also sought an order for monies paid by Lee into Court by consent order to be transferred to the Hong Kong Court or, alternatively, to remain in Court pending a proposed claim by Kingston Securities Ltd against Lee. The court rejected this application on multiple grounds. Notably, the court held that the consent order required the monies to abide by the orders of the Australian Court, not the Hong Kong Court. Furthermore, the court determined that Lee's entitlement to have the registered judgment set aside was not contingent upon the monies remaining in Court pending the proposed proceedings by Kingston Securities Ltd. Consequently, the application to transfer or retain the monies was dismissed.

Orders