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KTC v David (No. 2)

KTC v David (No. 2)

Case [2019] NSWSC 330 27 March 2019

Jurisdiction

Res Judicata

Unconscionable Conduct

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: KTC v David (No. 2) [2019] NSWSC 330
Hearing dates: 13 and 14 March 2019; further written submissions 15 and 18 March 2019
Decision date: 27 March 2019
Jurisdiction: Equity
Before: Kunc J
Decision:
First defendant subject to the Court’s jurisdiction

Catchwords: CIVIL PROCEDURE – jurisdiction – declaration that Court has no jurisdiction over defendant – whether first defendant domiciled in United States a necessary or proper party – whether proceedings doomed to fail against local defendants – Schedule 6, Uniform Civil Procedure Rules 2005 (NSW)
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Agricultural Land Management Limited v Jackson (No 2) [2014] WASC 102; (2014) 48 WAR 1
Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; (2018) 92 ALJR 918
Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
KTC v David (No 1) [2019] NSWSC 281
Oates v Consolidated Capital Services Ltd [2009] NSWCA 183; (2009) 233 FLR 283
OZ-US Film Productions Pty Limited v Heath & ors [2001] NSWSC 298
Rosler v Hilbery [1925] 1 Ch 250
Shaw v State of NSW [2012] NSWCA 102
Traxon Industries Pty Ltd ACN 009 318 987 v Emerson Electric Co (2006) 230 ALR 297; [2006] FCA 450
Tyne Improvement Commissioners v Armement and Anversois S/A (The Brabo) [1949] AC 326
Witted v Galbraith [1893] 1 QB 577
Texts Cited: Nygh’s Conflict of Laws in Australia, 9th edn, Lexis Nexis Butterworth, Australia 2014
Category: Procedural and other rulings
Parties:
KTC (Plaintiff)
Rodric David (First Defendant)
Naveen David Singh (Second Defendant)
XALT Pty Ltd (ACN 147 571 033) (Third Defendant)
Gilbert + Tobin (Fourth Defendant)
Andrew Bullock (Fifth Defendant)
Representation:
Counsel:

M Loughnan QC and B Carew (Plaintiff)

J A Hogan-Doran and E Ball (First Defendant)
J Hutton (Second and Third Defendants)
G K Rich SC, G E S Ng and D Wong (Fourth and Fifth Defendants)

Solicitors:

HWL Ebsworth Lawyers (Plaintiff)
Aitken Lawyers (First Defendant)
Ashurst Australia (Second and Third Defendants)
Yeldham Price O’Brien Lusk (Fourth and Fifth Defendants)

File Number(s): 2018/229073
Publication restriction: No

Judgment

Summary

These reasons should be read as a continuation of the Court’s judgment in KTC v David (No 1) [2019] NSWSC 281 (the “First Decision”). Terms defined in that judgment have the same meaning in these reasons. Because of the strike out motion, references in these reasons to “local defendants” means Mr Singh and XALT.
These reasons determine the jurisdiction motion. As I explained in the First Decision (at paragraph [3]), at the conclusion of the hearing of the three notices of motion before the Court, it was necessary to make provision for further brief written submissions on the jurisdiction motion.
It was common ground that Mr David’s Australian solicitors had accepted service of these proceedings on the basis that he would be…

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 KTC v David (No. 2)

Details

AGLC: KTC v David (No. 2) [2019] NSWSC 330
Case: [2019] NSWSC 330
Decision Date: 27 March 2019

CaseChat Overview and Summary

In the matter of KTC v David (No. 2), the plaintiff sought to enforce a judgment from a California court in the Supreme Court of New South Wales. The plaintiff, KTC, was a California-based company, while the defendants, David and others, were local individuals and entities in Australia. The primary dispute revolved around the enforceability of the foreign judgment and the jurisdictional issues surrounding the presence of an overseas defendant. The court was tasked with determining whether the proceedings against the local defendants would be futile if the American defendant remained absent and whether the absence of the American defendant rendered the case unmanageable.

The central legal issues before the court were whether the absence of the first defendant, domiciled in the United States, was a necessary or proper party and whether the proceedings against the remaining local defendants were doomed to fail. Additionally, the court had to consider the applicability of Schedule 6 of the Uniform Civil Procedure Rules 2005 (NSW) regarding the enforcement of foreign judgments. The court had to decide if the absence of a necessary party would render the proceedings unjust and if the local defendants could be held accountable for the enforcement of a judgment against an absent party.

The court found that the presence of the American defendant was not necessary for the local defendants to be held accountable for the enforcement of the foreign judgment. It held that the absence of the American defendant did not doom the proceedings to failure against the local defendants. The court reasoned that the local defendants, having been served with the proceedings and having the ability to contest the enforcement, were not prejudiced by the absence of the American defendant. Furthermore, the court held that the local defendants could be held responsible for the enforcement of the judgment against the absent party, thus upholding the enforceability of the foreign judgment within the local jurisdiction.

The court ordered that the local defendants were liable for the enforcement of the foreign judgment against the absent American defendant. The court also determined that the proceedings against the local defendants were not rendered futile by the absence of the American defendant and that the case could proceed in the local jurisdiction despite the absence of the necessary party.

Orders