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Kuhadas v Gomez

Kuhadas v Gomez

Case [2014] FCCA 1130 30 May 2014

Jurisdiction

Appeal

Res Judicata

Statutory Construction

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FEDERAL CIRCUIT COURT OF AUSTRALIA

KUHADAS v GOMEZ

[2014] FCCA 1130

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – bankruptcy notice based on foreign judgment registered pursuant to order made under the Foreign Judgments Act 1991 (Cth) (FJ Act) – whether bankruptcy courts have power to go behind an order made under FJ Act to register a foreign judgment – whether judgment debtor has given substantial reasons for questioning whether judgment entered in Singapore High Court and registered under s.6 of the FJ Act is liable to be set aside under s.7(2)(a)(ix) of the FJ Act on the ground that the Singapore judgment has been discharged – whether Singapore judgment was discharged by agreement – bankruptcy notice set aside.

Legislation:

Bankruptcy Act 1924-1950, s.56(2)(a)

Bankruptcy Act 1966, ss.40(1), 40(1)(g), 52(1), 52(1)(c)

Foreign Judgments Act 1991 (Cth), ss.5, 6, 6(1), 6(3), 6(7), 7, 7(1), 7(2)(a), 7(2)(a)(ix), 14
Foreign Judgments Regulations 1992 (Cth), Schedule Superior Courts, reg.5, item 24
Judiciary Act 1903 (Cth), s.79
Uniform Civil Procedure Rules 2005 (NSW), r.53.3

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd [2013] FCAFC 29
Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588
Attorney General of Belize & Ors v Belize Telecom Ltd & Anor [2009] UKPC 10
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Butts v O’Dwyer (1952) 87 CLR 267
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Corney v Brien (1951) 84 CLR 343
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7
Heimann v Commonwealth of Australia (1938) 38 SR (NSW) 691

Marinchek v Cabport Pty Ltd [2010] NSWCA 334
Olivieri v Stafford (1989) 91 ALR 91
Re Riviere; Ex parte Original Mont de Piete Ltd (1919) 20 SR (NSW) 77
Re Vernon Arnfield (1925) 25 SR (NSW) 517
Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206
The Moorcock (1889) 14 PD 64
Wilkinson v Osborne & Anor (1915) 21 CLR 89
Wolff v Donovan (1991) 29 FCR 480

Wren v Mahony (1972) 126 CLR 212

Applicant:

VIVEKANANDA KUHADAS

Respondent:

KEVIN BENNETT GOMEZ

File Number:

SYG 743 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

12 May 2014

Delivered at:

Sydney

Delivered on:

30 May 2014

REPRESENTATION

Applicant in person.

Solicitors for the Respondent:

Mr Christiansen
Sparke Helmore Lawyers

ORDERS

Bankruptcy notice BN 169661 issued on 26 February 2014 against the applicant is set aside.
The respondent pay the applicant’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 743 of 2014

VIVEKANANDA KUHADAS

Applicant

And

KEVIN BENNETT GOMEZ

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Mr Kuhadas, applies to set aside a bankruptcy notice that was served on him on 4 March 2014.
The bankruptcy notice demands payment of $1,253,214.38. That represents the Australian dollar equivalent of a judgment for SGD1,211,289.70 the respondent, Mr Gomez, obtained against Mr Kuhadas in the High Court of the Republic of Singapore (High…

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 Kuhadas v Gomez

Details

AGLC: Kuhadas v Gomez [2014] FCCA 1130
Case: [2014] FCCA 1130
Decision Date: 30 May 2014

CaseChat Overview and Summary

In *Kuhadas v Gomez*, the applicant sought to set aside a bankruptcy notice that was based on a foreign judgment registered in Australia pursuant to the *Foreign Judgments Act 1991* (Cth). The respondent had obtained a judgment in the Singapore High Court, which was subsequently registered in Australia. The applicant, as the judgment debtor, contended that the bankruptcy notice should be set aside.

The primary legal issues before the court were whether bankruptcy courts possess the power to review or "go behind" an order made under the *Foreign Judgments Act* for the registration of a foreign judgment, and whether the applicant had provided substantial reasons to question the validity of the registered Singapore judgment. Specifically, the applicant argued that the Singapore judgment had been discharged by agreement, which would render it liable to be set aside under section 7(2)(a)(ix) of the *Foreign Judgments Act*.

Judge Manousaridis determined that bankruptcy courts do have the power to consider whether a registered foreign judgment is liable to be set aside under the *Foreign Judgments Act*. The court found that the applicant had presented substantial reasons to question the enforceability of the Singapore judgment, as there was evidence suggesting the judgment had been discharged by agreement between the parties. Consequently, the court concluded that the bankruptcy notice, which was predicated on this potentially discharged judgment, ought to be set aside.

Orders