Legatum Limited v Salim

[2016] NSWSC 298

Supreme Court

New South Wales

Medium Neutral Citation:	Legatum Limited v Salim [2016] NSWSC 298
Hearing dates:	18 March 2016
Date of orders:	18 March 2016
Decision date:	18 March 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1)   Judgment for the Plaintiff against the Defendant in the sum of $1,005,690.14 United State Dollars (US Dollars). (2)   Interest on the sum of $690,533.00 US Dollars for as long as the amount remains unpaid at the rate of 1.82171% per annum from 19 March 2016 until paid in full. (3)   The Defendant is to pay the Plaintiff’s costs of this proceeding, as agreed or assessed.
Catchwords:	FOREIGN JUDGMENT – judgment obtained in Dubai – orders sought made
Cases Cited:	Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583
Category:	Principal judgment
Parties:	Legatum Limited (Plaintiff) Arif Salim (Defendant)
Representation:	Solicitors: Mr M Youssef HWL Ebsworth Lawyers (Plaintiff)
File Number(s):	2016/74895
Publication restriction:	None

Judgment

1. In September 2015 Legatum Limited and Mr Salim litigated its claim, that he had sabotaged and wrongfully interfered with the proper functioning of its IT system, in the Dubai International Financial Centre Court in Dubai. Those claims and alleged breaches of Mr Salim’s employment agreement and a confidentiality undertaking, were in issue in the proceedings. Mr Salim unsuccessfully defended Legatum’s claims, Justice Sir Richard Field giving judgment in Legatum’s favour on 11 November 2015. On 9 December, his Honour made orders as to damages, costs and interest against Mr Salim.

2. Approaches to Mr Salim since have received no response. Legatum now seeks to register and enforce the Dubai Court’s judgment in this Court. Since service of the application there has also been no contact made by Mr Salim with Legatum’s solicitors.

3. The orders now sought are:

Judgment for the Plaintiff against the Defendant in the sum of $1,005,690.14 United State Dollars (US Dollars).

Interest on the sum of $690,533.00 US Dollars for as long as the amount remains unpaid at the rate of 1.82171% per annum from 19 March 2016 until paid in full.

The Defendant is to pay the Plaintiff’s costs of this proceeding.

4. The application was supported by affidavits sworn by Mr Whately, Legatum’s solicitor and Mr White, a licensed commercial agent who spoke to Mr Salim when the summons initiating these proceedings was served last week. The evidence established that copies of the judgment and orders sought to be registered and enforced by the summons initiating these proceedings, as well as supporting affidavits, have been served.

5. Mr Salim did not appear to oppose the application for registration and enforcement of the judgment, when it came on for hearing today. It accordingly proceeded ex parte.

6. In Bhushan Steel Ltd v Severstal Export GmbH [2012] NSWSC 583 Sackar J discussed the principles governing the enforcement of judgments at common law at [146] - [151]. At [146] the four conditions which must be satisfied were identified to be:

“(a)   The foreign court must have exercised a jurisdiction that Australian courts recognise

(b)   The foreign judgment must be final and conclusive

(c)   There must be an identity of the parties; and

(d)   If based on a judgment in personam the judgment must be for a fixed debt.”

7. At [148], his Honour observed:

“The forum will recognise the foreign court has exercised jurisdiction if one of two conditions are satisfied: (1) the defendant was served with originating process while present or resident of the foreign jurisdiction, or (2) the defendant has voluntarily submitted to that jurisdiction. A party may voluntarily submit to the jurisdiction of the foreign court by either appearing as a party to the foreign proceedings (Norsemeter Holdings AS v Boele (No 1) [2002] NSWSC 370 per Einstein J at [15] see also Emanuel v Symon [1908] 1 KB 302 at 309 per Buckley LJ) or by agreeing in advance to accept the jurisdiction of the foreign court.”

8. I am satisfied that the evidence establishes that these four considerations have been met.

9. The parties to these and the Dubai proceedings are identical. Mr Salim did not challenge the Dubai Court’s jurisdiction. He filed an acknowledgment of service as well as a defence in those proceedings and he was represented at the hearing, following which orders were made against him, after judgment was delivered. The final orders made on 9 December 2015 have not been challenged.

10. The jurisdiction which the Dubai court exercised is a jurisdiction recognised by this Court. Mr Salim submitted to that jurisdiction by his appearance as a party in the proceedings, where he defended Legatum’s claims on their merits, by giving evidence and advancing submissions.

11. The Dubai Court’s judgment and orders are final. They bind both parties, are not conditional and have not been stayed or set aside. Mr Salim gave evidence that he was an Australian citizen and as to his residential address here, where he has been served.

12. In the result I am satisfied that Legatum has met the onus which falls upon it to establish that the four conditions discussed in Bhushan Steel have been satisfied on the evidence. In those circumstances the Court’s discretion to make the orders sought must be exercised.

13. The usual order as to costs is that they follow the event. Costs as agreed or assessed should thus be ordered in Legatum’s favour.

Orders

14. For these reasons I order that:

1. Judgment for the Plaintiff against the Defendant in the sum of $1,005,690.14 United State Dollars (US Dollars).

2. Interest on the sum of $690,533.00 US Dollars for as long as the amount remains unpaid at the rate of 1.82171% per annum from 19 March 2016 until paid in full.

3. The Defendant is to pay the Plaintiff’s costs of this proceeding, as agreed or assessed.

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