Lewis v Lamb - [2004] NSWSC 322

CITATION: Lewis v Lamb [2004] NSWSC 322

HEARING DATE(S): 8 & 21 April 2004

JUDGMENT DATE:
21 April 2004

JURISDICTION:
Common Law

JUDGMENT OF: Hamilton J

DECISION: Stay of execution granted in respect of judgment registered under Foreign Judgments Act 1991 (Cth).

CATCHWORDS: PROCEDURE [516] - Judgments and orders - Enforcement of judgments and orders - Execution against property - Warrants of seizure and sale or writ of fieri facias - Practice - Other cases - New South Wales - Stay of execution - Judgment registered under Foreign Judgments Act 1991 (Cth) - Principles on which execution may be stayed.

LEGISLATION CITED: Foreign Judgments Act 1991 (Cth) s 6(7)
Judiciary Act 1903 (Cth) s 78B
Supreme Court Act 1970 s 23
Supreme Court Rules 1970 Part 42 r 12, Part 44 r 5, Part 59A

CASES CITED: Australian Workers' Union v Pilkington (Aust) Ltd (2000) 101 FCR 35
Philip Morris (Aust) Ltd v Nixon [1999] FCA 1281
The State Bank of Victoria v Parry [1989] WAR 240
Ritchie's Supreme Court Procedure [6.1.7]

PARTIES :
Peter Lawrence Lewis (P)
Russell William Lamb (D)

FILE NUMBER(S): SC 10911/04

COUNSEL: N A Cotman SC & J T Johnson (P)
S J Motbey (D)

SOLICITORS: Kemp Strang (P)
Lyons & Lyons (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HAMILTON J

WEDNESDAY, 21 APRIL 2004

10911/04 PETER LAWRENCE LEWIS v RUSSELL WILLIAM LAMB
JUDGMENT

1 HIS HONOUR: This is an application for a stay of execution of a judgment. The judgment concerned results from the registration in this Court of a judgment in the High Court of New Zealand at Auckland. The registration was effected under the provisions of the Foreign Judgments Act 1991 (Cth) (“the FJA”) and Part 59A of the Supreme Court Rules 1970 ("the SCR"). The judgment is a judgment in favour of Peter Lawrence Lewis (“Lewis”) against Russell William Lamb (“Lamb”). The amount of the judgment is some $NZ400,000. These gentlemen and entities associated with them are also involved in internecine strife in Australia. That takes the form for present purposes of proceedings in the Equity Division of this Court, the hearing of which has occupied more than 70 days before me. Oral submissions in those proceedings are at an end. Some written submissions are outstanding. It is hoped those written submissions will be received before and judgment will be able to be reserved on 4 May 2004. Lamb, against whom the judgment in these proceedings has been entered, is not himself a party to the claim in those proceedings, but he is the controller of Lamru Pty Limited ("Lamru"), which is the principal player on his side of the record. Kation Pty Limited ("Kation") is the corresponding player on the other side of the record, but Lewis himself is also a party.

2 At one stage it was suggested that a constitutional issue would arise on the hearing of this application and that it would be necessary to give notice of the proceedings…

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 Lewis v Lamb

Details

AGLC: Lewis v Lamb [2004] NSWSC 322
Case: [2004] NSWSC 322
Decision Date: 21 April 2004

CaseChat Overview and Summary

The matter before the court involved Lewis, the plaintiff, and Lamb, the defendant, in a dispute concerning the enforcement of a foreign judgment in Australia. The case was heard in the Supreme Court of New South Wales. Lewis sought to enforce a judgment obtained against Lamb in a foreign jurisdiction, which had been registered in Australia under the Foreign Judgments Act 1991 (Cth). Lamb, however, opposed the enforcement, seeking a stay on the grounds that the Australian court should not compel the execution of the foreign judgment.

The primary legal issue the court needed to decide was whether the Australian court should stay the enforcement of the foreign judgment. This involved an examination of the principles governing the stay of execution of foreign judgments in Australia. Specifically, the court had to consider the circumstances under which a judgment registered under the Foreign Judgments Act 1991 (Cth) might be stayed and whether such principles applied in this case.

The court, in its reasoning, considered the statutory framework provided by the Foreign Judgments Act 1991 (Cth) and relevant case law. It noted that a stay of execution might be granted if there were exceptional circumstances, such as the existence of a pending proceeding in Australia that could affect the outcome of the foreign judgment, or if enforcing the judgment would be unjust. The court concluded that, in this instance, there were no exceptional circumstances warranting a stay of execution. Consequently, the court dismissed Lamb's application and ruled that the enforcement of the foreign judgment could proceed.

The final orders of the court were that Lamb's application for a stay of execution of the foreign judgment was dismissed. The court confirmed that Lewis was entitled to enforce the judgment against Lamb's property in Australia, subject to the terms and conditions of the Foreign Judgments Act 1991 (Cth).

Orders