LOH -v- SOH [2013] WASC 244

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 244
Case No:	FRJ:1/2012	Heard:	20 JUNE 2013
Coram:	MASTER SANDERSON	Delivered:	27/06/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Judgment set aside
Category:	A
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Parties:	LAI HAR LOH GUAN KIAT SOH
Catchwords:	Registration of foreign judgment Date from which registration takes effect Failure to disclose bankruptcy proceedings on foot in jurisdiction in which original judgment obtained
Legislation:	Nil
Case References:	Ellis v Dariush-Far [2007] QCA 398 Ellis v Dariush-Far [2007] QSC 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LOH -v- SOH [2013] WASC 244 CORAM : MASTER SANDERSON HEARD : 20 JUNE 2013 DELIVERED : 27 JUNE 2013 FILE NO/S : FRJ 1 of 2012 BETWEEN : LAI HAR LOH

Applicant

AND

GUAN KIAT SOH

Respondent

Catchwords:

Registration of foreign judgment - Date from which registration takes effect - Failure to disclose bankruptcy proceedings on foot in jurisdiction in which original judgment obtained

Legislation:

Nil

Result:

Judgment set aside

(Page 2)

Category: A

Representation:

Counsel:

Applicant : Mr W R Holmes

Respondent : Mr A J N Aristei

Solicitors:

Applicant : Tang Legal

Respondent : James Chong Lawyers

Case(s) referred to in judgment(s):

Ellis v Dariush-Far [2007] QCA 398
Ellis v Dariush-Far [2007] QSC 142

(Page 3)

1 MASTER SANDERSON: This is an application by the respondent to set aside a foreign judgment which was registered in this court. After hearing argument I indicated to the parties I would set aside the registration of the judgment. I said I would publish reasons at a later date. These are those reasons.

2 There is no dispute as to the essential facts. The applicant entered judgment in the High Court of Singapore in two consolidated actions against the respondent on 12 April 2011. Throughout the submissions this was referred to as 'the Foreign Judgment'. I will adopt that nomenclature. On 12 June 2012 the applicant applied ex parte to register the Foreign Judgment as a judgment of this court under O 44A r 3(1) of the Rules of the Supreme Court 1971 (WA). As is required by r 4 the application was accompanied by an affidavit dealing with all the matters referred to in r 4(1)(b). No complaint is made as to the form of the application or the contents of the affidavit in support.

3 The application for registration of the Foreign Judgment came on before me in chambers on 28 June 2012. I made an order registering the judgment. On that very same day - 28 June 2012 - the High Court of Singapore made a sequestration order against the respondent pursuant to the Singapore Bankruptcy Act. The order was made on the petition of the applicant. In the affidavit in support of the application to register the Foreign Judgment no mention was made by the applicant of the bankruptcy proceedings in Singapore.

4 The relevant Act is the Foreign Judgments…

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 Loh v Soh

Details

AGLC: LOH -v- SOH [2013] WASC 244
Case: [2013] WASC 244
Decision Date: 27 JUNE 2013

CaseChat Overview and Summary

The matter of Loh v Soh came before the Federal Court of Australia. The dispute revolves around the registration of a foreign judgment in Australia, specifically the circumstances under which a foreign judgment may be registered, and the effect of undisclosed bankruptcy proceedings in the jurisdiction where the original judgment was obtained. The appellant, Loh, sought to register a foreign judgment in Australia, but the respondent, Soh, contested the registration on the basis that the appellant had failed to disclose ongoing bankruptcy proceedings in the jurisdiction where the original judgment was rendered.

The central legal issue before the court was whether the failure to disclose the bankruptcy proceedings in the foreign jurisdiction rendered the registration of the foreign judgment in Australia ineffective. The court had to determine the date from which the registration of the foreign judgment took effect and whether the failure to disclose such proceedings could be a ground for setting aside the registration. The court also needed to consider whether the appellant's omission to disclose the bankruptcy proceedings constituted a significant failure that would affect the validity of the registration.

The court held that the failure to disclose the bankruptcy proceedings in the foreign jurisdiction was a material omission that undermined the integrity of the registration process. The court found that such undisclosed proceedings could potentially impact the enforceability of the foreign judgment and the rights of other creditors involved. Consequently, the court determined that the appellant's failure to disclose the bankruptcy proceedings was a significant oversight that justified setting aside the registration of the foreign judgment. The court further held that the registration should be considered ineffective from the date when the bankruptcy proceedings were initiated, rather than from the date of registration.

Orders

Orders of the court

Judgment set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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