Loh v Soh
[2013] WASC 244
•27 JUNE 2013
LOH -v- SOH [2013] WASC 244
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 244 | |
| Case No: | FRJ:1/2012 | 20 JUNE 2013 | |
| Coram: | MASTER SANDERSON | 27/06/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Judgment set aside | ||
| A | |||
| PDF Version |
| 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
- 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 Act 1991 (Cth) (the Act). In particular reliance was placed on s 7. Relevantly that section reads as follows:
(1) A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992, to have the registration of the judgment set aside.
(2) Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:
(a) must set the registration of that judgment aside if it is satisfied:
(i) that the judgment is not, or has ceased to be, a judgment to which this Part applies.
(Page 4)
5 It was common ground between the parties as at the date the sequestration order was made in Singapore the Foreign Judgment ceased to be a judgment to which s 7(2) of the Act applied. The real question between the parties was whether the Foreign Judgment was taken to be registered on the date the application was made or on the date the order for registration was made. The applicant contended the former; the respondent the latter.
6 This question was considered by Justice Lyon of the Queensland Supreme Court in Ellis v Dariush-Far [2007] QSC 142. Her Honour concluded the registration dated from the date the application was made. The decision went on appeal. The judgment of the Court of Appeal was delivered by Keane JA (with whom Williams JA & Daubney J agreed). His Honour concluded the registration of the judgment dated from the date the order was made: see Ellis v Dariush-Far [2007] QCA 398.
7 Keane JA referred to s 6 of the Act which deals with 'Application for, and Effect of, Registration of Foreign Judgments'. The relevant provisions are as follows:
(1) A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:
(a) the date of the judgment; or
(b) where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;
to have the judgment registered in the court.
...
(6) A judgment is not to be registered if at the date of the application:
(a) it has been wholly satisfied; or
(b) it could not be enforced in the country of the original court.
This provision is a command directed to the court by which an application for registration of a judgment is to be decided. It is not a command directed to a judgment creditor not to apply for registration of a judgment if the judgment has been satisfied or cannot be enforced. The determination of the issue whether the judgment debt has been satisfied or is unenforceable is clearly a matter for the court required to decide whether
(Page 5)
- or not to register the judgment. The occasion for that decision is necessarily the date of the determination whether the judgment debt has been satisfied or is unenforceable. It would do scant justice to the legislature to attribute to it the intention that a court should register a judgment which had been satisfied or had become unenforceable at the date when the court makes the decision to register the judgment merely because, at the time when the application was filed, the judgment was unpaid and enforceable [34].
9 If the application for registration of the Foreign Judgment had been heard on 27 June 2012 rather than the following day then arguably the registration would have been in all respects proper and not liable to be set aside. There may also be an argument the hearing in chambers in this court on 28 June 2012 occurred before the sequestration order was made by the High Court in Singapore. There is in fact no evidence of what time the respective orders were made but it is conceivable the order for registration was made prior to the sequestration order. However in my view it is proper to assume both orders were made on the same day. Therefore as at the date the Foreign Judgment was registered it was unenforceable. It therefore should be set aside.
10 Counsel for the applicant advanced a number of arguments as to why I ought not follow the decision of the Queensland Court of Appeal in Ellis. While these arguments were ingenious and well articulated there is only two that require attention. First, it was submitted the decision was obiter and I was not bound to follow it. It is the case Keane JA dismissed the appeal on other grounds. His Honour then set out the argument in relation to the relevant date of registration and said;
It is not strictly necessary to deal with this contention for the reasons which I have given; but, because this contention concerns the construction of the Act in relation to an important point of practice, it is desirable to deal with the point [30].
11 Although there is force in counsel's submissions the fact the court dealt directly with the point and explicitly determined the issue in my view provides good grounds for following what the court has to say. This was no incidental consideration of the question. This was a carefully reasoned analysis of the import of the Act. We are dealing with Commonwealth legislation and a decision which has stood for six years. Unless I thought the decision was clearly wrong I should follow it. I do not think it was clearly wrong and I did follow it.
12 The second argument made by counsel was O 44A (which is in slightly different terms to the Queensland equivalent) is drafted in such a
(Page 6)
- way to suggest registration would operate from the date of the application. That does appear to be the case. The affidavit in support of the application referred to in O 44A r 4 requires the affidavit dealing with all matters therein referred to be filed with the application. There is no requirement to update the evidence as at the date of the hearing. But whatever may be the intent of O 44 it cannot run counter to the proper interpretation of the Act itself. An argument to the contrary put by counsel must fail.
13 There is one final point which should be mentioned. As at the date the application for registration of the Foreign Judgment was made the application for a sequestration order in Singapore was on foot. But there is no mention of the application in Singapore in the affidavit in support of the application to register. There is nothing in O 44A r 4 which would require such an application to be disclosed. But applications for registration of a Foreign Judgment are made ex parte. There is no reason why the obligation of full and frank disclosure on an ex parte application should not apply to applications under O 44A. It is open to question what effect such disclosure may have made in this case. But the fact remains it should have been made and the fact it was not made was a serious omission.
14 I will hear the parties as to the precise form of orders and as to costs.
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