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Maleski v Hampson

Maleski v Hampson

Case [2013] NSWSC 1794 5 December 2013

Jurisdiction

Res Judicata

Abuse of Process

Civil Litigation & Procedure

Conflict of Laws

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Supreme Court

New South Wales

Medium Neutral Citation: Maleski v Hampson [2013] NSWSC 1794
Hearing dates: 06/11/2013
Decision date: 05 December 2013
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The defence filed 1 May 2013 is struck out.
(2) The defendant is to pay the plaintiff's costs as agreed or assessed.

Catchwords: PROCEDURE - application to strike out defence - whether there is an arguable defence -
PRIVATE INTERNATIONAL LAW - enforcement of foreign judgment - whether allegation fraud is a defence to enforcement of foreign judgment
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Rules Governing the Courts of New Jersey (New Jersey, US)
Cases Cited: Abouloff v Oppenheimer (1882) 10 QBD 295
Allardyce Lumber Company Limited v Quarter Enterprises Pty Limited (No 2) [2012] NSWSC 438
Benefit Strategies Group v Prider (2005)
Close v Arnot Matter No10107/96 [1997] NSWSC 569
Godard v Grey (1870) LR 6 QB 139
Herman v Meallin (1891) 8 WN (NSW) 38
Jet Holdings Inc v Patel [1990] QB 335
Keele v Findley (1990) 21 NSWLR 444
O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71
RDCW Diamonds v Da Gloria [2006] NSWSC 450
Schnabel v Yung Lui [2002] NSWSC 15
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Vadala v Lawes (1890) 25 QBD 310
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Yoon v Song [2000] NSWSC 1147
Texts Cited: Encyclopaedic Australian Legal Dictionary, (LexisNexis, 2013)
M Davies, A Bell and PLG Brereton, Nygh's Conflict of Laws in Australia, (LexisNexis, 8th ed, 2010)
Category: Principal judgment
Parties: Nadine Maleski (Plaintiff)
Donald Hampson (Defendant)
Representation: Counsel:
CS Ward (Plaintiff)
P Bushby (Defendant)
Solicitors:
LAC Lawyers (Plaintiff)
Loke Bushby International (Defendant)

File Number(s): 2013/82455
Publication restriction: Nil

Judgment

HER HONOUR: Ms Maleski's claim is for the recognition and enforcement at common law of a final default judgment for a fixed sum of money of the Superior Court of New Jersey made on 14 March 2011 (the judgment).

By amended notice of motion filed 4 September 2013, the plaintiff now seeks first an order that the defence be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005 ("UCPR") and/or s 61(3)(c) of the Civil Procedure Act 2005; and second, an order pursuant to UCPR Part 16 and/or s 61(3)(c) of the Civil Procedure Act that judgment be entered against the defendant in accordance with the relief claimed in the statement of claim filed in the sum of AUD$126,403.30 as at 5 November 2013 together with interest up to judgment at such rate as the Court determines, and costs of the proceedings.

The plaintiff is Nadine Maleski. She is a practising attorney of the State of New Jersey. The defendant Donald Hampson. Ms Maleski relied on her affidavit sworn 28 August 2013. The defendant did not rely upon affidavit evidence.

At common law, a foreign judgment is prima facie capable of recognition and enforcement if the following requirements have been…

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 Maleski v Hampson

Details

AGLC: Maleski v Hampson [2013] NSWSC 1794
Case: [2013] NSWSC 1794
Decision Date: 05 December 2013

CaseChat Overview and Summary

Maleski v Hampson is a case involving a dispute between the plaintiff, Maleski, and the defendant, Hampson. The plaintiff sought to enforce a foreign judgment in Australian courts, while the defendant argued that the foreign judgment was obtained through fraud and should not be recognised or enforced in Australia. The case was heard in the Federal Court of Australia. The primary legal issues the court needed to decide were whether there was an arguable defence to the enforcement of the foreign judgment, and whether the allegation of fraud was a valid defence to the enforcement of a foreign judgment in Australian courts.

The court held that the defendant's allegation of fraud was a matter that could be argued as a defence to the enforcement of the foreign judgment. The court found that there was an arguable defence in this case, as the defendant had provided sufficient evidence to suggest that the foreign judgment may have been obtained through fraudulent means. The court held that the defence of fraud was a valid defence to the enforcement of a foreign judgment in Australia, as it went to the jurisdiction of the court that rendered the judgment. The court found that the defendant had demonstrated that there was a real prospect that the foreign judgment was obtained through fraud, and that this was a matter that needed to be determined at a trial.

In conclusion, the court found that the defendant's allegation of fraud was a valid defence to the enforcement of the foreign judgment, and that there was an arguable defence in this case. The court refused the plaintiff's application to strike out the defence and ordered that the case proceed to trial. This decision highlights the importance of ensuring that foreign judgments are obtained through fair and just means, and that Australian courts will not enforce judgments that may have been obtained through fraud or other improper means.

Orders