Marks v ANZ Banking Group Limited - [2014] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

Marks v ANZ Banking Group Limited [2014] QCA 102

PARTIES:

CLARE ELIZABETH MARKS
(appellant)
v
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
ACN 005 357 522
(respondent)

FILE NO/S:

Appeal No 7806 of 2013
SC No 2252 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2014

JUDGES:

Muir and Gotterson JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.Appeal dismissed.

2.Appellant to pay the respondent’s costs of the appeal on the standard basis.

CATCHWORDS:

PRIVATE INTERNATIONAL LAW – RECOGNITION, EFFECT AND ENFORCEMENT OF FOREIGN JUDGMENTS – UNDER LEGISLATION – ENFORCEMENT OF FOREIGN JUDGMENTS – REGISTRATION – SETTING ASIDE – where the appellant was a guarantor to a Facility Agreement issued by the respondent in Singapore – where the Facility Agreement contained a non-exclusive jurisdiction clause – where default occurred and the respondent commenced proceedings against the appellant in Singapore – where judgment entered on 27 December 2012 ordered the appellant to pay A$11,102,788.56 – where the respondent applied to the Queensland Supreme Court to register the judgment and was granted registration pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) – where the appellant sought to set aside the registration but the application was dismissed – whether the Singapore judgment was an abuse of process given that the respondent had commenced another action in Queensland for the recovery of possession of land – whether the High Court of Singapore had jurisdiction – whether the appellant submitted to the jurisdiction of Singapore – whether the Singapore judgment was for an ascertained amount of money – whether the registration of the foreign judgment should be set aside

Foreign Judgments Act 1991 (Cth), s 3, s 6, s 7(2), s 7(3), s 7(5)

ASIC v Lindberg (2009) 76 ACSR 181; [2009] VSC 566, cited
Branir Pty Ltd v Wallco Pastoral Co Pty Ltd (2006) 18 NTLR 127; (2006) 203 FLR 115; [2006] NTSC 70, distinguished
British South Africa Co v Companhia de Moçambique [1893] AC 602, distinguished
de Santis v Russo [2002] 2 Qd R 230 ; [2001] QCA 457, applied
Dresser (UK) Ltd v Falcongate Freight Management Ltd [1992] QB 502, distinguished
Duke v Andler [1932] SCR 734; [1932] 4 DLR 529, distinguished
Ex parte Jackson; Re Australasian Catholic Assurance Co Ltd (1941) 41 SR(NSW) 285; [1941] NSWStRp 41, cited
Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300, distinguished
Moore v Inglis (1976) 50 ALJR 589, distinguished
Re Forrest Trust [1953] VLR 246; [1953] VicLawRp 37, cited
Steadmark Pty Ltd v Bogart Lingerie Ltd [2013] VSC 402, distinguished
Thirteenth Corporation Pty Ltd v State (2006) 322 ALR 491; [2006] FCA 979, distinguished

COUNSEL:

The appellant appeared on her own behalf
J W Peden with D…

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 Marks v ANZ Banking Group Limited

Details

AGLC: Marks v ANZ Banking Group Limited [2014] QCA 102
Case: [2014] QCA 102
Decision Date: 6 May 2014

CaseChat Overview and Summary

In Marks v ANZ Banking Group Limited, the appellant, who was a guarantor for a Facility Agreement issued by the respondent in Singapore, contested the registration of a foreign judgment obtained against him by the respondent in Singapore. The Facility Agreement contained a non-exclusive jurisdiction clause. Following a default, the respondent initiated proceedings in Singapore, where a judgment was entered on 27 December 2012, ordering the appellant to pay A$11,102,788.56. The respondent subsequently applied to the Queensland Supreme Court to register the judgment under Part 2 of the Foreign Judgments Act 1991 (Cth). The appellant sought to set aside this registration, arguing that the Singapore judgment was an abuse of process due to the respondent's simultaneous proceedings in Queensland for the recovery of possession of land. The court was required to determine if the Singapore judgment was an abuse of process, whether the High Court of Singapore had jurisdiction, if the appellant had submitted to the jurisdiction of Singapore, and if the judgment was for an ascertained amount of money.

The court found that the Singapore judgment was not an abuse of process. It held that the respondent had jurisdiction to sue in Singapore and that the appellant had submitted to the jurisdiction by signing the Facility Agreement. The court also determined that the judgment was for an ascertained amount of money, thus meeting the statutory criteria for registration. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal on the standard basis.

Orders

Orders of the court

1.Appeal dismissed.

2.Appellant to pay the respondent’s costs of the appeal on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Marks v ANZ Banking Group Limited [2014] QCA 102
PARTIES:	CLARE ELIZABETH MARKS (appellant) v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (respondent)
FILE NO/S:	Appeal No 7806 of 2013 SC No 2252 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2014
JUDGES:	Muir and Gotterson JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1.Appeal dismissed. 2.Appellant to pay the respondent’s costs of the appeal on the standard basis.
CATCHWORDS:	PRIVATE INTERNATIONAL LAW – RECOGNITION, EFFECT AND ENFORCEMENT OF FOREIGN JUDGMENTS – UNDER LEGISLATION – ENFORCEMENT OF FOREIGN JUDGMENTS – REGISTRATION – SETTING ASIDE – where the appellant was a guarantor to a Facility Agreement issued by the respondent in Singapore – where the Facility Agreement contained a non-exclusive jurisdiction clause – where default occurred and the respondent commenced proceedings against the appellant in Singapore – where judgment entered on 27 December 2012 ordered the appellant to pay A$11,102,788.56 – where the respondent applied to the Queensland Supreme Court to register the judgment and was granted registration pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) – where the appellant sought to set aside the registration but the application was dismissed – whether the Singapore judgment was an abuse of process given that the respondent had commenced another action in Queensland for the recovery of possession of land – whether the High Court of Singapore had jurisdiction – whether the appellant submitted to the jurisdiction of Singapore – whether the Singapore judgment was for an ascertained amount of money – whether the registration of the foreign judgment should be set aside Foreign Judgments Act 1991 (Cth), s 3, s 6, s 7(2), s 7(3), s 7(5) ASIC v Lindberg (2009) 76 ACSR 181; [2009] VSC 566, cited Branir Pty Ltd v Wallco Pastoral Co Pty Ltd (2006) 18 NTLR 127; (2006) 203 FLR 115; [2006] NTSC 70, distinguished British South Africa Co v Companhia de Moçambique [1893] AC 602, distinguished de Santis v Russo [2002] 2 Qd R 230 ; [2001] QCA 457, applied Dresser (UK) Ltd v Falcongate Freight Management Ltd [1992] QB 502, distinguished Duke v Andler [1932] SCR 734; [1932] 4 DLR 529, distinguished Ex parte Jackson; Re Australasian Catholic Assurance Co Ltd (1941) 41 SR(NSW) 285; [1941] NSWStRp 41, cited Malaysia-Singapore Airlines Ltd v Parker (1972) 3 SASR 300, distinguished Moore v Inglis (1976) 50 ALJR 589, distinguished Re Forrest Trust [1953] VLR 246; [1953] VicLawRp 37, cited Steadmark Pty Ltd v Bogart Lingerie Ltd [2013] VSC 402, distinguished Thirteenth Corporation Pty Ltd v State (2006) 322 ALR 491; [2006] FCA 979, distinguished
COUNSEL:	The appellant appeared on her own behalf J W Peden with D…