Marks v Australia and New Zealand Banking Group Ltd

In the Federal Court of Australia, Judge Burnett considered an application by Clare Elizabeth Marks (the debtor) to set aside a bankruptcy notice issued by Australia and New Zealand Banking Group Limited (the creditor). The bankruptcy notice was based on a judgment of the High Court of the Republic of Singapore, registered in Australia under the *Foreign Judgments Act 1991* (Cth), which ordered the debtor to pay AUD$11,102,778.56 to the creditor. The underlying dispute arose from the debtor's guarantee of a loan made by the creditor to her de facto husband and a company he controlled.

The primary legal issue before the court was whether the Singaporean judgment, which was obtained in proceedings where the debtor had submitted to the jurisdiction of Singaporean courts, should be set aside. The debtor contended that the creditor had also commenced separate recovery proceedings in Queensland concerning the same debt, seeking to enforce a mortgage over her property provided as security for the loan. This, she argued, created a situation where the creditor was pursuing parallel actions for the same debt, potentially leading to an abuse of process or an inequitable outcome.

Judge Burnett reasoned that the debtor had contractually agreed to submit to the jurisdiction of Singaporean courts for matters relating to the guarantee. The Singaporean proceedings were initiated to recover monies owing under that guarantee, and the debtor had been duly served. While the creditor had also commenced separate proceedings in Queensland to enforce a mortgage over the debtor's property, this action was distinct from the Singaporean money proceedings. The court found that the existence of the Queensland recovery proceedings did not invalidate the Singaporean judgment, particularly as the debtor had not demonstrated that the Singaporean court lacked jurisdiction or that the judgment was obtained by fraud or was contrary to public policy. The court noted that the creditor's statement of claim in the Singaporean proceedings did mention the security but did not seek relief in respect of it, indicating that the primary focus of those proceedings was the recovery of the debt itself.

The court ultimately dismissed the debtor's application to set aside the bankruptcy notice.