Mendikwae Ltd v Mezin
[2000] QSC 56
•20 March 2000
SUPREME COURT OF QUEENSLAND
CITATION: Mendikwae Ltd v Mezin [2000] QSC 056 PARTIES: MENDIKWAE LIMITED (Applicant)
and
ADEL IBRAHIM EL-MEZIN (Respondent)FILE NO/S: No 1808 of 2000 DIVISION: Trial DELIVERED ON: 20 March 2000 DELIVERED AT: Brisbane HEARING DATE: 14 March 2000 ORDER: I therefore register the judgment under Part 2 of the Foreign Judgments Act1991 (Cth) and make orders in terms of the draft CATCHWORDS: PRACTICE – Jurisdiction – Registration of a Foreign Judgment – Substituted service
LEGISLATION: Supreme Court (Foreign Judgments) Rules Order 1993
Foreign Judgments Act1991 (Cth)COUNSEL: Mr M.M. Varitimos for the Applicant SOLICITORS: Cranston McEachern for the Applicant
Respondent in person
This is an application for registration of a foreign judgment obtained in the National Court of Justice of Papua New Guinea on 16 December 1998. The judgment in favour of the applicant as plaintiff was for the sum of K294,611.82 together with interest of K9,104.72 to date of judgment and thereafter at K64.57 per day.
The judgment was a judgment given in default of the respondent’s giving notice of intention to defend. There was judgment in default for damages to be assessed which were subsequently assessed in the sum to which I have referred.
The writ of summons issued on 20 October 1998. It is unnecessary to analyse the statement of claim endorsed on the writ of summons in any detail. It suffices to say that it alleges that the applicant and respondent were equal shareholders in a company which “has been ordered by the National Court of Justice to be placed into liquidation”. The applicant and the respondent had guaranteed payment of moneys advanced to that company. It is asserted that the applicant was called upon to meet the whole of the obligations of both the applicant and the respondent as guarantors to repay that money when the respondent left New Guinea and the proceedings instituted against the respondent in New Guinea on 20 October 1998 sought to recover from him half the amount the applicant was obliged to pay as joint guarantor together with interest.
It emerges from the material, as well as the default judgment, that the applicant obtained an order for costs that have been taxed at K7,616.40.
The respondent appeared in person initially to oppose the registration of the judgment. He was not legally represented, although he has prepared an affidavit. He has also in effect given oral evidence on this application indicating clearly that if in the circumstances he may not successfully oppose registration of the judgment in Queensland he desires to take steps necessary to set the registration of the judgment aside if it be registered.
I will not embark upon a detailed analysis of the reasons the respondent has given for opposing the registration and/or desiring to have any registration effected set aside. Suffice it to say that his case is that the judgment obtained against him was obtained fraudulently. He says that an order for substituted service of the writ of summons was obtained when it clearly should not have been so obtained. He says that he had no knowledge that proceedings had even been taken against him until efforts were made in September 1999 to enforce the judgment against him.
In fact it emerges that the respondent has taken steps to have the default judgment obtained against him by the applicant set aside on a number of occasions. He says however that a legal representative he retained and paid to take the steps necessary to have the judgment set aside failed to do so, for reasons to which he cannot swear, but he suspects they may include fear of the persons connected with the applicant who have defrauded him out of hundreds of thousands of kina to which he was entitled.
It is his contention that the applicant at material times was controlled by a person who enjoyed significant wealth and power and who procured various persons in Papua New Guinea to have him falsely charged and ultimately in effect deported from that country after he was cleared of the “trumped up” criminal charges. He says that the whole of his troubles stemmed from the desire of the person controlling the applicant to have him removed from the country so that he could end up with the whole of a hospital in which the applicant and respondent had equal shares – at no cost to him.
I have indicated I think in broad terms the general tenor of the evidence given by the respondent in this case. Having regard to the conclusion to which I have come as to the order that should be made on the application for registration of the judgment at this stage it is unnecessary for me to analyse in more detail the evidence.
A full transcript was made of all the evidence relied upon by the respondent in opposition to the application and a transcript of that material is available to the applicant. Should the judgment be registered and the respondent seek to have the registration set aside then the whole of or at least a very substantial part of the material upon which the respondent will rely has been sworn to and recorded.
Part of the complaint of the respondent is that the order for substituted service should never have been made – there was no prospect of the issue of the writ against him ever coming to his notice having regard to the terms of the order made, and it was quite within the capacity of the applicant to discover his whereabouts and address in Australia. He says that in fact there seems to have been little problem in the applicant discovering where he resides with his family for the purpose of serving on him this application to register the default judgment obtained against him in New Guinea in 1998. He is currently employed as a medical practitioner at a Queensland public hospital and has been an Australian citizen for many years.
Support for the respondent’s complaint can be found in an affidavit of Gregory Thomas Toop sworn on 13 December 1999. Mr Toop is a lawyer presently retained by the respondent to make further efforts to have the default judgment set aside. Efforts made to date to set aside the default judgment have not succeeded and a National court refused to set aside the judgment as late as 8 February 2000. Consideration has apparently been given to applying for leave to appeal.
Under s 6(1) of the Foreign Judgments Act 1991 (Commonwealth) (“the Act”) the applicant as judgment creditor under the default judgment obtained against the respondent on 16 December 1998 may apply to this Court to have that judgment registered.
The relevant rules of court are the Supreme Court (Foreign Judgments) Rules Order 1993.
The affidavit material in my view establishes that the applicant is entitled to have its default judgment registered in this Court.
Under s 6(4) of the Act I must state a period within which an application may be made by the respondent under s 7 of the Act to have the registration of the judgment in Queensland set aside.
Under s 7(2) it is provided that if a judgment debtor duly applies to have the registration set aside this Court must set that registration aside if it is satisfied inter alia –
“(v)That the judgment debtor being the defendant in the proceedings in the original court did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear.
(vi) That the judgment was obtained by fraud.”
This whole matter seems to me to be complicated by the lack of professional consideration given to the matters raised by the respondent. No doubt that will be remedied should the respondent decide to seek to have the registration of the judgment set aside.
It seems that the respondent at all material times was an Australian citizen. Undoubtedly the cause of action brought against him after he had in effect been expelled from Papua New Guinea arose in that country. On the other hand when the action was commenced it seems clear that he resided in Australia to the knowledge of the applicant. No argument was addressed as to the relevant Rules of Court concerning the method of effecting service of proceedings instituted in Papua New Guinea against a person not then a national of that country but in fact an Australian citizen domiciled and residing in Australia at a place which on all the material advanced was readily ascertainable so that personal service might be effected on him of the initiating proceedings in the National Court of Justice of Papua New Guinea. It may be perhaps that the writ of summons with endorsed statement of claim could not itself have been served upon the respondent in Australia but that some notice of such proceedings might have been personally served. However no argument was addressed to me on this point and it is inappropriate that I make any effort to investigate such matters on an application of this sort. Undoubtedly they are matters that will be investigated prior to the determination of any application which the respondent may make to have the registered judgment set aside.
In my view having regard to the express terms of s 6 of the Act the applicant is entitled to have its default judgment registered in this Court.
I indicate however that in my view having regard to the prospective difficulties in the way of the solicitors for the applicant in Brisbane obtaining necessary information and instructions from their client in Papua New Guinea and presumably difficulties in the way of the respondent obtaining advice on matters relating to service from his legal representatives in New Guinea I propose to fix a period of 28 days from the date of this order during which the judgment debtor may apply to have registration set aside.
I therefore make an order in terms of the draft which I sign today and place with the papers.
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