JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MOBI-LIGHT INC -v- KK MACHINERY PTY LTD & ANOR [2010] WADC 105
CORAM: PRINCIPAL REGISTRAR GETHING
HEARD: 7 JULY 2010
DELIVERED : 19 JULY 2010
FILE NO/S: CIV 712 of 2010
BETWEEN: MOBI-LIGHT INC
Plaintiff
AND
KK MACHINERY PTY LTD
First DefendantPAUL LAMARR
Second Defendant
Catchwords:
Summary judgment - Foreign judgment - Whether final and conclusive - Whether obtained by fraud - Effect of stay in foreign jurisdiction
Legislation:
Nil
Result:
Summary judgment awarded
Representation:
Counsel:
Plaintiff: Mr J MacLaurin
First Defendant : Mr A Hershowitz
Second Defendant : No appearance
Solicitors:
Plaintiff: Griffith Hack Lawyers
First Defendant : Paiker & Overmeire
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Abouloff v Oppenheimer & Co (1882) 10 QBD 295
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301
Australian and New Zealand Banking Group Limited v Cawood [1987] 1 Qd R 131
Benefit Strategies Group Inc v Prider (2005) 91 SASR 544
Blohn v Desser [1962] 2 QB 116
Close v Arnot, unreported, SCt of NSW; 10107 of 1996; 21 November 1997
Damberg v Damberg (2001) 52 NSWLR 492
De Santis v Russo [2000] QSC 065
Ellis v McHenry (1871) LR 6 CP 228
Godard v Gray (1870) LR6QB 139
Grant & Ors v Spaanderman & Anor, unreported; SCt of WA; Library No 8932; 21 June 1991
Grant v Easton (1883) 13 QBD 302
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Keele v Findley (1990) 21 NSWLR 444
Miliangos v George Frank (Textiles) Ltd [1976] AC 443
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (1992) 37 FCR 234
Morgan v Pallister [2004] WASC 188
Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331
Norman v Norman (No 2) (1968) 12 FLR 39
Norsemeter Holdings AS v Boele (No 1) [2002] NSWSC 370
Nouvion v Freeman (1889) 15 App Cas 1
Regie National des Usines Renalt SA v Zhang [2002] HCA 10; (2002) 210 CLR 491
Trainor Asia Ltd v Calverley [2007] WADC 124
Vadala v Lawes (1890) 25 QBD 310
Webster v Lampard (1993) 177 CLR 598
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
PRINCIPAL REGISTRAR GETHING: In this action, the plaintiff seeks to recover as a debt money said to owing pursuant to a judgment of the Third District Court in and for the Salt Lake County in the State of Utah ("Utah Court"). A copy of the judgment dated 13 November 2009 is annexed to the writ ("Utah Judgment"). By application dated 30 April 2010, the plaintiff has sought summary judgment, which is the subject of these reasons.
The plaintiff relies on affidavits by its Utah attorney Jonathon Parry sworn 29 April 2010 ("Parry Affidavit") and by its Perth lawyer Paul Mallon sworn 30 April 2010 ("Mallon Affidavit"). At the hearing…
- AGLC
- Mobi-Light Inc v KK Machinery Pty Ltd [2010] WADC 105
- Case
- [2010] WADC 105
- Decision Date
CaseChat Overview and Summary
The court considered the prerequisites for enforcing a foreign judgment under common law, which include the foreign court having jurisdiction, the judgment being final and conclusive, and the judgment being for a fixed amount. The court accepted that the Utah Court had jurisdiction and that the judgment was for a fixed amount. However, the court found that the judgment was not final and conclusive due to an ongoing appeal. Additionally, the court noted that there was evidence suggesting the judgment might have been obtained through fraudulent means, raising a factual dispute that needed to be resolved through trial. Consequently, the court held that the plaintiff could not rely on the foreign judgment to obtain summary judgment.
The court determined that the application for summary judgment should be dismissed due to unresolved factual disputes concerning the enforceability of the foreign judgment. The case would proceed to trial to address these issues. The court's reasoning hinged on the necessity to resolve factual disputes regarding the finality and legitimacy of the foreign judgment before it could be enforced in Australia.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
One potential area of disputed fact is that of Utah law. The content of foreign law is a question of fact to be proved by expert evidence, ordinarily by the party relying on it: Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 [115], [185], [249]; Regie National des Usines Renalt SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 [68]; Damberg v Damberg (2001) 52 NSWLR 492 at 505 ([119]; Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 2] [2009] WASC 301 [19]. In the present case, I am satisfied that both Mr Parry and Mr Ensor are experts in relation to Utah law. To the extent that there is a conflict between them, in a summary judgment application I must accept the evidence of Mr Ensor on behalf of the first defendant. As regards the pre‑conditions to the grant of summary judgment, Mr Mallon deposes in his affidavit his belief that the defendants have no defence to the plaintiff's action (par 10). Courts in Australia recognise and accept that foreign judgments can be sued upon at common law provided that they are satisfied that the judgment was regularly obtained by a court of competent jurisdiction: Benefit Strategies Group Inc v Prider (2005) 91 SASR 544 at 559; Grant & Ors v Spaanderman & Anor, unreported; SCt of WA; Library No 8932; 21 June 1991; Trainor Asia Ltd v Calverley [2007] WADC 124. The foreign judgment is treated as creating a debt which the plaintiff may enforce: Nouvion v Freeman (1889) 15 App Cas 1 at 8; Grant v Easton (1883) 13 QBD 302 at 303. Judgments from USA courts are not able to be enforced under the Foreign Judgments Act 1991 (Cth): see Foreign Judgments Regulations 1992 (Cth). The plaintiff must rely on the position at common law. At common law, a foreign judgment may be enforced if three conditions are met:(a)the foreign court had jurisdiction to make the judgment under its own law; (b)the judgment was final and conclusive; and(c)the judgment was for a fixed amount. Nouvion (supra) at 9 ‑ 10, 12, 17; Grant (supra) at 8 – 11; Trainor Asia (supra). The onus is on the party seeking to rely on the judgment to satisfy the court that these prerequisites are met: Grant at 8. The first defendant conceded that the Utah Court had jurisdiction to make the judgment under its own law and that the judgment was for a fixed amount. The first defendant asserted that:(a)the judgment was not final and conclusive; (b)the action is not competent in that it is not between the identical parties as in the Utah Court and specifically cannot be enforced against the first defendant severally, but only jointly; (c)there is some evidence that the judgment was obtained in circumstances where fraud is said to have been an issue;(d)if judgment was to be awarded, it should be reduced by the amounts already paid by the other parties against whom judgment was ordered. Each of these is dealt with in turn. There are three bases on which the first defendant asserts that the Utah Judgment is not final and conclusive. The first, set out in the defence, is that the Utah Judgment is the subject of an appeal. Mr Ensor confirms that the first defendant is appealing the Utah Judgment.