Oldham v Lloyd
[2017] NSWSC 87
•15 February 2017
Supreme Court
New South Wales
Medium Neutral Citation: Oldham v Lloyd [2017] NSWSC 87 Hearing dates: 15 February 2017 Date of orders: 15 February 2017 Decision date: 15 February 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. Defendant’s Notice of Motion dated 6 December 2016 dismissed.
2. Defendant to pay the Plaintiff’s costs of the Motion.Catchwords: JUDGMENTS – setting aside – registration of foreign judgment – application to set aside – foreign judgment said to have been obtained by fraud – absence of evidence of fraud – foreign judgment extant – intention to set foreign judgment aside – circumstances when registered foreign judgment can be set aside Legislation Cited: Foreign Judgments Act 1991 (Cth)
Legal Profession Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Doyle v Hall Chadwick [2007] NSWCA 159 Category: Procedural and other rulings Parties: Simon Gordon Oldham (Plaintiff)
Adam Damian Lloyd (Defendant)Representation: Counsel:
Solicitors:
G Leather (Plaintiff)
A Duthie (Defendant)(by leave)
Omniwealth Legal Pty Ltd (Plaintiff)
Duthie & Co (Defendant)
File Number(s): 2016/275895
Judgment
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The Defendant moves by Motion to set aside a judgment for the registration of a costs judgment given in the London High Court of Justice Senior Court Costs Office dated 16 May 2016. Apparently in the alternative, the Defendant seeks a stay of enforcement of that costs judgment.
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The evidence filed in support of the application is an affidavit of the Defendant which says only this, relevantly:
The grounds on which I seek these orders are as follows:
(a) The original United Kingdom judgment to which the costs judgment relates (the UK judgment) was obtained by wrongful means in that the plaintiff falsified a document which was used by the plaintiff's father to place improper pressure upon my then solicitors to withdraw from the matter leaving me without legal representation prior to the hearing of my claim against the plaintiff.
(b) I have instructed my solicitors in the United Kingdom to appeal against both the costs judgment and the judgment.”
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The original judgment was obtained in the UK in May 2012. It was registered in New South Wales, I am told in some time in 2013, and the first payment that was due under that judgment was ultimately made by the Defendant. The balance of what was required under the first judgment was apparently to be finalised by a costs assessment. That took place and resulted in the costs judgment in May 2016. That costs judgment was registered in New South Wales on 2 November 2016.
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The Defendant indicated that the power of the Court to set aside the judgment was found in the Foreign Judgments Act 1991 (Cth) and specifically section 7(2)(a)(vi). That provides:
Where a judgment debtor duly applies to have the registration of the judgment set aside, the court must set the registration of that judgment aside if it is satisfied that the judgment was obtained by fraud.
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The reference to “the judgment” being obtained by fraud must in the present case be a reference to the costs judgment and not to the original judgment. During the course of the hearing I inquired about what evidence was available to demonstrate fraud. A witness statement of Adam Lindsay Duthie was then tendered. Mr Duthie is a UK solicitor who is admitted in Australia as an Australian lawyer but does not have a practising certificate. I gave Mr Duthie leave to appear for the Defendant, although that was before I knew that he would be a witness both on the Motion and ultimately in the application which is said to be intended to set aside both of the judgments in England.
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The thrust of the evidence in that statement was that the present Plaintiff's father, Mr Gordon Oldham, sent the Chairman and managing partner of Withers, a firm that was then acting for Mr Lloyd and the firm where Mr Duthie worked, a series of emails which falsely claimed that Mr Duthie was personally directing Mr Lloyd in bringing the claim against Mr Oldham in England. A document was said to be falsely altered in support of those emails from Mr Gordon Oldham. The effect of that material was to cause Withers to cease acting for Mr Lloyd. And, as a result, it is said a summary judgment application was successful against Mr Lloyd's claim.
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The witness statement, in making those allegations, contains inadmissible conclusionary statements and assertions without any primary evidence of those conclusions and assertions. Nevertheless, I have had regard to those matters for the purposes of the present application.
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The material in that statement appears to be the high point of the claim that the original judgment in 2012 was obtained by fraud. The Defendant says that the fraud alleged means that the costs judgment was obtained by fraud because the costs judgment was dependent upon or derivative from or related to the first judgment.
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It does not seem to me that the material in support of the present Notice of Motion establishes that the original judgment was obtained by fraud, even if it was established that false documents produced the result that Withers ceased to act for Mr Lloyd. The fact that the solicitors ceased to act for the Defendant (who was the plaintiff in the UK proceedings) does not mean that a judgment subsequently obtained against the Defendant was obtained by fraud. That is so even if it is assumed the Defendant was not able to retain other solicitors, although there is no evidence that that was so.
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However, the evidence is a long way from establishing that the costs judgment was obtained by fraud which is the requirement in s 7(2)(a)(vi). It is intended, as I have noted, that the judgment in England will be set aside. It seems to me that until that occurs there is no basis for the setting aside of the registration of the costs judgment.
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In Doyle v Hall Chadwick [2007] NSWCA 159, Hodgson JA, with whom Mason P and Campbell JA agreed, discussed setting aside judgments in this Court in the context of a judgment that resulted from a costs assessment under section 208J of the Legal Profession Act 1987 (NSW), Hodgson JA said, commencing at para [49]:
[49] Accordingly, in my opinion the clear legislative intention is that an appeal to the Supreme Court should be able to proceed after a judgment has been obtained under s.208J. Further, in my opinion, there is no difficulty in giving effect to this legislative intention. It is well recognised that there are judgments that are not based on any decision of the Court of which they are taken to be judgments, but have some other basis; and such judgments may be set aside or varied if that basis is defeated or varied.
[50] One example is judgments entered by consent. …
[51] Another example is judgments arising from the registration of a certificate of judgment from another jurisdiction. If the judgment in that other jurisdiction is set aside or varied, then the judgment arising from registration can similarly be set aside or varied: Remilton v. City Mutual Life Assurance Society Limited (1907) 24 WN(NSW) 177, Bell v. Bell (1954) 73 WN(NSW) 7.
(emphasis added)
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The present applicant does not show that the costs judgment was obtained by fraud. This Court is therefore not required under section 7 of the Foreign Judgments Act to set it aside. If there was any other power to do so, some basis must be shown to justify the setting aside of the judgment. There is no suggestion that the registration of the costs judgment was itself obtained or entered irregularly, illegally or against good faith (UCPR 36.15). Its basis was the judgment which had been obtained in the High Court in England. No other basis is pointed to in the Uniform Civil Procedure Rules 2005 (NSW) to justify the setting aside of a judgment until the judgment in the original jurisdiction has been set aside, as Hodgson JA has discussed.
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Nor do I consider that there is any basis for staying the enforcement of the costs judgment on the present state of the evidence. That is because, as I have said, there is no evidence to suggest that the costs judgment in England was obtained by fraud and that it is likely to be set aside. The evidence simply does not reach that point.
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For those reasons, the Notice of Motion filed 6 December 2016 is dismissed.
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The Defendant should pay the Plaintiff's costs of the Notice of Motion.
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Decision last updated: 16 February 2017