Ramanathan v Naidu

[2007] NSWSC 693

CITATION:	Ramanathan v Naidu [2007] NSWSC 693
HEARING DATE(S):	29/06/2007
JUDGMENT DATE :	4 July 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The Notice of Motion is dismissed. The defendant is to pay the costs of the Notice of Motion.
CATCHWORDS:	Setting aside registration of foreign judgment - extension of time for application - sufficient time to defend - fraud
LEGISLATION CITED:	Foreign Judgments Act 1991 (Cth) Supreme Court Rules 1970 (NSW)
PARTIES:	Theyvendran Ramanatham Radha Krishna Naidu
FILE NUMBER(S):	SC 15818/06
COUNSEL:	Mr S. B. Docker (Pl) Mr S. Prince (Def)
SOLICITORS:	Thomson Playford Lawyers (Pl) SBA Lawyers (Def)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	15818/06
LOWER COURT JUDICIAL OFFICER :	Deputy Registrar Haggett
LOWER COURT DATE OF DECISION:	3/1/2007

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

4 JULY 2007

15818/06 Theyvendran Ramanathan v Radha Krishna Naidu

JUDGMENT

1 HIS HONOUR: The plaintiff is a resident of Singapore. The defendant resides at Mosman.

2 The plaintiff brought proceedings against the defendant in Singapore (by Writ of Summons together with a Statement of Claim). His claim was for monies owing under a deed of release (the deed). An order for service out of Singapore was made. The Writ of Summons, the order and a Notice of Pre-Trial Conference was served on the defendant. The Writ of Summons required the entry of an appearance within twenty-one days. Service took place on or about 30 January 2006. The defendant did not cause an appearance to be entered within the twenty-one day period. On 24 February 2006, a default judgment was entered for the plaintiff.

3 The plaintiff has brought proceedings in this Court. He ultimately proceeded on an Amended Summons served on 5 February 2007. The plaintiff sought registration of the judgment pursuant to the Foreign Judgments Act 1991 (Cth) (the Act).

4 The proceedings came before Deputy Registrar Haggett on 31 January 2007. There was no appearance by or on behalf of the defendant. The Registrar made the following orders:-

“1. An order that the judgment entered in the High Court of the Republic of Singapore on 24 February 2006 that the defendant pay the plaintiff:
a) The sum of $A614,990.19;
b) the sum of A$28,435.87 interest up to the date of judgment; and
c) costs of S$4592.10,
be registered in this court under Part 2 of the Foreign Judgments Act 1991 (Cth).
2. An order that interest accrue at the rate of 6% per annum to the plaintiff from the date of the judgment to the date of satisfaction of the judgment debt, in accordance with Order 42, Rule 12 of the Singapore Rules of Court.
3. An order that the judgment may be enforced to the full extent of the terms that are to be registered.
4. An order that the Court grant interest from the date of the judgment of the Singapore Court to the date of registration of the judgment in this Court in the amount of A$29,418.37.
5. The defendant pay the costs of the summons as agreed or assessed.
6. The Defendant have 14 days from the date of service upon him of the notice of registration to apply to this court under s 7 of the Foreign Judgments Act 1991 (Cth).”

5 These orders were comprised within a Court document headed Judgment/Order. This document was served on the defendant on 5 February 2007. The defendant then had fourteen days to apply to the Court under s7 of the Foreign Judgments Act 1991 (Cth) to have the registration of the judgment set aside. No application was made within that time and no application was made prior to the expiry of that time for an extension of time.

6 However, on 26 February 2007, the defendant filed a Notice of Motion. It seeks the setting aside of what was done by the Registrar.

7 The application is supported by two affidavits sworn by the defendant. One of them concedes service of the Singaporean process on or about 30 January 2006. It contains this explanation for failure to enter an appearance in those proceedings:-

“I did not appear in response to the Writ of Summons because on 10 January 2006 I was involved in a major motor vehicle accident in Egypt involving the death of six of my colleagues. As a result of that accident, I sustained a severe fracture of the thoracic spine at the level of T11 and T12, which prevented me from travelling to Singapore to respond to the Writ of Summons.”

He was briefly cross-examined. His reluctance to give responsive answers to questions created a poor impression.

8 A hearing of the Notice of Motion took place on 29 June 2007. Both parties were represented by Counsel. The hearing occupied nearly three hours. It could be thought that the defendant was intent on frustrating the progress of the proceedings.

9 At the commencement of the hearing, the defendant unsuccessfully sought an adjournment. It was opposed and rejected for a number of reasons. During the course of the hearing, the defendant also sought to make, without notice, an abortive application for extension of time for the filling of the affidavit. It was opposed and for a number of reasons I refused to entertain it.

10 The application for the Court to entertain an extension application was abortive because the application for extension of time had to be made within the fourteen-day period allowed by the Court (see Part 59A, rule 8 of the Supreme Court Rules 1970 (NSW)).

11 The failure to make that application within the fourteen-day period doomed the Notice of Motion to failure. Whilst it is unnecessary to do so, I will briefly address the matters that were argued by the defendant.

12 Section 7 of the Act provides that the Court must set the registration of a judgment aside if it is satisfied of any of the matters set forth in (i)-(xi) thereof.

13 Initially, the defendant sought to make out the matters set forth in (iv), (v) and (vi). These provisions are as follows:-

“7 Setting aside a registered judgment
…

(2) Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:

(a) must set the registration of that judgment aside if it is satisfied:
….

(iv) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(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; or

(vi) that the judgment was obtained by fraud; or”
…

14 Reliance on (iv) was later abandoned. This followed the rejection of the adjournment application. In my view, the argument that the defendant had in mind running was misconceived. It appeared to be founded on alleged rule non-compliance concerning service and could only be maintained if the defendant had been successful in setting aside the Singaporean judgment. In any event, it would not have demonstrated “no jurisdiction” in the sense required by the Statute.

15 What was put in relation to (v) depended on what was said from the Bar table. It was not supported by the evidence from the defendant himself. What was said by him in his affidavits did not assert insufficient time to enable him to defend the proceedings and not appear. What was said was that because of injury he was unable to travel to Singapore. It was not said that he could not have made arrangements to cause the entry of an appearance or have representation in either Singapore or Sydney within the period between 30 January 2006 and 24 February 2006.

16 Leaving those matters aside, the arguments of his Counsel have not satisfied me that he did not have sufficient time to enable him to defend the proceedings.

17 In relation to (vi), two matters were raised. One concerned the time of the making of the first payment under the deed. The other concerned calculation of interest.

18 The deed was dated 17 March 2004. The operative words of the deed required the making of six payments (the first to be made by 31 January 2004).

19 The alleged fraud concerning this matter was said to have been committed by the pleading of those provisions of the deed in the Statement of Claim. The initial comment to be made is the problem of seeing how an accurate reproduction of provisions of the deed in a pleading could constitute a fraud.

20 Leaving that matter aside, the allegation of fraud was not supported by evidence from the defendant. Again, it relied on what was said from the Bar table.

21 What the explanation was for the date of the first payment preceding the date of execution of the deed remains a mystery. Whilst it was open to the defendant to adduce evidence on the matter, he chose not to do so. One explanation may be that the deed was executed subsequently to evidence an earlier agreement.

22 The other matter involves an allegation, also founded on the pleadings, of incorrect calculation of interest. If this allegation be correct, it involves little more than error in the amount claimed for interest. I am not satisfied that it can be regarded as fraud.

23 The Court was taken to a number of decisions concerning the meaning of “fraud”. None of them were decided on the question of the meaning to be attributed to “fraud” as it appears in the context of s7. The question was presented as being a matter on which different views were held. For the purpose of deciding this case, it is unnecessary to dwell on this matter.

24 It suffices to say that it seems to me that “fraud” in such a context contemplates actual fraud in the sense that it is usually understood. Generally, what is involved is the giving of false evidence that induces a Court to reach a wrong conclusion. The material relied on fell well short of meeting that test. It is one of those cases where improperly, allegations of fraud have been lightly made. I am not satisfied that what is relied on by the defendant could be regarded as “fraud” within the meaning of the Statute.

25 The Notice of Motion is dismissed. The defendant is to pay the costs of the Notice of Motion.

**********