Re Wilkinson, H.J. Ex Parte Nathan, P.A. v Wilkinson, H.J

[1991] FCA 905

Re: HENRY JOHN WILKINSON
Ex parte: PATRICIA ANN NATHAN
And: HENRY JOHN WILKINSON
No. O M1 of 1991
FED No. 905
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.(1)

CATCHWORDS

Bankruptcy - judgment in High Court of New Zealand - whether s.41(2A) of the Bankruptcy Act 1966 applies where judgment registered under Reciprocal Enforcement of Judgments Act 1959.

Bankruptcy Act 1966, s.41(2A)

Reciprocal Enforcement of Judgments Act 1959, s.5

HEARING

BRISBANE

#DATE 5:9:1991

Counsel for the applicant: Mr M. Rackemann

Solicitors for the applicant: Morris Fletcher and Cross

ORDER

A bankruptcy notice founded upon the applicant's registered judgment is required to conform with the provisions of ss.41(2A) and 41(2B) of the Bankruptcy Act 1966.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

This is an application made to the Court on behalf of Patricia Ann Nathan, who is a judgment creditor, seeking a declaration with respect to a bankruptcy notice. The circumstances are that on 29 October 1987, judgment was given in the High Court of New Zealand in a sum of NZ$38,373, together with certain interest and costs. An application was subsequently made to register the judgment under the Reciprocal Enforcement of Judgments Act 1959, and on 14 August 1990, an order was made in the Supreme Court of Queensland for registration of the judgment.

1. The evidence filed today on behalf of the applicant judgment creditor shows that, after the order was made, an entry (apparently misdated) was made in the Register of Judgments, which, amongst other things, recorded that the judgment was for the sum I have mentioned - that is $38,373 and certain interest and costs.

2. An application was made by the judgment debtor to set aside the registration, and that was dismissed. On 20 November 1990, an application was made for issue of a bankruptcy notice on the New Zealand judgment. With the application, which was made by the applicant judgment creditor, there were produced a certified copy of the New Zealand judgment, a certified copy of the order of the Supreme Court of Queensland registering the judgment, and other material.

3. The applicant, I gather from the material, made it clear to the Registrar that she wished to have a bankruptcy notice in a particular form, and that was one which followed, as it was thought, the registration of the judgment. The form which was desired did not require payment of the sum in New Zealand currency, but required payment of an equivalent sum in Australian currency.

4. The Registrar declined to issue a bankruptcy notice in that form, and the applicant, being uncertain of the correctness of that, has brought proceedings for a declaration. Mr Rackemann, for the applicant, has pointed out that the time for review of the Registrar's decision has passed, and that therefore a declaration is sought. It does not seem to me, in the circumstances, that there is anything wrong with applying for a declaration; the matter needs to be determined.

5. The applicant's submission has to do with the construction of s.41(2A) of the Bankruptcy Act 1966 which reads as follows:
   

"Where the judgment debt or sum ordered to be paid in accordance with the judgment or order is expressed by the judgment or order as an amount in the currency of a foreign country (in this subsection referred to as the 'amount of foreign currency'), the bankruptcy notice shall state that

payment is to be made in either -

(a) the amount of foreign currency; or

(b) a specified amount of Australian dollars, being an amount that is the equivalent in Australian dollars of the amount of foreign

currency on the second business day before the day on which

application was made for the issue of the bankruptcy notice".

1. The applicant suggests that the judgment in this case is not caught by s.41(2A) because of the requirement in the Reciprocal Enforcement of Judgments Act that the sum payable under the judgment registered be expressed in Australian currency.

2. What the State Act says in s.5 is that:
   

"A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the Supreme Court ... to have the

judgment registered in the Supreme Court".

Sub-section (3) says:

"Where the sum payable under a judgment which is to be registered is

expressed in a currency other than the currency of the Commonwealth of Australia, the judgment shall be registered as if it were a judgment for such sum in the currency of the Commonwealth as, on the basis of the

rate of exchange prevailing at the date of the judgment of the original Court, is equivalent to the sum so payable".

1. It appears from the evidence to which I have referred, which is contained in an affidavit of Miss Derrington, that the entry in the Register of Judgments in this case did not follow the Act. That is, the Act seems to say, as I read it, that the registration shall have a certain content. It does not say that on registration the judgment shall be deemed to have that content. However, the effect of that apparent error need not be discussed, and I will proceed as if it had not been made.

2. Counsel for the applicant has relied, in support of his contention that the bankruptcy notice should be issued in the form desired, on the decision of this Court in Re McGilvray; Ex parte Foreign Commerce Bank Inc (1986) 66 ALR 181. In that case the Court followed the English decision in In Re a Judgment Debtor (1939) Ch 601. Re McGilvray had to do with the issue of a bankruptcy notice registered, as this one was, under a registration law of a State, namely the State of South Australia.

3. The South Australian statute stated that a registered judgment shall be of the same force and effect as a judgment of the Supreme Court of South Australia, and the view which was adopted in Re McGilvray was that bankruptcy proceedings may be taken on the registered judgment in the same way as they may be taken on a judgment given by the Supreme Court in an action brought in that Court.

4. Section 41(2A) of the Bankruptcy Act makes it clear that a bankruptcy notice may be issued on a judgment expressed in the currency of a foreign country. It also prescribes, as I read it, a specific formula for translating the requirement of the foreign judgment into one which is to be made by the bankruptcy notice; that is, it says that if the judgment debt is, under the judgment, to be paid in a foreign currency, then the notice is to give the option of payment in that currency or in an equivalent amount of Australian dollars.

5. The contention which is advanced by counsel for the applicant is, in substance, that, in accordance with the line of reasoning which prevailed in Re McGilvray, the provisions of s.41(2A) do not take effect; that is so, as I understand the argument, because within the meaning of that section, the judgment or order in question is not expressed by the judgment as an amount in the currency of a foreign country. One can, it is said, arrive at that result by reading together the foreign judgment and what has been done in the Supreme Court of Queensland. If one reads those documents together in light of the Reciprocal Enforcement of Judgments Act, the result is arrived at (so the argument runs) that there is a judgment debt which is not expressed as an amount in the currency of a foreign country.

6. I have already referred to one difficulty in the way of the argument and that is that what was, in fact, registered was a judgment for $38,373 plus certain interest and costs, in accordance with the New Zealand judgment. But leaving that aside, and even assuming that had not occurred, it seems to me impossible to arrive at the conclusion that one does not have here a judgment debt or sum ordered to be paid in accordance with the judgment or order expressed by the judgment or order as an amount in the currency of a foreign country.

7. There is no doubt that the judgment which is sought to be enforced is the judgment of the New Zealand Court. It is true that Re McGilvray says that that judgment on registration is to be enforced as if it were a judgment of the Supreme Court, but Re McGilvray does not say, nor can I see any reputable path to the conclusion, that because of the State statute the judgment is to be read as if it were expressed in Australian currency.

8. It is necessary to pay close attention to the words which have been, as I think, deliberately used by the legislature. The language of s.41(2A) seems to me inconsistent with the idea that to determine the obligation under the judgment on which a bankruptcy notice is sought to be founded, one is entitled or obliged to look at laws operating upon the judgment such as the Reciprocal Enforcement of Judgments Act. All one needs to look at is what is expressed in the judgment.

9. Here, what is expressed in the judgment is an amount in the currency of a foreign country. Unless and until some document is brought into existence which may properly be called a judgment which does not express the amount in the currency of a foreign country, then s.41(2A) must apply, and the result is that the bankruptcy notice must, in my opinion, follow the requirements of s.41(2A).

10. The simple course to take, unless there is some other suggestion from counsel, is to dismiss the application for a declaration. I could, alternatively, make a declaration in the other sense if that is preferred.

11. The applicant seeks a declaration that the bankruptcy notice is not required to conform with the provisions of s.41(2A) and following provisions in view of the conclusion which I have reached, and at the suggestion of Mr Rackemann I will make a declaration to conform with my reasons. The declaration will be that a bankruptcy notice founded upon the applicant's registered judgment is required to conform with the provisions of ss.41(2A) and 41(2B) of the Bankruptcy Act 1966.