Resorts World At Sentosa Pte Ltd v Kok
[2016] WASC 96
•30 MARCH 2016
RESORTS WORLD AT SENTOSA PTE LTD -v- KOK [2016] WASC 96
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 96 | |
| 30/03/2016 | |||
| Case No: | FRJ:1/2015 | 18 MARCH 2016 | |
| Coram: | MASTER SANDERSON | 18/03/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | RESORTS WORLD AT SENTOSA PTE LTD LIM SOO KOK |
Catchwords: | Registration of foreign judgment Application to set aside registration on grounds enforcement of judgment contrary to public policy Turns on own facts |
Legislation: | Casino (Burswood Island) Agreement Act 1985 (WA) Foreign Judgments Act 1991 (Cth) Gaming and Betting (Contracts and Securities) Act 1985 (WA) Gaming and Wagering Commission Act 1987 (WA) |
Case References: | Bouton v Labiche (1994) 33 NSWLR 225 Jenton Overseas Investment Pte Ltd v Townsing (2008) 21 VR 241 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
The judgment of the High Court of the Republic of Singapore obtained in S 331/2014 and dated 8 December 2014
- Plaintiff
AND
LIM SOO KOK
Defendant
Catchwords:
Registration of foreign judgment - Application to set aside registration on grounds enforcement of judgment contrary to public policy - Turns on own facts
Legislation:
Casino (Burswood Island) Agreement Act 1985 (WA)
Foreign Judgments Act 1991 (Cth)
Gaming and Betting (Contracts and Securities) Act 1985 (WA)
Gaming and Wagering Commission Act 1987 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : Mr G M Slattery
Defendant : Mr A P Hershowitz
Solicitors:
Plaintiff : Squire Patton Boggs
Defendant : Robertson Hayles Lawyers
Case(s) referred to in judgment(s):
Bouton v Labiche (1994) 33 NSWLR 225
Jenton Overseas Investment Pte Ltd v Townsing (2008) 21 VR 241
1 MASTER SANDERSON: On 12 March 2015 I made the following orders:
1. Pursuant to Order 44A of the Rules of the Supreme Court 1971, the judgment dated 8 December 2014 of the High Court of the Republic of Singapore by which it was adjudged that the above named defendant do pay the above named plaintiff:
(a) the sum of S$572,363.00;
(b) interest in the sum of S$58,525.37; and
(c) costs and disbursements of S$8,399.65,
which together equals S$639,288.02 be registered as a judgment of this Court in the amount of AUD$601,825.74.
2 The defendant be at liberty to apply to set aside registration of the judgment within 7 days after service on him of notice of registration if he has grounds for so doing and that execution upon the judgment shall not issue until after the expiration of that period or any extension of that period granted by the Court; or if an application be made to set aside the registration, until the application has been disposed of.
3. The costs of the application and of registration of the judgment be taxed and added to the judgment as registered.
2 By chamber summons filed 2 April 2015 the defendant sought to have the registered judgment set aside. After hearing argument I dismissed the defendant's application. I indicated I would publish reasons for my decision. These are those reasons.
3 The facts are not in dispute. The defendant attended at the Resorts World at Sentosa Casino in Singapore (the Casino) on multiple occasions between November 2012 and March 2013. On 18 November 2012 the defendant attended the Casino and requested a credit facility from the plaintiff for the purposes of gaming in the Casino. The defendant executed and submitted a credit or cheque cashing facility request form for that purpose and a Singapore Dollars (SGD) $300,000 credit facility was subsequently approved (the Credit Facility Agreement).
4 On 9 December 2012 the defendant requested, using a credit facility revision request form, and was granted a further basic credit limit of SGD$300,000. On 10 January 2013 the defendant executed and submitted a further credit facility revision request form requesting that his credit limit be increased by a further SGD$300,000 to a total of SGD$600,000. This was granted by the plaintiff.
5 In March 2013 the defendant executed two further credit facility revision request forms. The first on 9 March 2013 requested that his credit limit be increased from SGD$300,000 by a further SGD$300,000 to a total of SGD$600,000. On 14 March 2013 he requested a further increase of SGD$100,000. That made a total of SGD$700,000. These requests were approved by the plaintiff.
6 Under the terms of the Credit Facility Agreement the defendant was to repay the facility within seven days of drawing down on it. As at 14 March 2013 the defendant had drawn down the full amount of the credit facility. He failed to repay the facility draw down when due. By March 2013 the sum of SGD$622,363 remained due and owing by the defendant to the plaintiff. That was after taking into account the defendant's commission earned playing at the Casino and a partial payment of SGD$50,000.
7 After some negotiations between the plaintiff and the defendant the parties entered into a settlement agreement dated 21 August 2014. That agreement involved the defendant paying SGD$622,363 in monthly SGD$50,000 instalments. The defendant made one payment which was received by the plaintiff on 29 August 2014. Thereafter the defendant reneged on the agreement and no further instalments were paid.
8 The plaintiff commenced proceedings against the defendant in the High Court of Singapore and default judgment was entered against the defendant on 8 December 2014. The judgment was for a fixed sum of money namely SGD$572,363 plus pre-judgment interest of SGD$58,525.37 and costs of SGD$8,399.65. On 16 April 2015 the defendant applied to set aside the default judgment. On 31 July 2015 the application to set aside the default judgment was dismissed. On 6 August 2015 the defendant filed an appeal against that decision. The appeal was heard on 22 September 2015 and was dismissed with costs. That fully exhausted the options available to the defendant in Singapore. The defendant applied in this court to set aside the registration of the judgment pursuant to s 7(1) of the Foreign Judgments Act 1991 (Cth) (the Act). The sole ground upon which the defendant sought to have the judgment set aside was that it was contrary to public policy.
9 It is convenient to begin with the legislative framework and the relevant authorities. Part 2 of the Actestablishes a regime for the registration and enforcement of judgments of foreign courts. For the purposes of that regime a 'judgment' includes a final or interlocutory order made by a court in a civil proceeding. Section 7(2)(a) of the Act provides for circumstances in which a court must set aside registration of the judgment if an application is made by the judgment debtor. Section 7(2)(a)(xi) of the Act provides that the court must set aside the judgment if 'the enforcement of the judgment ... would be contrary to public policy'. There is no guidance in the Act as to the scope of the public policy ground and there is little authority on the question.
10 What authority there is in Australia suggests that the public policy ground for refusal of enforcement should be narrowly confined. The fact that Australian law would have produced a different result is evidence that Australian law has a different 'policy' from the relevant foreign law. But that is not sufficient. Academic opinion is of the view that the offence against the Australian public policy should be profound before refusal to enforce is warranted. Anything less comes close to a review of the merits of the foreign decision: see Davies M, Bell A & Le Gay Brereton P, Nygh's Conflict of Laws in Australia (LexisNexis Butterworths, 9th ed, 2014) [40.79].
11 In Bouton v Labiche (1994) 33 NSWLR 225 the New South Wales Court of Appeal discussed the concepts of 'substantial injustice' and 'contrary and natural justice'. Kirby P said:
The interests of comity are not served if the courts of the common law are too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders which are, and remain, valid by the law of the domicile: ... .
Nevertheless, the courts of the common law ... have reserved to themselves the right to refuse to recognise decrees and orders of foreign courts and tribunals ... where:
(a) the order impugned offends against local ideas of substantial justice: ... ; or
(b) the decree or order has been obtained in the foreign court or tribunal contrary to the requirements of procedural fairness or natural justice: ... (235).
12 In Jenton Overseas Investment Pte Ltd v Townsing (2008) 21 VR 241 Whelan J pointed out that the interests of comity require Australian courts to be slow to invoke public policy as a ground for refusing recognition or enforcement of a foreign judgment (246). His Honour also provided a short history of some of the authorities.
13 In Western Australia gaming and in particular gaming at Casinos is governed largely by the Gaming and Betting (Contracts and Securities) Act 1985 (WA) (the Gaming Act) and the Gaming and Wagering Commission Act 1987 (WA) (the GWC Act). By s 6 of the Gaming Act if a betting transaction is a lawful one (that is 'lawful gaming' under the Gaming Act) a lender is given a right to recover money lent. Lawful gaming under the Gaming Act includes gaming conduct under and in accordance with the authorisation conferred by an Act specified in the schedule. Relevantly there are two Acts - the Casino (Burswood Island) Agreement Act 1985 (WA) and the GWC Act.
14 Section 63 of the GWC Act expressly prohibits credit gaming and provides that no person is to be given credit for permitted gaming. A contravention of s 63 of the GWC Act may constitute grounds for cancellation or suspension of the Casino licence, the imposition of a pecuniary penalty or the issue of a letter of censure. Although it is not easy to reconcile the Gaming Act and the GWC Act it was the defendant's position the provision of credit for gaming in Western Australia was prohibited. In making that submission counsel referred to the Second Reading Speech given by the Minister when proposing the legislation. I need not detail what was said by the Minister in that debate. It is sufficient for present purposes if I say it was accepted by the plaintiff that the provision of credit for gambling is prohibited.
15 But it does not seem to me the fact there is such a prohibition in this jurisdiction in any way undermines the judgment obtained in Singapore. The legislature in Western Australia has made a determination and enacted legislation which reflects its approach to gambling and the social problems to which it can give rise. That is a perfectly valid exercise of legislative power. But it hardly embodies a universal principle. A system which does allow the provision of credit for gambling is not so inherently evil as to render it contrary to public policy. Many ordinary citizens of Western Australia and Singapore may regard the provision of credit for gambling as morally and ethically wrong. But that is not the point. It cannot possibly be said Singapore is not entitled to make its own decision on that question. Having made that decision, and the defendant having availed himself of the facility, public policy in Australia does not dictate that registration of this judgment should be set aside.
16 For these reasons I dismissed the application. I indicated I would hear the parties as to costs.
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