Seeto Kui (Holdings) Limited v Chow - [2016] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

Seeto Kui (Holdings) Limited v Chow [2016] QCA 112

PARTIES:

SEETO KUI (HOLDINGS) LIMITED
(appellant)
v
HSING LING SHAO CHOW
(respondent)

FILE NO/S:

Appeal No 7735 of 2015
SC No 4027 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2015] QSC 193

DELIVERED ON:

29 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2016

JUDGES:

Gotterson and Philip McMurdo JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed.

2.   The orders below are set aside.

3.   The application for leave to proceed is allowed.

4.   The respondent pay the appellant’s costs of the appeal, to be assessed on a standard basis.

5.   The respondent pay the appellant’s costs of the originating application filed 4 May 2012 and of the application for costs filed 19 February 2015, both to be assessed on a standard basis.

6.   The appellant pay the respondent’s costs of the application for leave to proceed, filed 12 March 2015, to be assessed on a standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – where appellant sought registration of foreign judgment in Australia – where respondent satisfied judgment debts before the application was heard – where the appellant sought its costs of the application – where the appellant required leave to apply for its costs, as more than two years had passed since a step had been taken in the proceeding – where primary judge declined to grant the appellant leave to proceed – whether the primary judge’s decision was affected by an error of law – whether the appellant should be granted leave to proceed – whether the appellant should be granted its costs of the application for registration and application for leave to proceed

Mace v Murray (1955) 92 CLR 370; [1955] HCA 2, applied
Tyler v Custom Credit Corporation Ltd[2000] QCA 178, applied

COUNSEL:

N Ferrett with B Le Plastrier for the appellant
M M Varitimos QC for the respondent

SOLICITORS:

Turner Freeman for the appellant
Birch & Co for the respondent

GOTTERSON JA: I agree with the orders proposed by Boddice J and with the reasons given by his Honour.
PHILIP McMURDO JA: I agree with Boddice J.
BODDICE J: On 9 July 2015, the primary judge dismissed the appellant’s application for a declaration that the appellant had taken a step in the proceeding and did not require leave to proceed pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) or, alternatively, for an order that the appellant be granted such leave. The primary judge also dismissed the appellant’s application for an order that the respondent pay the appellant’s costs of the proceeding.
In dismissing the applications, the primary judge found that the appellant had not taken a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 112
Decision Date: 29 April 2016

CaseChat Overview and Summary

In the case of Seeto Kui (Holdings) Limited v Chow, the appellant, Seeto Kui (Holdings) Limited, sought to register foreign judgments against the respondent in Australia. The dispute arose after the respondent satisfied the judgment debts before the application for registration was heard. Consequently, the appellant sought its costs for the application and the subsequent application for leave to proceed, as more than two years had passed since a step had been taken in the proceeding. The primary judge declined to grant the appellant leave to proceed, prompting the appellant to appeal the decision.

The central legal issues before the court were whether the primary judge erred in refusing the appellant leave to take a further step in the proceeding and whether the appellant should be granted its costs of the proceeding. The appellant argued that it qualified as a "judgment creditor" under the Foreign Judgments Act 1991, and thus was entitled to seek costs even after the debts had been paid. Additionally, the appellant claimed that the delay in proceeding with the costs application was adequately explained.

The court held that the primary judge's decision was indeed affected by an error of law. It found that the appellant was a "judgment creditor" as defined in the Act and was entitled to seek costs despite the satisfaction of the underlying debts. The court further determined that the appellant had provided a satisfactory explanation for the delay in proceeding with the costs application, thus warranting the grant of leave to proceed. Consequently, the appeal was allowed, and the orders below were set aside.

The final orders of the court were that the appeal was allowed, the orders below were set aside, the application for leave to proceed was granted, and the respondent was ordered to pay the appellant’s costs of the appeal and the originating application filed on 4 May 2012 and the application for costs filed on 19 February 2015, all to be assessed on a standard basis. Additionally, the appellant was ordered to pay the respondent’s costs of the application for leave to proceed, filed on 12 March 2015, to be assessed on a standard basis.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders below are set aside.

3. The application for leave to proceed is allowed.

4. The respondent pay the appellant’s costs of the appeal, to be assessed on a standard basis.

5. The respondent pay the appellant’s costs of the originating application filed 4 May 2012 and of the application for costs filed 19 February 2015, both to be assessed on a standard basis.

6. The appellant pay the respondent’s costs of the application for leave to proceed, filed 12 March 2015, to be assessed on a standard basis.

Background

Background to the litigation

The appellant appeals that decision. The appellant does not challenge the finding that the appellant had not taken a step in the proceeding and therefore required leave to proceed. At issue is whether the primary judge erred in refusing the appellant leave to take a further step in the proceeding. It is accepted that if the appellant succeeds on the appeal, this Court should determine the appellant’s application for the costs of the proceeding.Background The appellant was incorporated and registered as a company in Papua New Guinea on 14 August 1972. In March 2005, an application was successfully made to amalgamate the appellant and four other companies registered in Papua New Guinea. Relevantly, two of those companies were Mainland Plumbing Supplies (N.G.) Ltd (“Mainland”), which had been incorporated and registered in Papua New Guinea on 2 March 1970, and Ardrossan Investments Limited (“Ardrossan”), which had been incorporated and registered in Papua New Guinea on 30 April 1984. Pursuant to that application, the appellant became the amalgamated company. A certificate of amalgamation to that effect was given on 15 March 2005. It certified that the amalgamation took effect on 31 March 2005. After amalgamation, the register of companies recorded both Mainland and Ardrossan as amalgamated. However, neither Mainland nor Ardrossan was removed from the register. By originating application filed 4 May 2012, the appellant sought the registration of default judgments which had been entered against the respondent in Papua New Guinea. The registration, sought pursuant to the Foreign Judgments Act 1991 (“the Act”), related to four separate default judgments entered against the respondent in proceedings in Papua New Guinea on 17 July 2009. The judgment debts were all incurred after the date the amalgamation took effect, as a consequence of the supply of goods to the respondent. In the case of two of the judgment debts, those goods were supplied under the name of Ardrossan. The other goods were supplied in the name of Mainland and in the name of the appellant. Two of the default judgments related to claims commenced in the name of Ardrossan, trading as Bowmans-Lae. The other default judgments related to claims commenced in the name of Mainland and in the appellant’s name. In each case the statement of claim pleaded that the named plaintiff was a corporate entity capable of suing in that name. Each of the judgments entered by default was entered in the name of the specified plaintiff.The proceeding The originating application, filed 4 May 2012, was adjourned on six occasions between 6 June 2012 and 2 November 2012 and again on 18 January 2013. Each adjournment arose as a consequence of the respondent wishing to make application to the National Court in Papua New Guinea to set aside each of the default judgments. Those applications to set aside the default judgments were ultimately unsuccessful. Shortly thereafter, on 23 May 2013, the respondent paid each of the amounts the subject of the default judgments.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 3 of the Act defines judgment creditor as:“judgment creditor, in relation to a judgment, means the person in whose favour the judgment was given, (whether or not a sum of money is payable under the judgment) and includes a person in whom the rights under the judgment have become vested by succession, assignment or otherwise.” The registration of companies in Papua New Guinea is controlled by the provisions of the Companies Act 1997 (PNG) (“the 1997 Act”). Relevantly, it provides that a company is a legal entity in its own right, which continues in existence until it is removed from the register.[1][1]Companies Act 1997 (PNG), s 16. Part XIV of the 1997 Act contains a procedure for the amalgamation of companies. By that procedure, two or more companies may amalgamate “and continue as one company”.[2] Section 238 of the 1997 Act provides:[2]Companies Act 1997 (PNG), s 232.“On the date shown in a certificate of amalgamation –(a)the amalgamation is effective; and(b)where it is the same as a name of one of the amalgamating companies, the amalgamated company has the name specified in the amalgamation proposal; and(c)the Registrar shall remove the amalgamating companies, other than the amalgamated company, from the register, and otherwise give effect to the amalgamation; and(d)the amalgamated company succeeds to all the property, rights, powers, and privileges of each of the amalgamating companies; and(e)the amalgamated company succeeds to all the liabilities and obligations of each of the amalgamating companies; and(f)proceedings pending by, or against, an amalgamating company may be continued by, or against, the amalgamated company; and(g)a conviction, ruling, order or judgment in favour of, or against, an amalgamating company may be enforced by, or against, the amalgamated company; and(h)any provisions of the amalgamation proposal that provide for the conversion of shares or rights of shareholders in the amalgamating companies have effect according to their tenor.”Appellant’s submissions The appellant submits the primary judge erred in concluding that the appellant was not a “judgment creditor” in respect of the default judgments entered in the name of Ardrossan and Mainland. The definition of judgment creditor in s 3 of the Act included the appellant. The fact that the services were supplied after amalgamation and that judgment was obtained after amalgamation did not prevent enforcement or recovery of the judgment amount in the name of the amalgamated company. The appellant submits the primary judge also erred in finding that the appellant could not register the judgment in its name after the outstanding debts had been paid in May 2013. The appellant was entitled to seek the costs of that application, notwithstanding satisfaction of any underlying debt. Finally, the appellant submits the primary judge erred in finding there was lengthy delay which was, in the most part, unexplained. Upon the outstanding debts being paid by the respondent, the appellant had advised the respondent it intended to seek the costs of the originating application. The appellant had thereafter taken significant steps to assess those costs. The affidavit material before the primary judge explained the delay in completion of those steps and provided a satisfactory explanation for why the costs application did not proceed prior to February 2015.Respondent’s submissions

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Seeto Kui (Holdings) Limited v Chow [2016] QCA 112
PARTIES:	SEETO KUI (HOLDINGS) LIMITED (appellant) v HSING LING SHAO CHOW (respondent)
FILE NO/S:	Appeal No 7735 of 2015 SC No 4027 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2015] QSC 193
DELIVERED ON:	29 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	9 March 2016
JUDGES:	Gotterson and Philip McMurdo JJA and Boddice J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal is allowed. 2. The orders below are set aside. 3. The application for leave to proceed is allowed. 4. The respondent pay the appellant’s costs of the appeal, to be assessed on a standard basis. 5. The respondent pay the appellant’s costs of the originating application filed 4 May 2012 and of the application for costs filed 19 February 2015, both to be assessed on a standard basis. 6. The appellant pay the respondent’s costs of the application for leave to proceed, filed 12 March 2015, to be assessed on a standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – where appellant sought registration of foreign judgment in Australia – where respondent satisfied judgment debts before the application was heard – where the appellant sought its costs of the application – where the appellant required leave to apply for its costs, as more than two years had passed since a step had been taken in the proceeding – where primary judge declined to grant the appellant leave to proceed – whether the primary judge’s decision was affected by an error of law – whether the appellant should be granted leave to proceed – whether the appellant should be granted its costs of the application for registration and application for leave to proceed Mace v Murray (1955) 92 CLR 370; [1955] HCA 2, applied Tyler v Custom Credit Corporation Ltd[2000] QCA 178, applied
COUNSEL:	N Ferrett with B Le Plastrier for the appellant M M Varitimos QC for the respondent
SOLICITORS:	Turner Freeman for the appellant Birch & Co for the respondent