Vetreria Etrusca SRL v Elitepak Pty Limited

[2008] NSWSC 496

CITATION:	Vetreria Etrusca SRL v Elitepak Pty Limited [2008] NSWSC 496
HEARING DATE(S):	13 May 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
EX TEMPORE JUDGMENT DATE:	13 May 2008
DECISION:	Notice of Motion dismissed with costs.
CATCHWORDS:	Foreign judgment by defendant - whether should be registered - not a judgment of this Court - cannot be set aside.
LEGISLATION CITED:	Civil Procedure Act 2005 s86 Foreign Judgments Act 1991 s7 Uniform Civil Procedure Rules 2005 order 36.15
PARTIES:	Vetreria Etrusca SRL (Plaintiff) Elitepak Pty Limited ACN 103 927 466 (Defendant)
FILE NUMBER(S):	SC 2007/14112
COUNSEL:	Ms R Francois - Plaintiff/Respondent Mr A P Coleman - Defendant/Applicant
SOLICITORS:	Cornwall Stodart - Plaintiff/Respondent Turnbull Hill Lawyers - Defendant/Applicant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

Tuesday 13 May 2008

14112/07 VETRERIA ETRUSCA SRL v ELITEPAK PTY LIMITED (ACN 103 927 466)

JUDGMENT

1 HIS HONOUR: The defendant, Elitepak Pty Ltd, purchased bottles which were made in Italy and imported into this country. The plaintiff, Vetreria Etrusca SRL, claimed that it supplied those bottles to Elitepak and was entitled to payment of something over $19,000 for them.

2 Vetreria sued Elitepak in the Tribunale of the Court of Florence and obtained a judgment on 23 September 2006. A certified copy of the judgment was provided to Elitepak by the Italian Consul General in Sydney on about 20 November 2006. The document comprised the judgment in Italian signed by the Clerk of the Court and a Judge, together with an interpretation in English duly certified. That interpretation describes the document as a "petition for writ of injunction", not as a judgment. The document states that the Chairman of the Board of Directors of Vetreria claimed that Vetreria had supplied goods as specified in an invoice to Elitepak but that those goods had not been paid for within the agreed time frame of 60 days. It then goes on to state that the Italian Courts had jurisdiction to determine the matter, although it dealt with a contract involving a non-Italian party. Some detail of the reasons justifying the assertion of the jurisdiction are set out.

3 The document then states:

“ HE APPEALS

To the Court of Florence, Branch Court of Empoli, so that, after reading this petition and considering arts. 633 and subsequent cpc, it may order Elitepak PTY ltd, in the person of its legal representative, PO BOX 445, 2327 Kurri Kurri NSW, Australia, to pay within 60 days from the notification of this deed to Vetreria Etrusca srl, the amount of €10,883.35, plus interests on arrears ex art. 5 of Legislative Decree no. 231 of 9.10.2002 from 8.5.2005 to the balance, and the expenses as per attached fees.
According to art. 9/5 of Law no. 488 of 23.12.1999 it is hereby stated the value of this dispute amounts to €10,883.35.”

4 It will be seen that, on the face of it, this is an order requiring Elitepak to pay the specified sum within 60 days "from the notification of this deed". Although the English is possibly capable of ambiguity, in my view it is clear enough that the reference to Vetreria is as the ordered recipient of the funds and the notification referred to is the notification to Elitepak.

5 If the matter is susceptible of doubt, that doubt is clarified by the concluding paragraphs of the document which are as follows:

“Elitepak PTY ltd, in the person of its legal representative, PO Box 445, 2327 Kurri Kurri NSW, Australia, to pay within 60 days from the notification of this deed to Vetreria Etrusca srl € 10,883.35, plus interests on arrears ex art. 5 of the legislative decree no. 231 of 9.10.2002 from 8.5.2005 to the balance, and the expenses of this writ that it settles in € 852.00, of which € 93.00 for charges, € 440.00 for functions, € 234.00 for fees and € 85.00 for the repayment of general expenses at the rate of 12.50%, besides functions and expenses after the issue of this deed and VAT and cap, as per law.
It warns the debtor that within 50 days from the notification of this deed it may raise an objection according to the law, and that, failing that, this writ will be declared as finally enforceable and a levy will be carried out.”

6 It seems to me that the only reasonable interpretation of the "petition" is that the order of the Italian Court is self-executing so that in the absence of any "objection according to law" made within the 50 day period specified, it would take effect and although it is not necessary for me to determine the matter, I think it would in that event take effect from the date of issue, namely 23 September 2006. The writ’s final enforcement is expressly stated as occurring in default of the making of an objection by “the debtor”, which can only be a reference to Elitepak.

7 Mr Kevin Griffith, the director of Elitepak who is responsible for the administration of the relevant contract, says that he, his fellow directors and the solicitor who they consulted interpreted the petition as meaning that the 50 days ran from 23 September 2006 and that, as they were notified well after the expiration of that period, there was nothing further that they could do because the time for making any objection had passed. I unhesitatingly accept that Mr Griffith is truthfully stating both his understanding and the advice that he got from his solicitor but, in my view, this interpretation is simply untenable.

8 The time period runs from "the notification of this deed". Notification is not a word susceptible of ambiguity. It means and can only reasonably mean when the "deed" (I think document) has been brought to the attention of the relevant party. Since it is specifically addressed to "the debtor" as a warning, it must be that party to whom the relevant notification is made. Any other interpretation requires both disregarding the meaning of "notification" and supposing a bizarre mode of legal procedure.

9 In my view, the petition is unmistakable in its purport, namely in the absence of an objection made by the debtor within 50 days of service on it, the order becomes self-executing. It is the equivalent of a default judgment though without the necessity, it appears, of the moving party being required to file some additional document to obtain a final judgment. No doubt, to obtain execution of the order there would need to be some evidence both of service and the failure to object but there is no evidence before me of the precise procedure and I do not need to discuss this aspect.

10 For present purposes, Elitepak admits that it was served on about 23 November 2006 and agrees that it made no objection. The preconditions for the effectuation of the order are therefore satisfied.

11 On 26 November 2007, the judgment of the Florentine Court was registered in this Court pursuant to the Foreign Judgments Act 1991. Elitepak has by notice of motion sought to have that registration set aside. For present purposes, it is conceded I think that Elitepak has a bona fide defence although, of course, Vetreria submits that on any trial its claim to the invoiced moneys would be vindicated. It is perhaps worth mentioning that it appears that Elitepak's view is that it did not contract with Vetreria but with another intermediate company which was an Australian registered corporation. It is also claimed that the goods supplied were not of merchantable quality. As I have said, Vetreria disputes both these allegations.

12 In the circumstances, I think it probable that, had the proceedings commenced in this Court and default judgment been obtained by Vetreria, subject I should think to requiring the amount claimed and costs to be paid into court, Elitepak would have obtained an order setting aside the default judgment and been permitted to defend. Such a decision, of course, is a discretionary one, depending on the whole of the circumstances, and I merely state this probability in a tentative way since there may be matters militating against such a course, were it to be actually litigated, of which I am presently unaware.

13 Mr Coleman of counsel for Elitepak, who has said everything that could fairly be said for his client and has conducted the matter with commendable candour, has submitted that the effect of registration is to bring the foreign judgment into this Court as though it were a judgment of the Court and therefore enliven the Court's jurisdiction to set it aside as though it were a default judgment made in this Court.

14 The jurisdiction to set aside a registered judgment is set out in s 7 of the Foreign Judgments Act 1991. It is sufficient to say that nothing in s 7, as indeed is conceded by Mr Coleman, would permit me to set aside the judgment, in the event (as I have already found) that due service was indeed given (vide s 7(2)(v)).

15 Moving beyond the Foreign Judgments Act, Mr Coleman also relied on s 86 of the Civil Procedure Act 2005 which gives this Court a general power amongst other things, in respect of orders relating to “any proceedings” to make them on terms which the Court thinks fit and he pointed to the general power to set aside a judgment under Order 36.15 of the Uniform Civil Procedure Rules 2005. However, that power depends upon a finding that the primary judgment "was given or entered or the order was made, irregularly, illegally or against good faith". None of the preconditions for the exercise of this general power were established or, indeed, alleged.

16 Rule 36.16 empowers a court to set aside or vary a judgment if notice of motion for that purpose is filed before entry of the judgment or order and also gives a power to set aside or vary a default judgment. Of course, that is a reference to a judgment of this Court and cannot apply, I think, to a judgment of the Italian Court.

17 I should mention that, initially, Mr Coleman indicated that he wanted to submit that the Florentine Court had no jurisdiction and thus obtain an order setting aside the registered judgment under s 7(2)(iv) of the Foreign Judgments Act. However, he candidly conceded that, on reflection, he was not in a position to establish that the Florentine Court had no jurisdiction although he may well have been able to establish, he contended, that had the question of choice of law been agitated this Court would have been, or the courts of New South Wales would have provided a more appropriate tribunal for the determination of the dispute between Elitepak and Vetreria.

18 In the result, therefore, this application comes down to an interpretation of the petition. As I have said, in the circumstances that petition (properly read) did give adequate notice to Elitepak to defend the claim, though this must have happened in Florence.

19 It follows that the notice of motion must be dismissed with costs.

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