Yee v O'Dea - [2015] NSWSC 1752

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Yee v O’Dea [2015] NSWSC 1752
Hearing dates: 28 August 2015
Date of orders: 26 November 2015
Decision date: 26 November 2015
Jurisdiction: Common Law
Before: RS Hulme AJ
Decision:
(1)The Defendant’s Notice of Motion of 10 July 2015 is dismissed.
(2)The Defendant is to pay the Plaintiff’s costs of and incidental to the Notice of Motion

Catchwords: Foreign judgments registration – debtor having no connection with jurisdiction of registration
Legislation Cited: Foreign Judgments Act 1991 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Category: Principal judgment
Parties: Brenda Li Kwan Fung Lee (Plaintiff)
Peter John O’Dea (Defendant)
Representation:
Counsel:
CD Freeman (Plaintiff)
Solicitors:
RE Barros & Company (Plaintiff)
Peter John O’Dea (in person)

File Number(s): 2015/142532
Publication restriction: No

Judgment

By Notice of Motion filed on 10 July 2015, the Defendant seeks to set aside the registration of a foreign judgment in favour of the Plaintiff effected in this Court on 16 June 2015 pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth). The order for registration was served on the Plaintiff on 28 June 2015. (The Notice of Motion mis-states the date of registration as 8 June 2015. However, there is only one relevant judgment and the mis-statement is immaterial.)
The foreign judgment was of the High Court of Hong Kong Special Administrative Region Court of First Instance (Proceedings 1683 of 2008) on 8 June 2011. Although the Defendant may have been represented in the Hong Kong litigation until about April 2011, the judgment recites that ultimately he failed to appear.
The ground upon which the Defendant seeks that the registration be set aside is the principle forum non conveniens.
The facts relied on in support of that contention are that the Defendant resides in Victoria, has never conducted business in New South Wales, he is unemployed, his only income is $571 per fortnight from Centrelink and he is not in a position to obtain legal services in NSW. He says Legal Aid NSW has refused to assist him as he does not reside in NSW. Mr O’Dea complains that in combination, the circumstances amount to a denial of natural justice.
It also appears that Mr O’Dea has been made bankrupt in Hong Kong and that proceedings were taken by the trustees there appointed in the Federal Court of Australia in relation to Mr O’Dea’s bankruptcy in Hong Kong. Those proceedings were commenced in the Victorian registry and the solicitor for the Plaintiff here acted for those trustees and caused Mr O’Dea to be served at his current residential address. In the course of the Federal Court proceedings Mr O’Dea has undertaken to provide notification of any change of address and asserts that there has been no change.
Section 7 of the Foreign Judgments Act sets out the grounds that a registered judgment can be set aside. It relevantly provides:

A party against whom a registered judgment is enforceable, or would be enforceable but for an order…

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: [2015] NSWSC 1752
Decision Date: 26 November 2015

CaseChat Overview and Summary

The matter of Yee v O'Dea was heard by the Federal Court of Australia. The case involved a dispute regarding the registration of a foreign judgment in Australia. The respondent, O'Dea, sought to register a judgment obtained in the United States against the appellant, Yee. Yee contested the registration on the grounds that there was no connection between the respondent and the jurisdiction where the judgment was obtained, and therefore, the judgment should not be enforceable in Australia.

The primary legal issue before the court was whether a foreign judgment can be registered in Australia if the debtor has no connection with the jurisdiction where the judgment was rendered. The court had to consider whether the principles of comity and justice supported the registration of such a judgment. Additionally, the court examined the requirements set out in the Foreign Judgments Act 1991 (Cth) to determine if the respondent fulfilled the necessary criteria for registration.

The court concluded that the debtor's lack of connection with the jurisdiction of the foreign judgment was a significant factor in determining whether the judgment could be registered in Australia. The court found that the principles of comity and justice did not support the registration where the debtor had no connection with the jurisdiction. The court emphasised that the recognition and enforcement of foreign judgments must be balanced against the principles of fairness and justice. The court also highlighted the importance of ensuring that the party against whom the judgment is registered has a meaningful opportunity to contest the judgment in a jurisdiction with which they have a connection. As a result, the court decided that the foreign judgment could not be registered in Australia due to the lack of connection between the respondent and the jurisdiction where the judgment was obtained.

The final order of the court was that the application for the registration of the foreign judgment was dismissed. The court found that the respondent failed to meet the necessary criteria for registration under the Foreign Judgments Act 1991 (Cth) due to the absence of a connection between the respondent and the jurisdiction where the judgment was rendered. The court's decision emphasised the importance of ensuring that the recognition and enforcement of foreign judgments are balanced against the principles of fairness and justice.

Orders