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

1. 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.)

2. 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.

3. The ground upon which the Defendant seeks that the registration be set aside is the principle forum non conveniens.

4. 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.

5. 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.

6. Section 7 of the Foreign Judgments Act sets out the grounds that a registered judgment can be set aside. It relevantly provides:

1. A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992 , to have the registration of the judgment set aside.

2. Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:

1. must set the registration of that judgment aside if it is satisfied:

(i)  that the judgment is not, or has ceased to be, a judgment to which this Part applies; or

(ii)  that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or

(iii)  that the judgment was registered in contravention of this Act; or

(iv)  that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

(v)  that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or

(vi)  that the judgment was obtained by fraud; or

(vii)  that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or

(viii)  that the rights under the judgment are not vested in the person by whom the application for registration was made; or

(ix)  that the judgment has been discharged; or

(x)  that the judgment has been wholly satisfied; or

(xi)  that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy; or

(b)   may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had before the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.

7. The Defendant has put forward no evidence establishing any of the matters listed in s 7 of the Act. Indeed, while in the absence of legal assistance this cannot be taken too far, there is nothing to suggest that with legal assistance such evidence would have been forthcoming. However, attention was directed to Rule 53.3(1)(e) of the Uniform Civil Procedure Rules 2005 (NSW) which, so far as is presently relevant, provides:-

1. The evidence in support of an application for registration of a judgment must include the following:

2. (e) evidence showing that the Supreme Court is the appropriate court under section 6 (1) of the Foreign Judgments Act1991 of the Commonwealth.

8. It was submitted that the Defendant’s lack of connection with New South Wales means that this Court is not “the appropriate court” within that rule.

9. Section 6 of the Foreign Judgments Act, so far as is presently relevant, provides:

1. A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:

1. the date of the judgment; or

2. where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;

to have the judgment registered in the court.

2. For the purposes of subsection (1), the appropriate court is:

1. if the judgment is a money judgment and was given in proceedings in which a matter for determination arises under the Commerce Act 1986 of New Zealand (other than proceedings in which a matter for determination arises under section 36A, 98H or 99A of that Act) - the Federal Court of Australia or the Supreme Court of a State or Territory; or

2. if the judgment is not a money judgment and was given in such proceedings--the Federal Court of Australia; or

3. in any other case - the Supreme Court of a State or Territory.

10. There is no express requirement in s 6 or any other provision of the Foreign Judgments Act requiring that the appropriate court be one in the state where the relevant debtor resides and, although of course, such residence or other appropriate connection is normally required to confer jurisdiction on a court, the nature of proceedings under the Foreign Judgments Act, a Commonwealth statute, make it impossible to infer that such connection is required. Insofar as “appropriate” is intended to have some operation in the context of s 6(2), it operates to distinguish between the Supreme (or Federal) Courts and the District and Magistrates’ courts.

11. In the result, the application to set aside the registration of the Plaintiff’s foreign judgment fails. The appropriate orders are:

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.

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Amendments

26 November 2015 - (b)

Decision last updated: 26 November 2015