Abe v Azim HC Auckland CIV 2010-404-3741
[2011] NZHC 629
•4 April 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-3741
IN THE MATTER OF The Reciprocal Enforcement of Judgments
Act 1934
AND IN THE MATTER OF a judgment of the High Court of Fiji
BETWEEN TSUGIO ABE AND EN-TOUT-CAS (FIJI) LIMITED
Plaintiff/Respondent
ANDMOHAMMED AZIM Defendant/Applicant
Hearing: 1 April 2011
Counsel: PJ Davey for plaintiff/respondent
MT Omar for defendant/applicant
Judgment: 4 April 2011 at 4:30 PM
JUDGMENT OF FAIRE J
Solicitors: Rosebank Law, PO Box 19 259, Auckland
Kiwi Lawyers, PO Box 22 034, Otahuhu 1640
TSUGIO ABE AND EN-TOUT-CAS (FIJI) LTD V AZIM HC AK CIV 2010-404-3741 4 April 2011
The application
[1] The defendant applies for an order pursuant to the Reciprocal Enforcement of Judgments Act 1934, s 6 setting aside a judgment registered in the High Court of New Zealand by order of Priestley J on 28 June 2010 pursuant to s 4.
The judgment
[2] The judgment which was registered is a judgment of the High Court of Fiji dated 22 January 2010 whereby it was adjudged that the defendant pay the plaintiffs the sum of F$112,500 and ¥16,285,000 and 6 per cent interest for the period from the issue of the writ on 31 May 2006 to the date of judgment. The affidavit in support gave the equivalent amount of the judgment calculated in New Zealand currency as $391,293.14 including interest.
The grounds in support of the application
[3] The defendant advances the following grounds in support of his application:
(a) Enforcement of the judgment would be contrary to public policy because the legal system in Fiji is an unlawful legal system;
(b)Registration and enforcement of the judgment would be a breach of natural justice;
(c) The defendant wishes to appeal once the rule of law is restored in Fiji; and
(d) The application did not contain the information required by the
High Court Rules, Part 23 before registration can be effected.
[4] The ground which I have recorded in [3](d) was abandoned by Mr Omar when he viewed a copy of the affidavit in support of the plaintiff/judgment creditor’s application for registration. It was self-evident from that affidavit that there had been compliance with the High Court Rules, Part 23.
Inquiries made at the direction of Priestley J at the time the application for registration was considered by him
[5] Applications for registration of foreign judgments pursuant to the Reciprocal Enforcement of Judgments Act 1934 are made pursuant to the High Court Rules, Part 23. The applications are made on a without notice basis in reliance on r 23.4. The applications must be supported by one or more affidavits. The rules set out what must be covered in the supporting affidavits.
[6] When considering this application on a without notice basis Priestley J in his minute of 28 June 2010 recorded the matters which he took into account and required investigation of. His minute records those matters as follows:
[4] The foreign judgment which the plaintiffs wish to register was obtained in the High Court of Fiji at Lautoka on
22 January 2010.
[5] I considered it prudent to check on a number of aspects.
These included whether the defendant was represented at the Fiji hearing; that the Act still applied to Fijian judgments; and in particular, whether having regard to the fact that the current regime in Fiji is arguably illegal under Fiji’s Constitution, which has resulted in the departure or replacement of Fiji’s judiciary, whether any steps had been taken by New Zealand to suspend the operation of the Act so far as Fiji is concerned.
[6] As a result of a telephone conference held with the plaintiffs’ solicitor and inquiries made in the Ministry of Foreign Affairs and Trade, it would seem that s3(2) of the Act and Regulation 3 of the Reciprocal Enforcement of Judgments Order 1940 (at which date New Zealand was one of His Majesty’s dominions and Fiji was a colony in the British Empire) the Fijian judgment is amenable to registration in New Zealand. Events in Fiji leave this position unchanged.
I note that s 3 of the Commonwealth Countries Act 1977 still applies to Fiji.
[7] I note that the Fijian Order on its face states that the defendant at the time it was made was represented by counsel. Should the defendant have any basis on which to attack the validity of the Fijian judgment entered against him, or its underlying process, he can have recourse under s 6.
[8] There is compliance with Part 23 of the High Court Rules.
In terms of s 4 of the Act, on proof of prescribed matters, registration of the judgment is mandatory.
[9] Accordingly I direct that the Fijian Order, relating as it does to damages, costs, and interest made against the defendant in the High Court of Fiji on 22 January 2010, is to be registered.
The application of the Reciprocal Enforcement of Judgments Act 1934 to judgments of the High Court of Fiji
[7] The Reciprocal Enforcement of Judgments Act 1934, s 3 provides:
3 Application of this Part of Act
(1) This Part of this Act shall extend to the United Kingdom.
(2) If the Governor-General is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to [money] judgments given in the superior Courts of any part of [Her Majesty's] dominions outside the United Kingdom, or given in the superior Courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement within that part of [Her Majesty's] dominions or in that foreign country, as the case may be, of [money] judgments given in the superior Courts of New Zealand, he may by Order in Council direct—
(a) That this Part of this Act shall extend to that part of [Her
Majesty's] dominions or to that foreign country; and
(b) That such Courts as are specified in the Order in Council shall, for the purposes of this Part of this Act, be deemed superior Courts of that part of [Her Majesty's] dominions or of that foreign country.
[(2A) The fact that a particular Court is not specified in an Order in Council is not taken to imply that the Court is not a superior Court for the purposes of this Act.]
(3) Any [money] judgment of a superior Court of a country to which this Part of this Act extends, other than a [money] judgment of such a Court given on appeal from a Court[, not being a specified inferior Court,]
which is not a superior Court, shall be a judgment to which this Part of this Act applies, if—
(a) It is final and conclusive as between the parties thereto; and
(b) There is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and
(c) It is given after the coming into operation of the Order in Council directing that this Part of this Act shall extend to that country:
Provided that nothing in this paragraph shall apply with respect to judgments given in the United Kingdom or in any other part of [Her Majesty's] dominions to which Part 1 of the Administration of Justice Act 1922 applied immediately before the passing of this Act.
[(3A) Nothing in paragraph (b) of subsection (3) of this section prevents a judgment given in a superior Court of Australia under which Australian tax is payable being a judgment to which this Part of this Act applies.]
(4) For the purposes of this section a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the Courts of the country of the original Court.
(5) The Governor-General may be a subsequent Order in Council vary or revoke any Order in Council previously made under this section.
(6) Repealed.
The Reciprocal Enforcement of Judgments Order 1940, SR1940/88 extended the Act to the Supreme Court of Fiji.
[8] Counsel, as did Priestley J, have both proceeded on the basis that s 3 and the 1940 Order-in-Council applies to decisions of the High Court of Fiji. I have therefore proceeded on that basis.
[9] I also proceed on the basis that the Order-in-Council in relation to the superior courts of Fiji has not been revoked by Order-in-Council.
[10] Counsel’s concession simply acknowledges the inquiries by Priestley J
and recorded in [6] of his minute earlier referred to in this judgment.
Background
[11] The proceeding before the High Court at Lautoka, Fiji was a private civil proceeding between the parties recorded in this application. The first- named plaintiff, Mr Abe, decided to purchase a piece of land in Fiji. He was introduced to the defendant. He asked the defendant to assist him with the purchase of the land. He sent a total of F$112,500 and ¥16,825,000 to the defendant to purchase the land. The defendant does not dispute having received the money. However, contrary to Mr Abe’s instructions the defendant purchased and registered the land under his own name. He subsequently sold it for F$510,000. Judgment was sought against the defendant in the sum of F$510,000. The Fiji High Court considered the claim should be limited to the sums paid plus indemnity costs and interest at the rate of 6 per cent per annum from the date of the filing of the proceedings until judgment. The judgment was expressed to be based on damages for conversion.
The grounds in support of the application analysed
[12] The applicant/defendant’s first ground relies on the Reciprocal Enforcement of Judgments Act 1934, s 6(1)(e). The relevant parts of s 6(1)(e) provide:
6Cases in which registered judgments must, or may, be set aside
(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if [the High Court] is satisfied—
…
(e) That the enforcement of the judgment … would be contrary to public policy in New Zealand;
[13] The public policy exception has been considered in a number of cases. Some have involved the Reciprocal Enforcement of Judgments Act and others have involved applications where, based on the comity principle, summary
judgment by way of the enforcement of the overseas court’s judgment has
been sought.
[14] In Reeves v One World Challenge LLC the court said:1
In our view, the public policy exception is a narrow one, that must be necessarily confined in line with the comity of nations principle. Simply because a case could have been decided differently under New Zealand law is not a weighty enough factor to invoke the exception.
[15] That case was not decided under the Reciprocal Enforcement of Judgments Act 1934. Instead, it was an application to enforce a foreign judgment by way of an application for summary judgment.
[16] The court’s approach, however, in relation to registration under the Reciprocal Enforcement of Judgments Act was confirmed by the Court of Appeal in Lane v Questnet Ltd:2
[47] There is appropriately no challenge to the test in terms of s
6(1)(e) applied by the Judge. The relevant principles are discussed by this Court in Reeves v OneWorld Challenge LLC [2006] 2 NZLR 184 albeit not in the context of statutory reciprocity. The majority at [56] – [64] note that the public policy exception is a narrow one involving notions of
―repugnance‖ and, at [67], matters that would ―shock the conscience‖ of a reasonable New Zealander. (See also William Young J at [104] dissenting on the outcome but not as to the test.)
[17] Mr Davey, in my view, correctly submitted that the applicant has not made out a case for the application of the public policy reasons for setting aside registration. The reason advanced by Mr Omar was because he submitted the legal system in Fiji is currently an unlawful legal system without credibility. What has been produced in support are articles published on the internet but with nothing more.
[18] Mr Davey has drawn attention, however, to the fact that Fijian judgments are still entitled to be registered under the Reciprocal Enforcement
1 Reeves v One World Challenge LLC [2006] 2 NZLR 184 at 196.
2 Lane v Questnet Ltd [2009] NZCA 578 at [47].
of Judgments Act. There has been no revocation of the Order-in-Council. He submitted that it would be contrary to the statute for the High Court to refuse, in a general sense, to enforce a Fijian judgment where the Act still applies to such judgments. I accept and adopt that submission.
[19] It is necessary to look at the judgment itself to see if the particular circumstances of the case would justify the application of the public policy reason for setting aside registration.
[20] This is a private civil dispute. When I consider the backgrounds facts that I have recorded in this judgment I conclude there is nothing inherently repugnant or that would shock the conscience of a reasonable New Zealander so that registration of the judgment should be set aside. The defendant was found liable in that he wrongfully used funds received from the plaintiff for his own advantage. The Fijian Court, if anything, limited the amount of damages that might have been awarded by simply restricting the judgment to the amount that was advanced to the defendant.
[21] Mr Omar raised an additional point. He submitted that there may be issues concerning the specific cause of action relied upon by the plaintiff/judgment creditor. In particular, he said the way in which the High Court in Fiji dealt with the scope of the tort of conversion which was relied upon for the judgment, is a complex one which, he submitted had not been determined by a New Zealand court and might therefore be contrary to public policy.
[22] I do not need to resolve the precise point raised by Mr Omar because to do so elevates it beyond the test which is necessary for recognition of the judgment. I repeat that this is a relatively straightforward case involving two citizens and the advance of money by the plaintiff and the use of that money by the defendant for another different purpose. There is nothing repugnant in requiring the defendant to repay the money that was advanced by the plaintiff to the plaintiff.
[23] Accordingly, I conclude that the public policy reason for setting aside registration simply is without foundation in this case.
[24] I next consider the second ground advanced, namely that the enforcement of the judgment would be contrary to natural justice. There is simply no foundation for this ground. The defendant/applicant was represented at all stages by a barrister and solicitor. No foundation has been placed before me to suggest any lack of notice and any inability to take steps to protect his position in the proceeding conducted in the High Court of Fiji.
[25] Accordingly, I conclude that there is no foundation for this ground.
[26] I consider the third ground advanced. The Reciprocal Enforcement of
Judgments Act 1934, s 7 provides:
7 Powers of High Court on application to set aside registration
(1) If, on an application to set aside the registration of a judgment, the applicant satisfies [the High Court] either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment, the Court, if it thinks fit, may, on such terms as it may think just, either set aside the registration or adjourn the application to set aside the registration until after the expiration of such period as appears to [the High Court] to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by a competent tribunal.
(2) Where the registration of a judgment is set aside under the last preceding subsection, or solely for the reason that the judgment was not at the date of the application for registration enforceable . . . in the country of the original Court, the setting aside of the registration shall not prejudice a further application to register the judgment when the appeal has been disposed of or if and when the judgment becomes enforceable . . . in that country, as the case may be.
[27] The defendant/applicant has not provided any explanation or basis for his seeking leave to appeal other to argue that there may be an issue of how the High Court of Fiji dealt with the scope of the tort of conversion. The evidence before me discloses the judgment for liability based on the tort of conversion was entered against the defendant/applicant on 2 February 2007. The defendant belatedly sought leave to appeal against the decision. The
application for leave to appeal was dismissed by the Fiji Court of Appeal on
27 May 2008.
[28] The defendant was represented by counsel at the quantum hearing. The time for any appeal from that assessment of damages has now expired as was confirmed by Mr Knight. Mr Knight has confirmed that he was admitted as a barrister and solicitor of the High Court of Fiji. That position has not been challenged.
[29] There is no outstanding appeal at this time. All that has been presented to me is an intention to appeal if there is a change in the legal system in Fiji. When I consider the nature of the case I do not consider that there are any proper grounds for the court to exercise its discretion under the Reciprocal Enforcement of Judgments Act 1934, s 7 in this case.
[30] Accordingly, I find the third ground not established.
[31] I have already recorded that the fourth ground referred to earlier in this judgment has been abandoned, quite properly having regard to the material that was presented to this court when the application for registration was made.
Decision
[32] The application to set aside registration of the judgment is refused.
Costs
[33] The plaintiffs, who are respondents in the application, have been successful. The plaintiffs are entitled to costs on the application based on Category 2 Band B together with disbursements as fixed by the Registrar.
[34] I order accordingly.
JA Faire J
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