Emmott v Michael Wilson & Partners Limited - [2017] NZHC 592

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-722 [2017] NZHC 592

UNDER
the Reciprocal Enforcement of Judgments

Act 1934

IN THE MATTER OF

an order of the Commercial Court, Queen’s Bench Division, High Court of Justice of England and Wales

BETWEEN

JOHN FORSTER EMMOTT Judgment Creditor

AND

MICHAEL WILSON & PARTNERS LIMITED

Judgment Debtor

Hearing: 15 March 2017

Counsel:

J F Emmott in person (via telephone) K P Sullivan for Judgment Debtor

Judgment:

29 March 2017

JUDGMENT OF CLIFFORD J

Introduction

[1] On 14 October 2016 Clark J, on Mr Emmott’s application in these proceedings, made an order under the Reciprocal Enforcement of Judgments Act
1934 (the REJA) registering an order of the Commercial Court, Queen’s Bench

Division, United Kingdom High Court of Justice of England and Wales, dated

26 June 2015 (Claim number 2014/Folio 1210) (the Order).

[2] The Order is against Michael Wilson & Partners Limited (MWP). The Order allowed, but dismissed, MWP’s challenge to costs orders made against it in
Mr Emmott’s favour in arbitral proceedings. Those costs comprised £3,209,213 and

EMMOTT v MICHAEL WILSON & PARTNERS LIMITED [2017] NZHC 592 [29 March 2017]

US$841,213 plus interest. The Order also gave Mr Emmott leave to enforce the award in the same manner as a judgment of the High Court of Justice and entered judgment against MWP in terms of the award.

[3] On 21 December 2016, MWP commenced, by way of originating application (again in this proceeding), an application for registration of the Order under the REJA to be set aside or, alternatively, adjourning that application until MWP had exhausted its steps to challenge, appeal, and/or set aside the awards on which the Order was based.

[4] On 6 March 2017, I convened the first case management conference for MWP’s application. I set that application down for a hearing on 19 June 2017, here in the High Court at Wellington, and made timetabling orders. MWP’s challenge to the registration of the Order is, thus, pending in these proceedings.

[5] On 21 February 2017, Mr Emmott filed, in reliance on registration of the Order under the REJA, an application for an interim charging order. The background to that application is that MWP obtained orders in the English Courts, registered those orders in New Zealand under the REJA, and enforced them against a Mr Sinclair. By way of enforcement, the Sherriff of the High Court at Wellington has sold a Wellington property belonging to Mr Sinclair. That sale settled on
24 March 2017, and Mr Emmott seeks an interim charging order against the proceeds. This judgment addresses that application.

Submissions

[6] Mr Emmott says that such an order is appropriate, in effect to preserve the benefit for him of the Order as registered in New Zealand, as enforceable against the assets of MWP represented by the proceeds of enforcement. Notwithstanding the world-wide freezing orders referred to at various points in the various proceedings now before the New Zealand Courts, Mr Emmott is concerned that, without that charging…

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: [2017] NZHC 592
Decision Date: 29 March 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Clifford J considered an application by Mr. John Forster Emmott for an interim charging order against the proceeds of a property sale obtained by Michael Wilson & Partners Limited (MWP). The case originated from an order of the Commercial Court, Queen’s Bench Division, High Court of Justice of England and Wales, which Mr. Emmott sought to enforce in New Zealand under the Reciprocal Enforcement of Judgments Act 1934 (REJA). The court registered the UK order on 14 October 2016, but MWP challenged the registration. Mr. Emmott applied for a charging order to prevent MWP from removing the proceeds of the sale of a property in Wellington, which belonged to Mr. Sinclair.

The legal issues before the court were whether the court could grant an interim charging order under section 4(2) of the REJA and rule 17.42 of the High Court Rules 2016, or whether the court could grant such an order under rule 17.41 of the High Court Rules 2016 based on proof that MWP intended to defeat Mr. Emmott as a creditor. Clifford J found that enforcement of a charging order, as defined in the High Court Rules, could not occur until the application to set aside the registration of the UK order had been finally determined. Furthermore, Clifford J found that Mr. Emmott had not provided sufficient evidence of MWP's intent to defeat him as a creditor to grant a charging order under rule 17.41.

Clifford J declined Mr. Emmott's application for an interim charging order and ordered that costs should follow the event. The court held that the REJA and the High Court Rules do not allow for enforcement of a charging order based on a registered judgment until the application to set aside registration has been finally determined. Furthermore, Clifford J found that Mr. Emmott had not met the high standard of proof required to establish MWP's intent to defeat him as a creditor under rule 17.41. Consequently, the court did not grant the interim charging order sought by Mr. Emmott.

Orders