Fairmount Trustee Services v Robinson

[2012] NZHC 687

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-5064 [2012] NZHC 687

IN THE MATTER OF     the Reciprocal Enforcement of Judgments

Act 1934

AND IN THE MATTER OF a order for recovery of reward of the

Staines County Court

BETWEEN  FAIRMOUNT TRUSTEE SERVICES LIMITED

Applicant

ANDCOLIN SYDNEY ROBINSON First Respondent

ANDELEANOR ROBINSON Second Respondent

Hearing:         14 March 2012

Appearances: M J Robinson for Applicant

First respondent in person

Judgment:      13 April 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 13 April 2012 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:

Turner Hopkins, Auckland – email: [email protected]

Copy for:

C Robinson – email:  [email protected]

FAIRMOUNT TRUSTEE SERVICES LIMITED V ROBINSON HC AK CIV 2011-404-5064 [13 April 2012]

Introduction

[1]      The first respondent (“Mr Robinson”) has applied to set aside the registration of a foreign judgment,[1] that foreign judgment having been registered on the application   of   the   applicant   (“Fairmount”).      In   the   course   of   considering Mr Robinson’s  application,  it  has  become  apparent  that  Fairmount  proceeded incorrectly in  obtaining  its  order for  registration.   For reasons  set  out  below,  I propose to set aside registration.  My doing so does not affect Fairmount’s right to apply again for registration.

[1] Reciprocal Enforcement of Judgments Act 1934, s 6(1).

[2]      The events which have given rise to this state of affairs are as follows.

[3]      By  an  originating  application  dated  8  August  2011  (“the  application”) Fairmount sought an order for registration of a judgment given in the Staines County Court on 4 May 2010 (“the County Court judgment”) against Mr Robinson and his wife, the second respondent, Mrs Robinson.  As matters have transpired, Fairmount should not have applied for registration of this judgment but one it obtained subsequently in the High Court of Justice Queens Bench Division.

[4]      Be  that  as  it  may,  the  evidence  that  Fairmount  filed  in  support  of  the application  was   to  the  effect  that  the  County  Court  judgment   followed  a determination  of  the  Pensions  Ombudsman  in  the  United  Kingdom  against Mr and Mrs   Robinson,   amongst   others.     Fairmount   had   then  registered   the determination in the County Court.   The effect of that registration was to permit Fairmount to enforce the determination as if it were a judgment of the County Court.

[5]      In its application Fairmount also sought an order that Mr and Mrs Robinson pay interest on the judgment sum at 15 per cent per annum, that being the rate said to

be allowed under The County Courts (Interest on Judgment Debts) Order 1991.

[6]      The  judgment  sum  sought  against  Mr  Robinson  was  £810,701.00,  plus interest of £152,006.44.

[7]      The  Court  made  orders  granting  the  application  on  23  August  2011. Fairmount then sealed and served the orders.

[8]      Having been served with the sealed order, Mr Robinson applied to set aside registration pursuant to s 6(1) Reciprocal Enforcement of Judgments Act 1934 (“the Act”).    Section  6(1)  sets  out  the  circumstances  in  which  the  Court  must  set aside registration.    The  grounds  on  which  Mr  Robinson  relied  were  those  in ss 6(1)(b) and (c) of the Act.  Given the view I take of the matter, it is unnecessary for me to express a view on the merits of Mr Robinson’s arguments.

[9]      As I have said, notwithstanding that it applied for registration of the County Court judgment, the evidence Fairmount filed with its application was to the effect that it had subsequently obtained  an order for  registration of the County Court judgment in the High Court of Justice Queens Bench Division (“UK High Court judgment”), registering the County Court judgment in the High Court of Justice.  It was this later order (which by definition in the Act, is a judgment for the purposes of the Act) that Fairmount should have applied to register in New Zealand, not the County Court judgment.

[10]     Recognising this, counsel for Fairmount has now sought leave to amend the originating application, so as seek orders for registration of the UK High Court judgment and for interest at its permitted rate of 8, rather than 15, per cent per annum.  Counsel has also submitted an amended order for sealing.

[11]     Counsel submits that I have power to amend the originating application and the order pursuant to High Court Rules, r 1.9, and that this is an appropriate case for such amendment.  Rule 1.9 reads as follows:

1.9      Amendment of defects and errors

(1)       The court may, before, at, or after the trial of any proceeding, amend any  defects  and  errors  in  the  pleadings  or  procedure  in  the proceeding, whether or not there is anything in writing to amend,

and whether or not the defect or error is that of the party (if any)

applying to amend.

(2)       The court may, at any stage of a proceeding, make, either on its own initiative or on the application of a party to the proceedings, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.

(3)       All amendments under subclause (1) or (2) may be made with or without costs and on any terms the court thinks just.

(4)       This rule is subject to rule 7.18 (no steps after the setting down date without leave).

[12]     I do not propose to allow the amendments sought for the following reasons.

[13]     First, leaving aside the fact of the UK High Court judgment, on the material before me I am not satisfied that there was ever jurisdiction under the Act to order registration of the County Court judgment.  In those circumstances, s 6(1)(a) requires that registration be set aside.

[14]     Secondly, r 1.9 allows amendments to defects and errors in pleadings or procedure but it does not allow for amendment to an order that the Court has made. Accordingly, Fairmount would not be assisted even if I were to allow an amendment to the application.

[15]     There is scope under High Court Rules, r 11.10 to correct an order if there has been a clerical mistake or something similar, but this case would fall outside the scope of that rule.   That may be why Fairmount has not relied on r 11.10.   Leaving aside the grounds on which Mr Robinson has relied, the variation that Fairmount now seeks is fundamental, so as to effect registration of a different judgment from a different Court.

[16]   Thirdly, Mr Robinson is now self represented and I do not consider it appropriate to anticipate what steps he might take if served with an application which identifies the judgment Fairmount seeks to have registered and the grounds and  statutory  provisions  on  which  it  relies.    My  concerns  in  that  regard  are heightened by the fact that the content and structure of the evidence that Fairmount filed at the outset, in support of the application, fell well short of what the Court and

a judgment debtor requires on such an application.  Nor did Fairmount’s application

identify the provisions of the Act on which it relied for registration.

Result

[17]     I set aside registration of the judgment of the Staines County Court that is referred to in the sealed order of the Court dated 23 August 2011, together with all other orders in the sealed order.

[18]     Costs are to lie where they fall.

[19]     I note that, by consent and before the above came to light, matters as between

Fairmount and Mrs Robinson were adjourned to the Duty Judge’s list on 18 June

2012.  I order that the matter be removed from the list that day.  Subsequent steps as between Fairmount and Mrs Robinson are to be ascertained following receipt of a memorandum from Fairmount, to be served on Mrs Robinson, setting out what Fairmount proposes in that regard, given the orders I have made in this decision.

..................................................................

Peters J