Fiji Development Bank v Chandra
[2024] NZHC 1185
•13 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002938
[2024] NZHC 1185
UNDER Reciprocal Enforcement of Judgments Act 1934 IN THE MATTER OF
a judgment of the High Court in Fiji, Civil Action No HBC 93 of 2018
BETWEEN
FIJI DEVELOPMENT BANK
Applicant
AND
ANAND ATILESH CHANDRA and SUBHAS CHANDRA
Respondents
On the papers Counsel:
A R Govind for Applicant
Judgment:
13 May 2024
JUDGMENT VAN BOHEMEN J
This judgment was delivered by me on 13 May 2024 at 3 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………..
Counsel/Solicitors:
Resolute Lawyers, Auckland
FIJI DEVELOPMENT BANK v CHANDRA [2024] NZHC 1185 [13 May 2024]
[1] Fiji Development Bank (the Bank), a judgment creditor, applies to register a judgment issued in the High Court of Fiji under the Reciprocal Enforcement of Judgments Act 1934 (the Act) and pt 23 of the High Court Rules 2016 (the Rules).
Background
[2] The background to this application is set out in an affidavit sworn by Bimal Ajenesh Sudhakar, General Manager Risk of the Bank, on 27 November 2023 and filed under r 23.11 of the Rules.
[3] On 9 March 2023, the Bank obtained a judgment in the High Court of Fiji against Anand Atilesh Chandra and Subhas Chandra (together, the Chandras) (the Fiji Judgment). The Fiji Judgment ordered the Chandras to pay the Bank the sum of FJD 7,427,652.93 plus interest at a rate of five per cent from the date of judgment until the sum is paid and costs of FJD 5,000.1 A certified copy of the Fiji Judgment bearing the seal of the High Court of Fiji was annexed to Mr Sudhakar’s affidavit.
[4] Mr Sudhakar says that, on 29 May 2023, the Chandras filed an application in the High Court of Fiji to stay the Fiji Judgment. At the date Mr Sudhakar’s affidavit was sworn, no hearing date had been set and the Fiji Judgment remained enforceable.
[5] On 27 November 2023, the Bank filed this originating application without notice to register the Fiji Judgment in New Zealand under the Act. At that date, the Fiji Judgment had not been satisfied either fully or partially by the Chandras. Mr Sudhakar believes the Chandras are currently residing in New Zealand.
[6] Mr Sudhakar deposes that, at the date of swearing his affidavit, the FJD to NZD exchange rate was:
1 FJD = 0.736226 NZD
1 Fiji Development Bank v Chandra HC Fiji HBC 93 of 2018, 9 March 2023.
[7] Accordingly, the Bank seeks orders registering the Fiji Judgment in New Zealand as:
(a)Judgment in the sum of NZD 5,468,431.13;
(b)interest at the rate of five per cent per annum from 9 March 2023 until the judgment sum is satisfied;
(c)costs in the sum of NZD 3,682.82; and
(d)costs and disbursements of NZD 4,125 in respect of this application, calculated on a 2B basis.
Legal principles
[8] The registration of foreign judgments is governed by the Act and pt 23 of the Rules. Section 4(1) of the Act provides:
A person, being a judgment creditor under a judgment to which this Part applies, may apply to the High Court at any time within 6 years after the date of the judgment … to have the judgment registered in the High Court, and on any such application the said court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered:
provided that a judgment shall not be registered if at the date of the application—
(a)it has been wholly satisfied; or
(b)it could not be enforced in the country of the original court.
Section 4(2) outlines the effect of registration under the Act, where:
(a)a registered judgment shall, for the purposes of enforcement, be of the same force and effect; and
(b)proceedings may be taken on a registered judgment; and
(c)the sum for which a judgment is registered shall carry interest; and
(d)the High Court shall have the same control over the enforcement of a registered judgment—
as if the judgment had been a judgment originally given in the High Court on the date of registration:
…
[10] Section 4(3) provides that, where a sum payable under a judgment that is to be registered is expressed in a currency other than New Zealand currency, the judgment is to be registered:
(a)if the judgment creditor has stated in the application that the judgment creditor wishes the judgment to be registered in the currency in which it is expressed, in that currency; or
(b)in any other case, as if it were for an equivalent amount in New Zealand currency, based on the rate of exchange prevailing on the day of the application for registration.
[11]Section 4(6) provides:
In addition to any sum of money payable under the judgment of the original court, including any interest which by the law of the country of the original court becomes due under the judgment up to the time of registration, the judgment shall be registered for the reasonable costs of and incidental to registration, including the costs of obtaining a certified copy of the judgment from the original court.
[12]Rule 23.17(1) of the Rules provides that:
The date of the order for registration and the date of the registration are to be treated as the date when the originating application was filed.
[13] Section 3(3)(a) provides that the provisions on registration apply to any money judgment of a senior court of a country to which the pt 1 of the Act applies, where that judgment is final and conclusive. Previous decisions of this Court confirm that, in accordance with the Reciprocal Enforcement of Judgments Order 1940, judgments of the High Court of Fiji are registrable under the Act.2
[14] Section 3(4) provides that a judgment will be deemed 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.” Section 2 defines “appeal” to include an application for a stay of execution.
2 Abe v Azim HC Auckland CIV-2010-404-3741, 4 April 2011 at [8]; Fiji National Provident Fund Board v Bese [2023] NZHC 1226.
[15] Part 23 of the Rules outlines the “prescribed matters” referenced in s 4 of the Act, providing for the procedural requirements to register of a foreign judgment under the Act. Those matters include the following:
(a)Rule 23.4 — the application must be made by originating application;
(b)Rule 23.6 — the application must be filed in the registry of the court nearest to the residence or principal place of business of the judgment debtor.
(c)Rule 23.7 — the application must be supported by affidavit evidence;
(d)Rule 23.8 — a certified copy of the foreign judgment must be exhibited to the affidavit in support;
(e)Rule 23.10(a) — the affidavit filed in support must include the rate of exchange on the day of the application and the amount that the sum payable under the judgment represents in NZD.
(f)Rule 23.10(b) and (c) — the affidavit filed in support must include the interest rate carried by the judgment and the amount of interest that will have become due under the judgment up to the time of the application.
Discussion
[16] In support of this application, Mr Sudhakar deposes that, to the best of his information and belief, the Fiji Judgment has not been satisfied, and that at the date the application was filed, the Fiji Judgment was able to be enforced in Fiji. Despite the Chandras’ application for a stay of proceedings, as that application had not been heard as at 27 November 2023, in accordance with s 3(4) of the Act, the Fiji Judgment can be deemed final and conclusive and, therefore, capable of registration.
[17] The Fiji Judgment was expressed in Fijian Dollars. The Bank seeks that, with reference to s 4(3) of the Act, the Judgment be registered in the equivalent amount of New Zealand Dollars. Mr Sudhakar has provided evidence of the rate of exchange
prevailing on the day this application was filed. I am satisfied in relation to the orders which follow that the orders are for the New Zealand currency equivalent.
[18] I am also satisfied that the prescribed matters provided for in pt 23 of the Rules have been met, with one exception. Mr Sudhakar’s affidavit does not state, as required by r 23.10(c), the amount of interest that will have become due under the Fiji Judgment up to the time of this application. While Mr Sudhakar confirms the interest rate carried by the Fiji Judgment is five per cent, he did not quantify the interest owing as at 27 November 2023.
[19] However, the notice of application does provide that missing detail. An interest rate of five per cent per annum on NZD 5,468,431.13 equates to a daily accrual amount of NZD 749.10. Therefore, the amount of interest owing as at 27 November 2023 (263 days after the Fiji Judgment was issued) is NZD 197,013.30.
[20] The reason for r 23.10(c) is to reflect s 4(6) of the Act. That provision permits registration of the interest due under the Fiji Judgment up until the time of registration, but not beyond that date. The Bank seeks orders registering the Fiji Judgment including interest up until the date the judgment sum is satisfied. However, the Act only permits registration of interest up until the date the judgment is to be registered. In accordance with r 23.17(1), that is the date when the originating application was filed — 27 November 2023. Accordingly, the Bank’s entitlement to the registration of interest under the Fiji Judgment is limited to NZD 197,013.30.
[21] Under s 4(6), the Bank is entitled to registration of reasonable costs of and incidental to registration of the Fiji Judgment.
Result and orders
[22] I am satisfied that the application for registration should be granted, with an adjustment to the interest sought. I order that, as of 27 November 2023, Anand Atilesh Chandra and Subhas Chandra are liable to Fiji Development Bank for:
(a)the judgment sum of NZD 5,468,431.13;
(b)interest at the rate of five per cent per annum on the judgment sum from 9 March 2023 until 27 November 2023 in the sum of NZD 197,013.30;
(c)costs in the sum of NZD 3,682.82; and
(d)2B costs and disbursements in respect of this application in the sum of NZD 4,125.
[23] I record that, in accordance with r 23.18, the Bank must serve a notice of registration on the Chandras personally. If the Chandras cannot be located, the notice should be served on their solicitors in Fiji.
G J van Bohemen J
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