Fiji National Provident Fund Board v Bese

[2023] NZHC 1226

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-768

[2023] NZHC 1226

IN THE MATTER

of the Reciprocal Enforcement of Judgments Act 1934

AND IN THE MATTER

of a judgment of the High Court of Fiji at Suva

BETWEEN

FIJI NATIONAL PROVIDENT FUND BOARD

Judgment Creditor

AND

KOLINIO TUIRA BESE

Judgment Creditor

Hearing:	On the papers
Counsel:	M R Crotty and L H Mau for judgment creditor
Judgment:	14 December 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 14 December 2023 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Russell McVeagh, Auckland

FIJI NATIONAL PROVIDENT FUND BOARD v BESE [2023] NZHC [1226 ] [14 December 2023]

[1]    Kolinio Tuira Bese was employed by the Fiji National Provident Fund Board in Fiji. The Board says it agreed to support Mr Bese to obtain a post-graduate qualification, studying at the University of Auckland in New Zealand, because he entered a bond agreement, promising to return to employment with the Board until either the bond amount was repaid, or five further years of employment had lapsed.

[2]    On 1 February 2023, the Board obtained from the High Court of Fiji a default judgment against Mr Bese in the sum of FJD 271,736.46 plus interest and costs, on the basis Mr Bese had not met his bond.1

[3]    The Board applies to this Court, without notice to Mr Bese, for registration of that judgment.

Questions of form

[4]Two preliminary procedural questions arise:

(a)Is the Board’s application correctly made without notice?

(b)If so, does the application require certification by its solicitor or counsel in New Zealand?

[5]I deal with these questions together.

[6]    I start by observing that the Board’s application relies on the Reciprocal Enforcement of Judgments Act 1934 (the Act). Subpart 1 of pt 23 of the High Court Rules 2016 applies to the enforcement of judgments under the Act.2 Under r 23.4, which appears in that subpart:

23.4     Method of application for registration

(1)An application for registration must be made by originating application in form G 30, and Part 19 applies except so far as it is modified by or inconsistent with this subpart.

1      Fiji National Provident Fund Board v Bese HC Fiji HBC 181 of 2022, 1 February 2023, citing Law Reform (Miscellaneous Provisions) (Death and Interest) Act 1935, s 4.

2      High Court Rules 2016, r 23.1.

(2)The application may be made without notice to the judgment debtor.

[7]    Rule 7.23 (headed “Application without notice”) applies under r 19.10 (within pt 19) “with all necessary modifications to proceedings commenced by originating application”.3 Rule 7.23 provides:

7.23    Application without notice

(1)A person who wants to make an application to the court and have the application determined without any other party having been served (in these rules referred to as an application without notice) must use form G 32.

(2)An application without notice may be made only—

(a)on 1 or more of the following grounds:

(i)that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant:

(ii)that the application affects only the applicant:

(iii)that the application relates to a routine matter:

(iv)that an enactment expressly permits the application to be made without serving notice of the application:

(v)that the interests of justice require the application to be determined without serving notice of the application; and

(b)if the applicant has made all reasonable inquiries and taken all reasonable steps to ensure that the application and supporting documents contain all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that would support the position of any other party.

(3)An applicant who makes an application without notice must, if the application is of a kind that is likely to be contested if it were made on notice, file a memorandum with the application that sets out—

(a)the background to the proceeding (including the material facts that relate to the proceeding); and

(b)the grounds on which each order is sought; and

(c)an explanation of the grounds on which each order is sought without notice; and

3      Rule 19.10(1)(e).

(d)all information known to the applicant that is relevant to the application, including any known grounds of opposition or defence that any other party might rely on, or any facts that would support opposition to the application or defence of the proceeding by any other party.

(4)Failure to disclose all relevant matters to the court or to comply with subclause (3) may result in the court—

(a)dismissing the application; or

(b)if 1 or more orders have been made by the court in reliance on the application, rescinding those orders.

(5)This rule does not apply to an application for a grant of administration without notice (see rule 27.4).

[8]    At first blush, since r 23.4 merely permits without notice applications for registration, and r 7.23 (which applies “except so far as it is modified by or inconsistent with” r 23.4) requires certain grounds to be met for applications to be made without notice, it might be thought that one of the r 7.23(2) grounds must be met before an application for registration of a foreign judgment.

[9]    That is the opinion of the learned authors of McGechan on Procedure who write:4

In the case of an application made without notice to the judgment debtor, while not an interlocutory application, the application is to be certified in accordance with r 7.23(2) as if it were an application made without notice.

[10]Similarly, Sim’s Court Practice states:5

… Where the application is made without notice the certification required by rule 7.23 must be given.

[11]   However, in Re Perkins, ex parte Perkins, Heath J observed that it was usual practice for applications for registration of foreign judgments to be made without notice to the judgment debtor.6 Either the r 7.23(2) grounds are usually made out, or the learned authors of McGechan and Sims are in error because the grounds are not required to be met.

4      Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR23.4.01].

5      Laura O’Gorman (ed) Sim’s Court Practice (online ed, LexisNexis) at [HCR23.4.1].

6      Re Perkins, ex parte Perkins HC Whangarei CIV-2010-488-375, 25 August 2010 at [1].

[12]I respectfully take the latter view.

[13]   This is because of the references in r 23.4 to form G 30, and in  r 7.23 to  form G 32.

[14]   Form G 30 takes the form of a without notice application. A note to the form observes that “This form should be used if the application is being made without notice to the judgment debtor. Modify it appropriately if it  is  being made on notice.”  Form G 30 does not in its terms require any assertion that one or more of the r 7.23(2) grounds are met. And it does not provide for certification.

[15]   Form G 32 similarly takes the form of a without notice application. But in its terms it requires an assertion that one or more of the r 7.23(2) grounds are met, as well as certification on the part of the applicant’s solicitor or counsel to that effect and also to the effect that contradictory factors have been sought and identified.

[16]   Yet r 23.4(1) requires that applicants for foreign judgment registration use form G 30 and proceeds to apply pt 19 “except so far as it is modified by or inconsistent with” the subpart containing r 23.4. And r 7.23(1) requires that form G 32 be used.

[17]   In my view, without notice applications for registration of a foreign judgment are clearly permissible, and are not required to state the grounds on which they are made without prejudice or be certified in accordance with r 7.23 and form G 32, as this would contradict (that is, modify or be inconsistent with) r 23.4. Instead, r 23.4(1) establishes a presumption that applications for registration of foreign judgments are made without notice in form G 30, without requiring any assertion that one or more of the r 7.23(2) grounds are made out, and without requiring certification, in accordance with form G 32.

[18]   This presumption does not preclude such applications being made on notice at the applicant’s discretion, in accordance with the above-mentioned note to form G 30 and r 23.4(2). For example, where the judgment debtor has been served with the foreign judgment and has notified specific objection to registration in New Zealand.

[19]   I observe that drawing this distinction between applications for foreign judgment registration and originating applications generally will not substantially undermine the level of procedural protection enjoyed by foreign judgment debtors. Part 23 of the High Court Rules contains provisions:

(a)requiring that any order for registration state a period within which an application may be made to set aside the registration, and prohibiting enforcement until that period expires;7 and

(b)requiring service on the judgment debtor of notice of registration8 (the event of service commencing the above period of non-enforcement).

[20]   To require applications for foreign judgment registration to be made on notice except where additional grounds are made out and certified would, I consider, introduce additional impediment to foreign judgment registration that is both procedurally unnecessary and might imply an uncertainty about the appropriateness of the foreign judgment which is inconsistent with international comity. I take the drafters of r 23.4 to have made specific provision for registration without notice as a matter of course.

[21]   In this case, the Board’s application is indeed  made  without  notice,  in  form G 30 and without the certification required by r 7.23 and form G 32. I consider its application to be procedurally sound.

Merits of the Board’s application

[22]   The Board invokes s 4 of the Act, which provides for applications for registration within six years of the judgment, subject to proof of the prescribed matters and to the other provisions of the Act. The proviso to s 4(1) precludes registration if at the date of the application, the judgment has been wholly satisfied or it could not be enforced in the country of the original court.

7      Rule 23.15

8      Rule 23.18

[23]   In support of the application, Laisani Macedru, the Board’s Manager Legal, has deposed that to the best of her information and belief the judgment has not been satisfied, and that at the date of the application the judgment was able to be enforced in Fiji.

[24]   The judgment in this case was expressed in Fijian currency. The Board has stated, with reference to s 4(3) of the Act, that it wishes the judgment to be registered in the equivalent amount of New Zealand currency. Evidence has been provided as to the rate of exchange prevailing on the day of the application for registration. I am satisfied in relation to the orders which follow that the orders are for the New Zealand currency equivalent.

[25]   By virtue of s 2 of the Act, proof of the “prescribed matters” means proof of the matters prescribed by the rules of court, meaning in this case, the High Court Rules. I turn to deal with proof of the matters there prescribed.

(a)Rule 23.4 — the application has been correctly made by originating application.

(b)Rule 23.6 — the application has been correctly filed in the  Wellington Registry, Wellington being Mr Bese’s residence or place of business.

(c)Rule 23.7 — the application has been supported by affidavit evidence.

(d)Rule 23.8 — a certified judgment of the Local Court of the High Court of Fiji has been produced. The copy of the judgment bears the seal of the Local Court of Fiji and is therefore a matter for judicial notice.

(e)Rule 23.10 — Ms Macedru has identified the rate of interest carried by the judgment by the law of Fiji, which is four per cent per annum. The annual interest rate equates to a daily accrual amount of NZD 21.87. The amount of interest owing until 14 December 2023 (317 days) is

NZD 6,910.92.    The total amount, judgment sum and interest, is NZD 206,474.18.

(f)Rule 23.11 — in compliance with r 23.11(1) Ms Macedru states to the best of her information and belief that—

(i)the Board is entitled to enforce the judgment;

(ii)at the date of the application, the judgment had not been satisfied;

(iii)at the date of the application, the judgment was able to be enforced in Fiji;

(iv)if the judgment were registered, the judgment would not be, or be liable to be, set aside under s 6 of the Act;

(v)the full names, and other prescribed details of the debtors, are set out in the affidavit; and

(vi)in compliance with the requirements of r 23.11(2), the source of the information is stated. The grounds of belief are a combination of written information which has been obtained from the Board’s solicitors, from interest rates published by the Reserve Bank of Fiji and from the process server who served Mr Bese in New Zealand.

[26]   I am accordingly satisfied that the application for registration should be granted, and that Mr Bese is liable as of 14 December 2023 for NZD 206,474.18.

[27]   The Board also claims 2B costs and disbursements of NZD 5,848.    I am satisfied these are appropriate and order accordingly.

Johnstone J