Jaffari v Grabowski - [2014] NZCA 399

IN THE COURT OF APPEAL OF NEW ZEALAND

CA52/2014
[2014] NZCA 399

BETWEEN	MEHDI JAFFARI AND TRACY JAFFARI Appellants
AND	LIVIA GRABOWSKI Respondent

Hearing:	31 July 2014
Court:	Harrison, Goddard and Andrews JJ
Counsel:	Appellants in person B M Pamatatau and M D Whitlock for Respondent
Judgment:	15 August 2014 at 12.30 pm

JUDGMENT OF THE COURT

A The application for leave to adduce further evidence is dismissed.

B The appeal is dismissed.

CThe appellants are ordered to pay the respondent costs on a Band A basis for a standard appeal together with usual disbursements.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

Mehdi and Tracy Jaffari appeal against the judgment of Rodney Hansen J delivered in the High Court at Auckland,[1] first, dismissing an application to set aside a judgment entered against them in the District Court of New South Wales in favour of Livia Grabowski for the sum of AUD 186,480.83 (the liability judgment)[2] and, second, granting Ms Grabowski leave to register a costs judgment against them for AUD 73,077.37 (the costs judgment).
[1]Grabowski v Jaffari [2013] NZHC 3417 [Grabowski HC].
[2]Grabowski v Jaffari DCNSW Sydney 2009/338914, 15 July 2011 [Grabowski NSW].
The Jaffaris, who were represented by counsel in the High Court but not on appeal, apply also for leave to adduce further evidence. Ms Grabowski opposes the application.

Background

The liability judgment was registered in the High Court of New Zealand under the Reciprocal Enforcement of Judgments Act 1934. Shortly afterwards, Ms Grabowski applied to register the costs judgment. The Jaffaris’ application to set aside the liability judgment and resist registration of the costs judgment is based on the ground that both judgments were obtained by the same fraud.[3] So we will focus on the liability judgment because our decision on the Jaffaris’ appeal relating to it will necessarily determine the result of their appeal on the costs judgment. They stand or fall together.
[3]Reciprocal Enforcement of Judgments Act 1934, s 6(1)(d).
There is no dispute that in determining the Jaffaris’ application to set aside, Rodney Hansen J correctly summarised the proper approach as follows:[4]
[11] On an application to set aside the registration of a foreign judgment, the Court may direct that an issue between the judgment creditor and the judgment debtor must be stated and tried and to give such further directions as may be necessary: r 23.20(2) High Court Rules. In the leading New Zealand case of Svirskis v Gibson,[5] the Court of Appeal said[6] that the power to direct an issue is discretionary and in deciding whether it should be exercised, the Court is entitled to have regard to all the circumstances of the case, including whether the judgment debtor is merely seeking to try again on substantially the same evidence issues already adjudicated on in the overseas court. The Court of Appeal went on to refer to Syal v Heyward[7] where it was said that the Court is not bound to…

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.

Continue reading Jaffari v Grabowski

Details

AGLC: Jaffari v Grabowski [2014] NZCA 399
Case: [2014] NZCA 399
Decision Date: 15 August 2014 at 12.30 pm

CaseChat Overview and Summary

Mehdi and Tracy Jaffari appeal against the judgment of Rodney Hansen J delivered in the High Court at Auckland, dismissing their application to set aside a judgment entered against them in the District Court of New South Wales in favour of Livia Grabowski for the sum of AUD 186,480.83 and granting Ms Grabowski leave to register a costs judgment against them for AUD 73,077.37. The Jaffaris argue that both judgments were obtained by the same fraud, and they apply for leave to adduce further evidence. Ms Grabowski opposes the application.

The Court held that the application for leave to adduce further evidence must fail because the evidence was not fresh and was not credible or cogent. The Court further held that the Jaffaris had failed to establish a prima facie case of fraud or any uneasiness about the circumstances in which the judgments were obtained. The appeal was dismissed, and the Jaffaris were ordered to pay Ms Grabowski costs on a Band A basis for a standard appeal together with usual disbursements.

The Court held that the Jaffaris' application to set aside registration of the liability judgment and challenge the costs judgment was an attempt to try again on substantially the same evidential issues adjudicated in New South Wales in the District Court and again on appeal. The Jaffaris had failed to establish a prima facie case of fraud or any uneasiness about the circumstances in which the judgments were obtained. The appeal was dismissed, and the Jaffaris were ordered to pay Ms Grabowski costs on a Band A basis for a standard appeal together with usual disbursements.

Orders