Jhooti t/a TTP Financial Compensation v Makepeace

[2021] NZHC 2492

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2021-470-94

[2021] NZHC 2492

IN THE MATTER

of the Senior Courts Act 2016 and an application for an order that a memorial of a Judgment of the County Court Money

Claims Centre dated 6 February 2021 be registered in New Zealand

BETWEEN

HARJIT JHOOTI T/A TTP FINANCIAL COMPENSATION

Judgment Creditor

AND

PENELOPE MAKEPEACE

Judgment Debtor

Hearing:	On the papers
Counsel:	P J Anderson for Judgment Creditor
Judgment:	22 September 2021

JUDGMENT OF KATZ J

This judgment was delivered by me on 22 September 2021 at 12:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           CooneyLeesMorgan, Tauranga Counsel:        P J Anderson, Tauranga

HARJIT JHOOTI T/A TTP FINANCIAL COMPENSATION v MAKEPEACE [2021] NZHC 2492

[22 September 2021]

Introduction

[1]    The applicant, Harjit Jhooti (trading as “TTP Financial Compensation”) has filed an originating application without notice for registration of a memorial of a judgment of the County Court of the United Kingdom obtained by Mr Jhooti against Penelope Makepeace. Ms Makepeace currently resides in Tauranga, New Zealand.

Background

[2]    Mr Jhooti operated a business in the United Kingdom providing financial services, trading under the name “TTP Financial Compensation”. Based on the material before the Court (which Ms Makepeace has not yet had an opportunity to respond to) the key facts are as follows.

[3]    Mr Jhooti approached Ms Makepeace to ascertain if she had been erroneously sold two pension policies in the 1990s, while she resided in the United Kingdom. TTP Financial Compensation subsequently submitted a successful claim for compensation on behalf of Ms Makepeace. The seller of the pension policy paid compensation directly to Ms Makepeace. Mr Jhooti sent Ms Makepeace an invoice for TTP Financial Compensation’s fees for making the claim. Ms Makepeace did not pay those fees.

[4]    On 6 February 2021, Mr Jhooti obtained judgment against Ms Makepeace in the County Court of the United Kingdom (the “Foreign Judgment”). The County Court ordered that judgment was to be entered in favour of Mr Jhooti in the sum of

£24,462.93.

[5]    Ms Makepeace now resides in New Zealand. On 10 March 2021, the Foreign Judgment was served on Ms Makepeace at an address in Tauranga by a process server instructed by Mr Jhooti’s solicitor in the United Kingdom.

[6]    Mr Jhooti now applies on a without notice basis for registration of the Foreign Judgment under s 172 of the Senior Courts Act 2016.

Registration of foreign judgments under the Senior Courts Act 2016

[7]    Judgments of the County Court of the United Kingdom are not registrable in New Zealand under the Reciprocal Enforcement of Judgments Act 1934.

[8]    Where the Reciprocal Enforcement of Judgments Act procedure does not apply, a memorial of a foreign judgment may be registrable under the Senior Courts Act 2016.1

[9]    Section 172 of the Senior Courts Act applies to any judgment or order obtained in any court of any Commonwealth country for the payment of money.2 A person in whose favour the judgment was obtained may file a memorial that is authenticated by the seal of that court.3 A seal purporting to be the seal of an overseas court is deemed and taken to be the seal of that court until the contrary is proved, with the onus of proving that the seal is not the seal of that court lying on the party denying or objecting to the seal.4

[10]   The memorial must be signed by a person in whose favour the judgment was issued, or their lawyer, and must contain the following particulars:5

(a)the names and additions of the parties;

(b)the form or nature of the action or other proceeding;

(c)when commenced, the date of the signing or entering-up of the judgment, the passing of the decree, or the making of the rule or order;

(d)the amount recovered, or the decree pronounced, or rule or order made; and

(e)if there was a trial, the date of the trial and amount of verdict given.

1      Senior Courts Act 2016, s 172(8); and Reciprocal Enforcement of Judgments Act 1934, s 13.  See also Robert Osborne (ed) McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [SC172.02].

2      Section 172(1).

3      Section 172(2).

4      Section 172(4).

5      Section 172(3).

[11]   Once filed, the memorial becomes a record of the judgment and execution may issue upon it in accordance with s 172.6 That procedure is spelt out in the remainder of s 172.

[12]   Section 172(5) provides that the party in whose favour the judgment was obtained may apply to the High Court for the making of a rule or the issue of a summons calling on the person against whom the judgment was obtained to show cause, within the time after personal or other service of the rule or summons as the court directs, why execution should not issue upon the judgment. That rule or summons must give notice that in default of appearance, execution may issue accordingly, and if the person served with the rule or summons does not appear, or does not show sufficient cause against such rule or summons, the court, on due proof of service, may make an order for issuing execution.7 The order for execution may be subject to any terms and conditions that the court thinks fit.8 The judgment may then be enforced in the same manner as a judgment of the High Court.9

[13]   In Re Ulster Bank Ireland Ltd, ex parte Clancy, Associate Judge Osborne considered an application for the registration of a judgment under s 56 of the Judicature Act 1908,10 the predecessor to s 172.11 The Associate Judge noted that the “filing of a memorial to become a record… is a comparative rarity”, and that the “precise requirements in terms of documents and steps” for doing so were not spelt out in any of the leading commentary.12 The Judge commented that:

[6]   Section 56(1) does not define (other than by reference to its contents and signature) what is required by way of a “memorial” of the foreign judgment. I take the term “memorial” to have the meaning in Black's Law Dictionary:

memorial,n. (17c) 1. An abstract of a legal record, esp. a deed; MEMORANDUM (1).

(emphasis original and footnote omitted)

6      Section 172(2).

7      Section 172(6).

8      Section 172(6).

9      Section 172(7).

10 Re Ulster Bank Ireland Ltd, ex parte Clancy [2014] NZHC 1939.

11     Robert   Osborne   (ed) McGechan   on   Procedure (online   looseleaf   ed,   Thomson   Reuters) at [SC172.01] states that s 172 “re-enacts s 56 of the Judicature Act 1908 without substantive change. The language is modernised and the section is specifically made subject to s 13 of the Reciprocal Enforcement of Judgments Act 1934, consistent with s 13 itself.”

12 Re Ulster Bank Ireland Ltd, ex parte Clancy [2014] NZHC 1939 at [18].

[14]   The applicant in that case had not filed the memorials in the proper form and had omitted required particulars.13 Associate Judge Osborne adjourned the application to enable the applicant to file the required memorials,14 and noted that:

[22]   The consideration of the memorials as documents to be recorded is   the province of the Registrar. It does not require an examination or judgment on the merits of the foreign judgment.

[15]   The Associate Judge also helpfully attached an example of a memorial to the judgment to assist with that process.

Are the procedural requirements for registration of the foreign judgment met?

[16]   Mr Jhooti has filed an affidavit attaching, among other things, the Foreign Judgment. The Foreign Judgment is stamped with the seal of the County Court.

[17]   Mr Anderson, counsel for Mr Jhooti, has filed a memorial of the Foreign Judgment setting out all the matters required by s 172(3) of the Senior Courts Act. I am therefore satisfied that the procedural requirements for registration under s 172 of the Senior Courts Act are met.

Should a costs order be made at this stage?

[18]   Mr Jhooti seeks an award of costs and disbursements on a 2B basis, in the sum of $6,804.00. It would be contrary to the principle of natural justice, however, to award costs against Ms Makepeace when she has not yet had an opportunity to be heard. The appropriate course, in my view is to reserve costs until either an order is made issuing execution, or the application is finally determined (if a notice of opposition is filed).

13     At [14]-[16].

14 At [21].

Result

[19]I make the following orders:

(a)The orders set out in the draft “Order for registration of a memorial of a County Court Judgment  obtained  by  Harjit  Jhooti  trading  as  TPP Financial  Compensation  against   Penelope   Makepeace  dated 6 February 2021” filed by the applicant on 17 September 2021, excluding the order for costs.

(b)The applicant is to serve on the respondent copies of the various documents filed by the applicant on 17 September 2021, together with Mr Jhooti’s affidavit and any other relevant documents.

(c)Costs are reserved.

Katz J