Landmark Operations Limited (ACN 008 743 217) v Borst

[2012] NZHC 1011

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2012-476-000155 [2012] NZHC 1011

IN THE MATTER OF     the Reciprocal Enforcement of Judgments

Act 1934

AND IN THE MATTER OF a Judgment of the County Court of

Victoria

BETWEEN  LANDMARK OPERATIONS LIMITED (ACN 008 743 217)

Judgment Creditor

ANDNICOLA JOANNA BORST First Judgment Debtor

ANDCORNELIS JACOBUS BORST Second Judgment Debtor

Hearing:         Determined on the papers

(Heard at Christchurch)

Appearances: J P Nolen for Judgment Creditor

No appearance for Judgment Debtor

Judgment:      14 May 2012

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

[as to registration of a Victorian Judgment under Reciprocal Enforcement of

Judgments Act 1934]

Introduction

[1]      The  applicant  applies  without  notice  for  an  order  that  a  judgment  be registered under the Reciprocal Enforcement of Judgments Act 1934.

[2]      On 2 December 2011 Landmark Operations Ltd obtained a judgment against

Nicola Joanna Borst and Cornelis Jacobus Borst from the County Court of Victoria

LANDMARK OPERATIONS LIMITED (ACN 008 743 217) V BORST HC TIM CIV-2012-476-000155 [14

May 2012]

in the sum of $251,845.95 plus interest of $10,867.33 and costs of $2,165.74.  All sums referred to are in Australian currency.

[3]      As a matter of the law of Victoria interest accrues on the judgment sum at

10.5 per cent per annum.

[4]      The evidence filed on behalf of the judgment creditor establishes that, in the absence of any payment received from the judgment debtors, interest accrued up until the date of the application in this case (27 March 2012) so that the judgment interest now payable is –

108 days at A$76.20 per day (calculated as 10.5 per cent of $264,879.02) =

$A8,229.60.

The jurisdiction

[5]      Part  1  of  the  Act  deals  with  the  reciprocal  enforcement  of  judgments generally.

[6]      Section 3A of the Act applies to the judgments of certain inferior Courts.  By the Reciprocal Enforcement of Judgments (Australian Inferior Courts) Order 1992, the Governor General has specified the County Court of Victoria as a Court whose money judgments will be accorded substantial reciprocity of treatment.

The application for registration – discussion

[7]      High Court Rule 23.4(1) provides an application for registration must be made by originating application – this has been done in this case.

[8]      Rule 23.4(2) provides that the application may be made without notice to the judgment debtor, in which case the requirement of certification applies – this application has been certified by Mr Nolen as the lawyer acting.

[9]      Rule 23.5 makes provision as to the title and content of the application, the requirements of which have been met in this case.

[10]     Rule 23.6 requires the application to be filed in the Registry in which the defendant would have been required to file the defendant’s statement of defence had the proceeding been commenced by way of a proceeding on the foreign judgment – that has been complied with in this case as the first-named judgment debtor is resident in Oamaru, to which the Timaru Registry is closest.

[11]     Rule  23.7  requires  every  application  to  be  supported  by  one  or  more affidavits – this has been complied with in this case through an affidavit of Ali Yilmaz Dogan, a Victorian solicitor employed by the Victorian law firm which has acted for the judgment creditor.

[12]     Rule 23.8 requires that the foreign judgment, or an authenticated copy of it, must be attached as an exhibit to the affidavit filed in support of the application – this has been complied with in this case with the attachment of an original of the foreign judgment duly authenticated by the Registrar of the County Court.

[13]     Rule 23.9 provides that judicial notice must be taken of the seal which provides verification – in this case I am required to take judicial notice of the seal of the County Court of Victoria.

[14]     Rule  23.10  requires  that  the  supporting  affidavit  evidence  must  include (amongst other things) the rate of interest carried by the judgment by the law of the country under which it is given and the amount of interest that, by that law, will have become due under the judgment up to the time of the application – this has been complied with in this case through reference to the statutory provisions identified above.

[15]     Rule 23.11 identifies matters which the affidavit in support must state to the best  of  the  information  and  belief  of  the  deponent.    Six  specific  matters  are identified.  The deponent has complied with the requirements of statement set out in r 23.11.   In compliance with r 23.11(2) the deponent specifies knowledge through acting for the judgment creditor in seeking the judgment in the County Court of Victoria.

[16]     Rule 23.15(1) requires that the order granting leave to register a judgment must state the period within which an application may be made to set aside the registration and must prohibit enforcement of the judgment until the expiration of the period stated.   By r 23.15(2) the period stated must (unless the Court orders otherwise) be the same as would apply under the general rules for the filing of the statement of defence in a proceeding.  By r 5.47(2)(b) the time for filing a defence is

25 working days.

Outcome

[17]     I am satisfied that the judgment creditor is entitled to obtain registration, pursuant to part 1 of the Reciprocal Enforcement of Judgments Act 1934, of the judgment of the County Court of Victoria.

Orders

[18]     I order that –

(a)      The judgment of the County Court of Victoria dated 2 December 2011 be  registered   with   effect   from   the  date  when   the  originating application was filed, namely 27 March 2012.

(b)Any  application  to  set  aside  the  registration  shall  be  made  by  a particular judgment debtor within 25 working days after the date of service of the notice of registration upon that judgment debtor.

(c)      Enforcement of the judgment is prohibited until after the expiration of the periods stated in the preceding paragraph.

(d)      The costs of the application are reserved.

Solicitors:

Lowndes Associates – James Nolen - Email [email protected]