Michael Wilson & Partners Limited v Sinclair

[2016] NZHC 3050

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV 2014-485-11444

[2016] NZHC 3050

IN THE MATTER OF

section 56 of the Judicature Act 1908

AND

IN THE MATTER OF

judgments of the Bahamian Court of Appeal and the Supreme Court and Judicial Committee of the Privy Council between the applicant and respondent named below

BETWEEN

MICHAEL WILSON & PARTNERS LIMITED

Applicant

AND

THOMAS IAN SINCLAIR

Respondent

On the papers
Counsel:	K P Sullivan for the applicant P Brinsley for the respondent
Judgment:	14 December 2016

JUDGMENT OF MALLON J

[1]                  The background to this matter is set out in my judgment delivered on 29 April 2016.1 The applicant successfully appealed that judgment,2 with the Court of Appeal remitting the matter back to me to determine whether the applicant has now filed a sufficient memorial to satisfy the requirements of s 56(3) of the Judicature Act 1908.

1      Michael Wilson & Partners Limited v Sinclair [2016] NZHC 835.

2      Michael Wilson & Partners Limited v Sinclair [2016] NZCA 376, [2016] NZAR 1186.

MICHAEL WILSON & PARTNERS LIMITED v SINCLAIR [2016] NZHC 3050 [14 December 2016]

[2]                  An amended memorial was received and submissions provided by the parties. As at 3 October 2016 the outstanding issues were that appendices F and G in the memorial were photocopies, whether the amount in respect of which execution should issue should be reduced by US$5,000, and whether execution on the relevant judgments making up the memorial could include interest on those judgment. Further submissions were received responding to these issues.

[3]                  The appendix at F is effectively a copy of the appendix at D. Appendix D is appropriately certified. Appendix G has an original stamp of the Supreme Court of the Bahamas. Accordingly there is no longer any issue about the photocopies. Mr Sinclair does not suggest any of the amounts claimed are incorrect.

[4]                  The applicant has explained that the US$5,000 plus any interest accrued, if it has not been paid at the time of enforcement, will be taken into account. The applicant has given an undertaking to this effect. He will recover no more than is owing at the time of enforcement.

[5]                  The applicant has provided detailed submissions supporting the claim for interest. I have considered those submissions and the supporting case law relied on.  I accept the interest is properly claimable and the respondent does not contend otherwise.

[6]                  After submissions were received on these matters, my attention was drawn to an order for registration of a judgment in favour of Mr Emmott. As explained in my 29 April 2016 judgment, Mr Emmott is associated with Mr Sinclair in the global litigation which has ensued following Mr Emmott’s departure from the applicant firm.

[7]                  Following my query about Mr Emmott’s judgment, the applicant has explained that Mr Emmott seeks to enforce the judgment against the applicant in New Zealand, so that when the applicant obtains its order to enforce its judgment against Mr Sinclair’s New Zealand property, Mr Emmott will seek to have the judgment sum paid to him. Mr Emmott has said in an affidavit, prepared for the purposes of the Court of Appeal hearing (referred to in [1] above), that he then intends to pay that money back to Mr Sinclair. This is because Mr Sinclair paid Mr Emmott’s legal fees for the

arbitration that took place in England (for which there is now an order for registration of the judgment in this country). The applicant challenges Mr Emmott’s right to intervene in its enforcement action against Mr Sinclair’s New Zealand property.

[8]                  In short, the extensive litigation and counter-litigation between these parties continues. However neither Mr Sinclair nor Mr Emmott contend these latest events provide any basis to resist the order under s 56(3) of the Judicature Act.

[9]                  Accordingly, I find the second amended and updated memorial of judgments of courts in the Bahamas and in England and Wales dated 27 September 2016 meets the requirements under s 56(3) of the Judicature Act and I make an order accordingly. The amounts are as set out at paragraph 28 of that memorial.

Mallon J