Mudajaya Corporation Berhad v Keng

[2024] NZHC 3996

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2024-454-102

[2024] NZHC 3996

IN THE MATTER

of The Reciprocal Enforcement of Judgments Act 1934

AND

IN THE MATTER

of a Judgment of the High Court of Malaya at Shah Alam, Malaysia

BETWEEN

MUDAJAYA CORPORATION BERHAD

Applicant

AND

MICHAEL CHUA KHIAN KENG

First Respondent

AND

TAN KAH LUAN

Second Respondent

On the Papers
Counsel:	M H L Morrison, H Lanham and C Fraser for Applicant
Judgment:	20 December 2024

JUDGMENT OF RADICH J

[1]                Mudajaya Corporation Berhad (Mudajaya) is the judgment creditor in a proceeding in the High Court of Malaya. It has applied without notice for registration of a foreign judgment under the Reciprocal Enforcement of Judgments Act 1934 and Subpart 1 of Part 23 of the High Court Rules 2016.

Background

[2]                In support of the application, Mudajaya has filed an affidavit of James Wong Tet Foh, a director of Mudajaya and the Executive Chairman of its holding company.

MUDAJAYA CORPORATION BERHAD v KENG & ANOR [2024] NZHC 3996 [20 December 2024]

[3]                Attached to Mr Foh’s affidavit is a certified copy of a sealed judgment entered for Mudajaya against the respondents in this proceeding, Michael Chua Khian Keng and Tan Kah Luan, as well as one other party—Yeo Siok Boi, Mr Chua’s mother (known as Madam Yeo). The judgment is dated 7 June 2024 in the High Court of Malaya at Shah Alam and made orders that the respondents and Madam Yeo are jointly and severally liable for the sum of RM43,547,282.19, interest on the sum, and costs of RM500,000. The 7 June 2024 judgment is a results judgment. Also attached to  Mr Foh’s affidavit is a certified copy of the reasons judgment dated 29 July 2024.

[4]                Mudajaya seeks to register only parts of the 7 June 2024 judgment as they relate to money claims against the respondents, not against Madam Yeo. The parts of the judgment it wishes to register are:

(a)Paragraph (1) against the judgment debtors (Mr Chua and Ms Tan), finding them jointly and severally liable to pay the Judgment Sum (RM43,547,282.19) to Mudajaya.

(b)Paragraph (2) awarding interest to Mudajaya on the Judgment Sum at the rate of 5% per annum from the date of the Malaysian Judgment (7 June 2024) until the date of full and final settlement.

(c)Paragraph (3) against the judgment debtors (Mr Chua and Ms Tan), finding them jointly and severally liable to pay legal costs of RM500,000.00 to Mudajaya.

[5]                Mudajaya does not wish to register the following aspects of the 7 June judgment:

(a)Paragraph (1) in so far as it also determines the liability of Yeo Siok Boi (Madam Yeo);

(b)Paragraph (2) in so far as it also determines the liability of Yeo Siok Boi (Madam Yeo);

(c)Paragraph (3) in so far as it also determines the liability of Yeo Siok Boi (Madam Yeo);

(d)Paragraph (4) concerning the dismissal of the counterclaim against the judgment creditor;

(e)Paragraph (5) concerning the extension of freezing orders earlier granted against the judgment creditors.

[6]                An appeal against the 7 June and 29 July judgments has been lodged by the defendants in that proceeding, who include the respondents in this proceeding.

Mudajaya has lodged a cross-appeal. A date for the hearing of both matters is yet to be scheduled. However, the defendants in the High Court of Malaya proceeding have not, as of the date of the filing of this proceeding, applied in Malaysia for a stay of execution of the 7 June 2024 judgment.

[7]                Certified copies of the judgments have been provided in Malaysian and English.1 In addition, Mudajaya has provided an affidavit in support of its application from an expert translator with 45 years’ experience in translating Malay and Indonesian to English. He confirms the accuracy of the English translations.

Discussion

[8]                The Reciprocal Enforcement of Judgments Act applies to decisions of senior courts of Malaya, where the judgment is final and conclusive, is a money judgment, and is given after 1951.2 I accept that the High Court of Malaya is a senior court of Malaysia. While an appeal is pending against the 7 June 2024 judgment, it may still be deemed as final and conclusive.3 Accordingly, the application falls under s 4 of the Reciprocal Enforcement of Judgments Act. A judgment cannot be registered if at the date of the application it has been wholly satisfied, or it could not be enforced in the country of the original court. Courts will not register a judgment if it is liable to be set aside on application under s 6 of the Act.4

[9]                The application must also meet the requirements of Pt 23 of the High Court Under r 23.4 of the High Court Rules, an application for registration must be made by originating application and may be made without notice to the judgment debtor.

[10]            Mr Foh in his affidavit deposes that the judgment is enforceable in the High Court of Malaya, notwithstanding the pending appeal, and that the judgment has not been satisfied. I am satisfied of those matters.

1      The High Court of Malaya has provided an internally-generated English translation.

2      Reciprocal Enforcement of Judgments Act 1934, s 3(3); and Reciprocal Enforcement of Judgments Order 1951 (SR 1951/12). I observe that the Order in Council refers to the Federation of Malaya, which is now Malaysia.

3      Section 3(4).

4      This is to avoid the judgment debtor needing to bring a later application to set the registration aside: see Dymock v Bilbie (1999) 13 PRNZ 158.

[11]            Mr Foh deposes also that, if the judgment were registered, the registration would not be liable to be set aside under s 6 of the Act. I am satisfied of that also, despite the history of this application which I come on to explain.

[12]            The judgment creditor has applied previously to register an earlier judgment of the High Court of Malaya against the judgment debtors, which was obtained in default of defence. The application was accompanied by a without notice application for freezing orders, which were granted. Following service, Mr Chua applied to the High Court of Malaya to set aside the default judgment and applied to the Auckland High Court to rescind the freezing orders.

[13]            On 21 June 2019, Fitzgerald J granted the application to rescind the freezing orders.5 She did so on the basis that the judgment creditor did not have a tenable argument that the default judgment would not be set aside under s 6(1)(c) of the Act. That finding was made on the basis that the judgment had been obtained in default, contrary to the requirement of s 6(1)(c) that judgment debtors are actually served with proceedings in the foreign jurisdiction.6 Justice Fitzgerald rejected the other grounds of the application.

[14]            The concerns that underpinned Fitzgerald J’s decision no longer apply.  The  7 June 2004 judgment was decided after full argument spanning 70 sitting days. The judgment debtors were represented and participated fully in the proceeding. As a result, I am satisfied the judgment is not liable to be set aside on application by the judgment debtors, although they will be entitled to bring such an application following registration.

[15]            I am otherwise satisfied that the requirements of Part 23 of the High Court Rules are met.

5      Mudajaya Corporation Berhad v Keng [2019] NZHC 1436.

6      At [72]–[111].

Orders

[16]I make orders that:

(a)The judgment of  the  High  Court  of  Malaya  at  Shah  Alam  dated 7 June 2024, in the matter of Civil Suit No: BA_22NCvC-53-02/2018 between the parties named in this proceeding (Malaysian Judgment), excluding those paragraphs listed in the annexure to this order, be registered under the Reciprocal Enforcement of Judgments Act 1934 (Registration).

(b)The Malaysian Judgment be registered in the currency in which it is expressed, namely Malaysian Ringgit, with the principal judgment sums, for which the judgment debtors (the respondents in this proceeding) are jointly and severally liable to the judgment creditor, being:

(i)the sum of RM43,547,282.19 (the Judgment Sum);

(ii)interest on the Judgment Sum at the rate of interest carried by the judgment by the law of Malaysia, being 5% per annum from the date of judgment until the date of full and final settlement of Judgment Sum. The amount of interest which, by that law, has become due up to the time of this order is RM948,495.42; and

(iii)costs of RM500,000.

(c)The first and second respondents meet the costs of RM20,316 in obtaining a certified copy of the judgment from the original High Court of Malaya at Shah Alam.

(d)The first and second respondents meet the costs of this application on a court scale 2B basis including disbursements.

(e)An application may be made to set aside the registration within the period of whichever is the later of 25 working days after the day on which notice of registration is  served on the judgment debtors, or     1 March 2024 (the Period). The registered Malaysian Judgment cannot be enforced until after the expiration of the Period.

Radich J

Solicitors:

Morrison Partners, Auckland for Applicant