Mudajaya Corporation Berhad v Keng
[2019] NZHC 1436
•21 June 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-281
[2019] NZHC 1436
IN THE MATTER of the Reciprocal Enforcements of Judgments Act 1934 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
TAN KAH LUAN
Second Respondent
……………………………/continued
Hearing: 27 May 2019; further submissions 19 and 20 June 2019 Counsel:
BD Gray QC, MHL Morrison and HMZ Ford for applicant
RJ Hollyman QC and AJB Holmes for first to fifth respondents
Judgment:
21 June 2019
JUDGMENT OF FITZGERALD J
[As to variation/discharge of freezing and charging orders]
This judgment was delivered by me on 21 June 2019 at 10:30am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Morrison Mallett, Auckland
Loo & Koo, Auckland (K Koo)
To: JR Billington QC, Auckland
Mudajaya Corporation Berhad v Chua [2019] NZHC 1436 [21 June 2019]
Respondents continued
CRUX INTERNATIONAL LIMITED
Non-Party/Third RespondentMIKE MOTORSPORT LIMITED
Fourth Respondent
MIKE RACING LIMITED
Fifth RespondentCONTENTS
Introduction [1]
Factual background – more detail
Events in Malaysia 2015 to 2018 [6]
The Malaysian Judgment[11]
Mr Chua is located in New Zealand [13]
The without notice application for freezing and other orders[14]The application to vary or rescind the Freezing Orders [17]
Approach to the application [18]
Was there material non-disclosure justifying the Freezing Orders being set aside?
Legal principles [25]
Discussion [26]
An alleged defence of duress [27]
That Mr Chua and his family had settled in New Zealand [42]
After the event insertion of RM 65 million into PTAs [45]
Non-disclosure or misstatement regarding efforts to serve the Malaysian
Proceedings [51]
Is there a good arguable case that the Malaysian Judgment will be registered in New Zealand?
Introduction [60]
Default judgment obtained by fraud [61]
Enforcement of the judgment would be contrary to public policy [69]
No notice was given to enable the judgment debtors to defend the
proceedings [72]
Discussion [85]
Is there a real risk of dissipation of assets? [112]
Legal principles [113]
Discussion [116]
Mudajaya’s administration of the Freezing Orders [123]
Result [130]
Costs [132]
Introduction
[1] The applicant (Mudajaya) is a large public corporation in Malaysia. It says that over the period 2012-2013, one of its employees, the first respondent (Mr Chua), defrauded it of some RM 72 million.1 This is said to have included the receipt of “secret profits”, or bribes, from three subcontractors on a major construction project then being carried out in Malaysia. Mudajaya’s case is that Mr Chua arranged for payments and benefits totalling this amount to be paid to him and, on his instructions, to a Malaysian company associated with him (Nescaya) and/or a Malaysian company controlled by his brother (Inner Cube).
[2] Mudajaya says when it confronted Mr Chua with these allegations, he admitted them (though initially disputed the amount of money involved). Ultimately, however, Mudajaya says Mr Chua agreed that he owed the company RM 65 million and in part satisfaction of that debt, agreed to transfer all or at least most of his property to Mudajaya. Shortly after these arrangements were entered into, but without Mudajaya’s knowledge, Mr Chua and his immediate family moved to New Zealand. Mudajaya thereafter obtained judgment against Mr Chua (and members of his family) for what it says is the net amount still owing to it by Mr Chua. As Mr Chua was not living in Malaysia at that time, orders for substituted service were obtained and judgment ultimately entered by default (the Malaysian Judgment).
[3] Mudajaya has now filed an application to register the Malaysian Judgment here in New Zealand, given it has since become aware of Mr Chua’s presence in this jurisdiction. In February 2019, it also applied on a without notice basis for freezing and ancillary orders in anticipation of the Malaysian Judgment being registered. I heard that application on an urgent basis as Duty Judge. I granted the orders, though with some modifications (the Freezing Orders).
[4] The respondents have since applied to rescind or vary the Freezing Orders. It is that application which this judgment determines.
1 Approximately NZD 26.5 million at current exchange rates.
[5] The respondents say the Freezing Orders should be rescinded or varied because of what they say was material non-disclosure on the without notice application. The respondents also say Mudajaya does not have a good arguable case to register the Malaysian Judgment in New Zealand in any event, and there is no real risk of dissipation of assets.
Factual background – more detail
Events in Malaysia 2015 to 2018
[6] Mudajaya says that in early March 2015, in a series of three meetings with senior executives of the company, Mr Chua admitted his involvement in the receipt of the secret payments referred to at [1] above. It says Mr Chua also agreed over the course of the meetings that he was indebted to Mudajaya in the sum of RM 65 million and agreed to transfer all property and assets then owned by him (and some family members) in part satisfaction of the debt. Mudajaya says Mr Chua and other members of his family also agreed to hold all existing and future assets on trust for Mudajaya towards satisfaction of the debt.
[7] As a result of the three meetings, Mr Chua, his wife (the second respondent, Ms Tan) and Mr Chua’s mother (Madame Yeo) signed a series of “Property Transfer Agreements” (PTAs), in which they acknowledged a debt owing to Mudajaya of RM 65 million and transferred various properties to Mudajaya in part satisfaction of it.
[8] Mudajaya says Mr Chua and his immediate family then fled Malaysia in September 2015 (though Mudajaya says it was not aware of this at the time). Mr Chua and his family came to live in New Zealand. In the meantime, Mudajaya had reported matters to the Malaysian Police. It seems that, over the ensuing years, the Police could not locate Mr Chua.2
[9] In February 2018, Mudajaya commenced civil proceedings in the High Court of Malaysia at Shah Alam against Mr Chua, his wife and other family members (the Malaysian Proceedings). The statement of claim sought recovery through various
2 There is no evidence of what steps the Police took in this regard.
causes of action of RM 55.75 million,3 being the total amount of the estimated fraud less recoveries from transfers of various properties and cash repayments totalling some RM 16.44 million. The claim also sought an inquiry as to any assets owned by the defendants to those proceedings which had been funded by the secret profits, as well as a declaration of trust over any such assets.
[10] Given Mudajaya did not then know Mr Chua’s whereabouts, it applied for and was granted orders for substituted service. This was effected by the placement of advertisements in two newspapers in Malaysian states in which Mr Chua was known to have lived, and by posting notice of the proceedings on the Court’s public noticeboard.
The Malaysian Judgment
[11] The defendants to the Malaysian Proceedings took no steps to defend the proceedings. Mudajaya accordingly applied for judgment in default of defence, the application being heard in Chambers before a Judge of the High Court of Malaysia on 9 August 2018. Mudajaya filed submissions in advance. On 18 September 2018, the application for judgment in default of defence was granted. Written reasons were not provided, but the Court sealed draft orders which had been filed with the application.
[12] Those sealed orders are reflected in a formal judgment dated 18 September 2018 (i.e. the Malaysian Judgment). Relevantly for current purposes, the Malaysian Judgment contains orders that:
(a)Mr Chua pay Mudajaya the sum of approximately RM 55.75 million;
(b)Ms Tan pay Mudajaya the sum of RM 39.9 million;
(c)there be an inquiry into what assets Mr Chua and Ms Tan acquired out of the proceeds of the secret profits and/or the sum of RM
55.75 million; and
3 Approximately NZD 20.5 million at current exchange rates.
(d)all moveable assets that consequent upon the inquiry into assets were deemed to be held by Mr Chua and Ms Tan as constructive trustees be delivered up to Mudajaya.
Mr Chua is located in New Zealand
[13] In an affidavit filed in support of the without notice application, the Managing Director and Chief Executive Officer of Mudajaya (Mr James Wong) said that after the Malaysian Judgment had been obtained, and frustrated with progress by the Police, he took steps himself to try to locate Mr Chua. Knowing that Mr Chua had an interest in motor racing, he looked online for connections between Mr Chua and that sport. Eventually, he found references to Mr Chua and companies associated with him in a racing context (and engaged in the sale and purchase of exotic vehicles) in Palmerston North.4 Private investigators were instructed who, among other steps, made contact with Mr Chua, posing as intermediaries for potential purchasers of vehicles from Mr Chua’s business. Mr Wong then identified Mr Chua through photographic evidence obtained by the private investigators. The investigations revealed that Mr Chua’s company, Crux, owned a commercial property in New Zealand and that Mr Chua and Ms Tan own a residential property.
The without notice application for freezing and other orders
[14] On 20 February 2019, Mudajaya applied on a without notice basis for registration of the Malaysian Judgment (the Registration Application) and for interim freezing, charging and ancillary orders, and orders as to substituted service (the Freezing Orders Application).
[15] As it happens, I was Duty Judge that week and the applications came before me. Only the Freezing Orders Application was pursued at that time.5 It was accompanied by a voluminous amount of material in support, and was requested to be dealt with on an urgent basis, given the sale of the property owned by Crux was due
4 Mr Chua’s business of trading exotic vehicles is conducted through a New Zealand company named Crux International Ltd (Crux) ie. the third respondent.
5 There is no dispute freezing orders can be sought and made in support of a prospective registration of a foreign judgment; see R Osborne and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR32.2.01] and r 32.5(1)(a)(ii).
to settle the following business day. Having reviewed the papers, I convened an urgent hearing and heard further submissions from senior counsel for Mudajaya.6 At the conclusion of the hearing, I made the orders as sought, though with some drafting amendments, and also to include provision for payment of living expenses, legal fees relating to the Freezing Orders and day-to-day disposal of assets or payment of business expenses incurred in the ordinary course of Crux’s business. I also ordered that Mudajaya deposit $100,000 into its New Zealand solicitors’ trust account as security for its undertaking as to damages. I directed that the Freezing Orders would expire within a week’s time unless renewed at that point, and reserved leave for the matter to be brought back for the Court on 24 hours’ notice.
[16] The Freezing Orders were subsequently extended over the ensuing weeks by way of Court minutes, i.e. rather than as a result of an “on notice” hearing of the without notice application.
The application to vary or rescind the Freezing Orders
[17] On 25 March 2019, the respondents applied to vary or discharge the Freezing Orders. A variety of grounds were set out in the application itself, though by the time of the hearing before me on 27 May 2019, the respondents’ case boiled down to four key propositions:
(a)First, there had been material non-disclosure and misstatement in the without notice application, including, most significantly:7
(i)That the alleged admissions by Mr Chua to having been involved in the receipt of secret profits were obtained as a result of threats of violence, such that there was a failure to disclose Mr Chua had an available defence of duress.8
6 At that hearing, Mr Billington QC.
7 Counsel for the respondents acknowledge there is no evidence Mudajaya’s New Zealand legal advisers were aware of the matters said to give rise to material non-disclosure.
8 The alleged threats are referenced in audio recordings of the meetings with Mr Chua in March 2015. The transcript of one of those meetings, held on 3 March 2015, was produced on the without notice application. The threats are said to have largely been made in the second meeting, held on 11 March 2015. Neither the transcript nor the audio of that meeting was produced on the without notice application.
(ii)That the figure of RM 65 million included in the PTAs as the amount acknowledged to be owing to Mudajaya had been filled in by Mudajaya after Mr Chua (and other family members) had signed the PTAs.9
(b)Second, that Mudajaya does not have a good arguable case to register the Malaysian Judgment in New Zealand, given:
(i)the Malaysian Judgment was obtained by fraud;10
(ii)the threats of violence which gave rise to the admissions, meaning enforcement of the Malaysian Judgment would be contrary to public policy;11 and
(iii)there is no evidence the defendants to the Malaysian Judgment had actual notice of the Malaysian Proceedings before judgment was entered, the absence of such notice requiring the registration of a foreign judgment in New Zealand to be set aside.12
(c)Third, on the evidence now before the Court, there is no real risk of dissipation of assets; rather there is simply evidence of a family now well-settled in New Zealand and going about their day-to-day business.
(d)Fourth, Mudajaya has refused to cooperate in the proper administration of the Freezing Orders, in particular preventing the respondents from operating their businesses and from paying day-to-day living expenses.13
9 See [51] below addressing other aspects of alleged material non-disclosure.
10 Reciprocal Enforcement of Judgement Act 1934, s 6(1)(d).
11 Section 6(1)(e).
12 Section 6(1)(c).
13 Mr Hollyman QC, senior counsel for the respondents, confirmed that this ground is relied on in a “supporting” role only, and acknowledged that it would not alone justify setting aside the Freezing Orders.
Approach to the application
[18] Where freezing orders have been obtained on a without notice basis, the applicant who applied for those orders carries the onus of proof at the with notice hearing of satisfying the Court that the orders should be continued or renewed.14
[19] Strictly, there has not been a “with notice” hearing of Mudajaya’s without notice application. Rather, the respondents have filed their own application to rescind or vary the Freezing Orders. Nevertheless, the 27 May hearing was the first time both parties were able to engage on the matters before the Court. I therefore proceed on the basis that the onus rests on Mudajaya to, in effect, justify the continuation of the orders it obtained on a without notice basis. I note the same approach was adopted by Asher J in Fortune Mile International Ltd v Judge on an application to rescind freezing orders obtained on a without notice basis, which followed the granting of orders on a without notice basis and in the absence of an “on notice” hearing.15
[20] Further, an application to rescind or vary orders made without notice proceeds on a de novo basis.16 In Allen v Commissioner of Inland Revenue, William Young J, delivering the judgment of the Court of Appeal, stated:17
The Mareva injunction was obtained ex parte. Consequently there was a requirement on the part of the Commissioner to make appropriate disclosure: see for instance Brink’s – MAT Ltd v Elcombe [1988] 3 All ER 188. No doubt a plaintiff who fails to make appropriate disclosure is at risk of adverse consequences which may, perhaps, extend to the discharge of the order inappropriately obtained (albeit that if the order was otherwise warranted, a further order is likely to be made, as in the Brings – MAT case). But, given there is an entitlement to seek review of orders made ex parte and such review proceeds on a de novo basis, the power to discharge an ex parte order on this ground is likely to be exercised only in egregious cases.
[Emphasis added]
[21] Mr Hollyman QC accepts that if I were satisfied there was material non- disclosure in this case, the conventional approach would be to review the without
14 High Court Rules 2016, r 32.7(3).
15 Fortune Mile International Ltd v Judge [2014] NZHC 3146 at [15].
16 Euro-National Corporation Ltd v Petricevic Financial Services Ltd (1989) 2 PRNZ 351 at 354. See also Shen v An Ying Group Ltd (2006) 3 NZCCLR 35 at [75]; Ilion Technology Corporation v Johannick HC Auckland, CIV-2004-404-3358, 17 August 2004, at [8].
17 Allen v Commissioner of Inland Revenue (2004) 21 NZTC 18,718 at [93].
notice orders de novo.18 But as noted above, that is the approach to be taken with an application to rescind or vary orders made on a without notice basis in any event. In that way, the respondents’ approach is somewhat circular; save where any accepted non-disclosure is considered egregious, the end point is a de novo review irrespective of whether there was material non-disclosure.
[22] The key question is accordingly whether, having reviewed the evidence afresh, Mudajaya has satisfied the Court both that it has a “good arguable case” on its claim, and that there is a real risk of the respondents dissipating their assets in the absence of the Freezing Orders. A “good arguable case” is established if the allegations in the proposed claim are capable of tenable argument and are supported by sufficient evidence, bearing in mind the early stage at which the application is likely to be brought.19
[23] Whether Mudajaya has a “good arguable case” therefore requires it to have a tenable argument, supported by sufficient evidence, that the Malaysian Judgment will be registered in New Zealand and not set aside. An alternative way of putting the proposition is whether the evidence and argument now before the Court means it is no longer arguable the Malaysian Judgment will either be registered here or survive an application to set aside. It is also important that unless it is clear Mudajaya’s claim is untenable, I should not pre-judge matters which are properly the domain of an application to register the Malaysian Judgment and any subsequent application to set it aside.
[24] The alleged material non-disclosure was the focus of the respondents’ arguments on their application. I therefore consider these issues first. I accept that if there was egregious non-disclosure, setting aside the orders would be justified (i.e. without going on to consider the merits of the case and whether “new” orders should be made). I also accept that if any non-disclosure does not reach that threshold, the Court’s findings may nevertheless be relevant to matters such as costs.
18 See, for example, Yu v Xian [2019] NZHC 787 at [30].
19 Hannay v Mount [2011] NZCA 530 at [22].
Was there material non-disclosure justifying the Freezing Orders being set aside?
Legal principles
[25]McGechan on Procedure summarises the duty to disclose as follows:20
(a)It is the applicant’s duty to make a full and fair disclosure of material facts.
(b)Materiality as determined by the court is the test.
(c)The applicant has a duty to make all proper inquiries. Correct disclosure includes additional facts that would have been known had the applicant made inquiries. This includes possible defences.
(d)The extent of proper inquiry depends on the circumstances of the case including: nature of the applicant’s case; nature of probable effects of the order on the respondent; and degree of legitimate urgency and time available for making inquiries.
(e)A court should deprive a non-disclosing applicant of any advantage gained from the order.
(f)Consideration of whether a discharge should be made immediately depends on the importance of the undisclosed fact.
(g)The court has a discretion not to discharge a particular order because of non-disclosure…
(h)Non-disclosure will ordinarily prompt the court to review ex parte orders de novo…
(i)Applicants should take extra care to ensure that the information they present to the court is up to date and accurate…
[Citations omitted]
Discussion
[26] Four particular aspects of material non-disclosure are alleged. I will address each in turn.
20 R Osborne and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR32.2.04(2)].
An alleged defence of duress
[27] This was the aspect of non-disclosure on which the respondents place greatest emphasis, it being described in the written submissions as “extraordinary” non- disclosure.
[28] Rule 32.2(3)(a) requires disclosure by an applicant for freezing orders on a without notice basis of “any possible defences known to the applicant”. Mudajaya’s submissions on the without notice application did raise potential defences, but none of duress.
[29] The respondents say there is a potential defence of duress based on “threats” made to Mr Chua in the course of the three meetings in March 2015. The alleged threats are that:
(a)One of the executives at a meeting with Mr Chua on 11 March 2015 stated to Mr Chua:
You surrender what you think you can, I got the numbers, if your numbers is not right. I won't negotiate. I'm not here to negotiate ... If I go, I won't only go after you ... Just the Nescaya alone ah, you and your wife can go in. Children very young. They have lawyers at their back. They have authorities already at the back. It just that whether we pull the trigger or not.
(b)That the same executive at the same meeting said:
You show me the proof of the money. How the money flow. Maybe I can ... Evidence, where the cheque cut. Where it go to. That's why I said, help me. I help you. (In Cantonese: If not, I'll let. the police deal with you. Brother you will…
If not, I'll let the police ask you. Brother. Beat you until crazy. You know how they work inside? If not I tell you I'll give them some incentive, they will beat you until crazy. They won't sit down nicely like us and talk to you.
[30] Only the transcript of a 3 March 2015 meeting was produced on the without notice application. In response to the application to rescind and/or vary the Freezing Orders, the transcripts of the 11 and 16 March 2015 meetings were produced by Mudajaya. The italicized text cited above was omitted from the transcript of the
11 March 2015 meeting.21 The transcripts and the audio recording were, however, produced by Mudajaya to the Malaysian Court on Mr Chua’s application to set aside the Malaysian Judgment. Having received the audio in that way, Mr Chua then raised in this application the text that was not transcribed.
[31] I am satisfied on the evidence currently before the Court that there was nothing sinister or deliberate on Mudajaya’s part in these aspects of the transcripts not being before the Court.22 Mr Wong for Mudajaya has deposed that the audio recordings were sent to Mudajaya’s lawyers in Malaysia for transcribing, and there were no instructions not to transcribe the recordings verbatim. Further, a deliberate attempt to conceal the italicised text would be inconsistent with the audio recordings having been produced to the Malaysian Court. There are also several other aspects of the audio recordings which are missing in the transcripts, presumably because those transcribing the audio recordings could not hear or did not understand what was being said. Some of what are described as threats are said in Cantonese (though I note some other aspects of discussion in Cantonese have been transcribed).
[32] Nevertheless, the fact remains that the text described as threats was not disclosed on the without notice application. It would have been preferable for all three transcripts to have been produced on the without notice application and for a more comprehensive transcription to have been carried out. Despite that, however, I do not consider the gaps in the transcripts now relied on by Mr Chua would, in and of themselves, have been of sufficient importance to constitute a material non-disclosure justifying the orders being set aside. Rather, the real issue is whether, as a result of those matters not being included in the transcripts, there was a failure to disclose an available or potential defence of duress which, as required by r 32.2, was “known to the applicant”.
[33] Mr Chua’s suggestion that he only entered into the PTAs as a result of coercion was not something raised by him at the time. In particular, there was no suggestion
21 This was not the only omission; there were a range of other omissions and transcription errors, as might be expected when transcribing what are obviously not particularly clear audio recordings.
22 The “innocence” or otherwise of the non-disclosure is an important but not decisive consideration in assessing whether without notice orders ought to be discharged without examining the merits: Brinks Mat Ltd v Elcombe [1988] 1 WLR 1350 (CA) at 1357.
either immediately after the threats were said to have been made, or at any time prior to Mr Chua having notice of the Freezing Orders, that Mr Chua expressly denied being involved in the receipt of secret profits and only entered into the PTAs as a result of duress. The scenario is accordingly different to the situation where, for example, there has been a clear statement made by a respondent, prior to a without notice application being made, challenging the applicant’s claims and setting out the basis for that challenge.23
[34] The aspects of the transcript not disclosed make up an extremely small part of the three lengthy meetings. Further, having reviewed the entirety of all three transcripts, I consider there to be a good arguable case (in the sense described at [22]-
[23] above) that Mr Chua was involved in the receiving of and sharing in secret profits, and that his “admissions” and entry into the PTAs were not influenced by duress. In particular, and despite the alleged threats made during the 11 March 2015 interview:
(a)the overall tone of the interview does not appear threatening;
(b)as noted, the alleged threats are a very small part of a lengthy discussion;
(c)Mr Chua’s overall response is to be appreciative that Mudajaya is giving him a chance;
(d)Mr Chua appears to accept that some money has flowed into Nescaya and Inner Cube;
(e)Mr Chua has invested in property, cars and a car racing business (which appears to have been losing money);
(f)Mr Chua wants to settle matters (to “pay back”) and get on with his life; and
23 As in EA v Rennie Cox Lawyers [2018] NZCA 33 at [43], where the Court of Appeal stated that it was “inexcusable” that the Judge dealing with the without notice application was not made aware of earlier correspondence from the respondent’s solicitors confirming that the applicant’s claim was disputed and the grounds of that dispute.
(g)on 16 March 2015, Mr Chua stated “personally I appreciate you guys still want to talk to me and all that”.
[35] A key issue from Mr Chua’s perspective throughout the meetings appears to be a desire to identify a correct figure for the money being discussed and thus what he will seek to “pay back”. At least on the face of the entirety of transcripts, including the missing text of which Mr Chua now complains, I am doubtful there was a “possible defence known to [Mudajaya]” which it failed to disclose.
[36] In any event, had all three transcripts been before the Court on the without notice application, and included the extracts upon which Mr Chua now places reliance, for the reasons set out at [34] above, they would not have made a material difference to the outcome of the without notice application. In other words, reviewing the evidence afresh, I do not consider it alters the conclusion that there is a good arguable case that Mr Chua has been involved in the receipt of secret profits while in employment at Mudajaya.
[37] There is also no clear explanation by Mr Chua (or his wife) of how they came to fund what on any view was a substantial property portfolio in Malaysia, as well as a racing car business. In the context of complaining that the recoveries to date by Mudajaya do not reflect the full value of the properties transferred under the PTAs, Mr Chua states that even allowing for amounts secured by mortgages, the properties’ value in 2015 was some RM 33 million, or NZD 12 million. This excludes the racing car business, which Mr Chua says Mudajaya knew about but did not insist he transfer (and which he later transferred to New Zealand). Mr Chua, in his list of assets, also discloses substantial loans made by him to both Crux and a trust, with each loan exceeding NZD 1 million. Again, it is not clear how Mr Chua funded these loans, given Mr Chua’s position that other than the racing car business, all his assets were transferred to Mudajaya under the PTAs.
[38] The most recent evidence is that Mr Chua has now been arrested in Malaysia and charged in relation to misappropriation of property belonging to Mudajaya. It is not clear whether the charges relate to the same conduct complained of by Mudajaya
in these proceedings. The fact such charges have been laid, however, is a further factor contributing to the overall picture.
[39] I wish to make it clear, however, that the above should not be taken to suggest that Mr Chua was involved in the taking and receipt of secret profits while working for Mudajaya. Rather, it simply reflects that on the evidence currently before the Court, there is a tenable argument to that effect.
[40] The respondents further say Mudajaya “over-gilded the lily”24 in its application by misstating the nature of the evidence, and in particular, by claiming that Mr Chua had made admissions of being involved in and receiving the monies now claimed. I accept the submissions filed in support of the without notice application framed the matter as “admissions” having been made. On the present application, counsel for Mudajaya notes that while in the 3 March 2015 meeting, there was no clear positive admission, nor did Mr Chua deny that he had taken money, rather he appeared to seek to downplay the level of his involvement and the amount appeared to be contested. Further, in the 11 March 2015 interview, the transcript records Mr Chua as having stated:
(a)that “everybody tried to siphon” from the project/construction works; he adjusted the piling rates (consistent with Mudajaya’s case that he inflated invoices);25 “the reason here I still sit down here with you because I have nowhere to run”; “3 over million” (sic) went to his company Nescaya; and
(b)“I want to settle this … it’s part of the reason I sit down with you guys here. Of course it’s not that easy just to admit everything”; he wanted to “surrender what I have. What I take”.
[41] Again, for the same reasons noted at [34] above, the overall impression gained from the transcripts is that Mr Chua is accepting of his involvement and seeking
24 A concern noted in Lloyds Bowmaker Ltd v Brittania Arrow Holdings Plc [1988] 1 WLR 1337 (CA) at 1348.
25 I note that there is a factual dispute as to whether the comment “everybody tried to siphon” is attributable to Mr Chua. That is not a conflict I can resolve on the present application.
to come up with ways to make amends. In addition, there is no doubt Mr Chua signed the PTAs agreeing to transfer his property to Mudajaya in part satisfaction of a debt owed by him (irrespective of the amount). There was, therefore, an evidential foundation for the submission of an “admission”.
That Mr Chua and his family had settled in New Zealand
[42] The second alleged non-disclosure is that Mudajaya failed to disclose that Mr Chua and his family were settled in New Zealand.26 Again, I do not consider this to be a material non-disclosure which would justify the Freezing Orders being set aside.
[43] At the time of the without notice application, and in advance of Mr Chua’s affidavit evidence that he and his family have been living in New Zealand since 2015, there is no evidence Mudajaya knew that Mr Chua and his family had left Malaysia in September 2015 or had been in New Zealand permanently since that time. Mudajaya disclosed that the respondents owned property and companies in New Zealand and had been living here, but were at that time overseas and were in the process of selling some assets. That was factually correct, although Mr Chua has now deposed as to what he says are the reasons for assets being sold.
[44] Even if Mudajaya ought to have disclosed (assuming it knew at the time) that Mr Chua was settled in New Zealand, and taking into account the evidence of which I am now aware, I do not consider this provides a basis for discharging the orders. Mr Hollyman submits the alleged non-disclosure directly affects the Court’s consideration of whether there is a risk of dissipation of assets. I disagree. Disclosure that Mr Chua was settled in New Zealand would not mean there was no risk of dissipation. Freezing orders are regularly made on a without notice basis against persons settled in this jurisdiction.
26 Mr Hollyman noted in his oral submissions that the respondents do not rely heavily on this aspect of alleged non-disclosure.
After the event insertion of RM 65 million into PTAs
[45] The third aspect of alleged non-disclosure is a failure to inform the Court that the amount of RM 65 million was not in fact included in the PTAs at the time Mr Chua and his wife signed them, but was only added afterwards.
[46] There is a factual contest between the parties on this issue which it is not possible for the Court to resolve on the application. The threshold of “good arguable case” for freezing orders recognises that disputed questions of fact cannot readily be resolved on affidavit evidence.27
[47] Mudajaya accepts that the amount of the debt owed was left blank in the first four of the PTAs which Mr Chua (and members of his family) signed. But there is evidence from a senior associate at a law firm in Malaysia (Ms Yi), who prepared and arranged the signing of the PTAs, that the fact the debt amount was blank at the time of signing was understood and accepted by Mr Chua. She states that by the time the fifth PTA was signed on 11 May 2015, the amount of RM 65 million had been advised to her by Mudajaya as the debt amount and was included in that document prior to Mr Chua and his mother signing it. Ms Yi also describes the various interactions and meetings she had with Mr Chua to obtain all relevant documents and authorisations to enable the PTAs to be implemented.
[48] Mr Chua’s evidence on the other hand, is that the amount of RM 65 million was not included in any of the PTAs he signed and he only became aware of that amount when he went to collect copies of the documents in June 2015 from Mudajaya’s offices. He says that upon becoming aware that a figure of RM 65 million had been added to the PTAs, he met with senior executives of Mudajaya to dispute the amount. Mudajaya denies such a meeting took place.
[49] It was clearly known to Mudajaya at the time of the without notice application that the debt amount had been left blank in at least some of the PTAs when Mr Chua signed them. However, on the present evidence, Mudajaya’s position remains that
27 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] 1 NZLR 754, [2010] NZCA 502 at [41].
Mr Chua voluntarily acknowledged a debt due and owing of RM 65 million, confirmed by his signature of at least the last PTA in the circumstances described by Ms Yi. Based on the evidence now before the Court, there is an evidential basis to submit that Mr Chua has accepted that amount.
[50] Again, therefore, and considering the evidence now before the Court afresh, I do not consider this aspect of the alleged non-disclosure warrants discharge of the Freezing Orders.
Non-disclosure or misstatement regarding efforts to serve the Malaysian Proceedings
[51] The final alleged material non-disclosure (or perhaps more accurately, misstatement) is Mudajaya’s submission on the without notice application that the respondents evaded all previous efforts to locate and serve them, when Mr Chua and Ms Tan28 say no real attempts were ever made to locate them for the purposes of service.
[52] The without notice application itself said the following about service and efforts to locate Mr Chua and Ms Tan:
(a)“Despite efforts it proved impossible to locate and personally serve the first and second respondents….”
(b)“The first and second respondents appear to have deliberately fled Malaysia in order to avoid the police and frustrate the applicant’s attempts to recover the amounts stolen and enforce the Malaysian judgment.”
(c)“The first respondent has apparently departed New Zealand and the present whereabouts of him and the second respondent is unknown, this being consistent with them also having departed from Malaysia and evaded all previous efforts to locate and serve them.”
28 Being the only respondents who were also defendants to the Malaysian Proceedings.
(d)The respondents’ “evasion of the applicant to date” was one reason stated as justifying the application proceeding without notice.
[53] In terms of the evidence regarding service, Mr Wong said the following in his affidavit in support of the without notice application:
(a)“At the time of issuing the proceedings in Malaysia, none of the defendants could be located at their last known address to effect service. To try and locate them, Mudajaya’s solicitors undertook searches at the National Registration Department to ascertain the defendants’ registered address in Malaysia. However, none of the defendants were residing at the addresses recorded with the National Registration Department”.
(b)“This matter had also been referred to the Malaysian Police to investigate. By 2018, the Police were not able to locate the judgment debtors. I understand the Police issued an arrest warrant for Mr Chua in July 2018 but have yet to find and arrest him.”29
[54] The written submissions filed in support of the without notice application stated:30
(a)The respondents “fled Malaysia”.
(b)At the time of issuing the Malaysian Proceedings, “none of the defendants could be located at their last known address to effect service”.
(c)The first and second respondents “previously absconded from Malaysia to avoid their liabilities” and “may have already absconded from New Zealand”.
29 The evidence now before the Court is that Mr Chua has recently been arrested and charged in Malaysia. See [38] above.
30 These are not the only references, but provide the gist of the submission made.
[55] Mr Chua says in his affidavits filed in support of the application to rescind the Freezing Orders that:
(a)In September and December 2015, he returned voluntarily to Malaysia to meet with Police concerning their investigation. He has provided copies of the relevant entries in his passport and airline tickets confirming his travel to Malaysia at this time.
(b)Mr Chua’s brother and mother (also defendants to the Malaysian Proceedings) moved out of one of the properties transferred to Mudajaya under the PTAs to the house next door, a fact Mudajaya was aware of or could have easily ascertained by simple inquiries.
(c)In 2016, Mr Chua’s mother’s solicitors communicated with Mudajaya’s solicitors.31
(d)In October 2017, Mr Chua received an email from a property manager, which was also copied to Mudajaya’s in-house legal counsel who had been liaising with Mr Chua in 2015 (thus it was aware of his email address).
(e)He would have been readily identified as living in New Zealand from internet searches, given his websites for his car racing business, his active Facebook page and various press items about him in connection with that business.
[56] Given the above, Mr Hollyman submits no real attempt was made to locate and serve Mr Chua and Ms Tan (or the other defendants) with either the Malaysian Proceedings or the Malaysian Judgment, when a number of further steps to effect service could and should have been taken. Mr Hollyman further submits it was a misstatement to suggest that the defendants to the Malaysian Proceedings “evaded” all attempts to serve them, given the only attempt to serve them was a search of last
31 Mr Chua’s mother is also a defendant to the Malaysian Proceedings.
known addresses and the National Registration Department’s records for any new address.
[57] Mr Hollyman is correct that on the without notice application, Mudajaya, at least in its application and submissions, “over gilded the lily” somewhat about Mr Chua and Ms Tan “evading” all efforts to serve them. This infers a level of knowledge on their part both of the Malaysian Proceedings and that efforts were being made to serve them, and suggests they took deliberate steps to avoid such service. On the other hand, the evidence of Mr Wong reflected the actual steps taken to locate Mr Chua, irrespective of whether those steps are considered particularly fulsome or vigorous. Further, it is correct that Mr Chua and his wife did leave Malaysia not long after the alleged fraud was uncovered. Mr Chua has not clearly explained why he left Malaysia and came to New Zealand in September 2015.32
[58] What I accept to be an “over gilding of the lily” in relation to Mr Chua and Ms Tan “evading all efforts” to serve them is not, in my view, a material non- disclosure or misstatement which warrants the Freezing Orders being discharged, at least without going on to consider the matter de novo. Ultimately, the evidence on the without notice application accurately recorded the steps that had been taken to try and locate Mr Chua and Ms Tan in Malaysia. But particularly with applications of this type, brought on an extremely urgent basis and accompanied by very voluminous amounts of paper (which in this case, the Court had only a few hours to review), it is incumbent on applicants and counsel to resist any temptation to “talk up” the facts. I also accept there does not appear to have been a particularly comprehensive effort by Mudajaya to locate Mr Chua prior to or after commencement of the Malaysian Proceedings, when it seems some fairly simple internet searches by the company’s CEO led to him being located in New Zealand.
[59] Overall, however, I do not consider the alleged non-disclosures, either individually or collectively, fall within the category of “egregious” non-disclosure discussed by the Court of Appeal in Allen which would justify the Freezing Orders
32 Though he denies he “absconded” Malaysia.
being set aside altogether. I therefore turn to consider, on a de novo basis, whether there is a proper basis for the Freezing Orders to continue.
Is there a good arguable case that the Malaysian Judgment will be registered in New Zealand?
Introduction
[60] As noted at [17](b) above, the respondents say there are three reasons why Mudajaya does not have a good arguable case for registration of the Malaysian Judgment (or that any registration will survive an application to set it aside):
(a)first, the Malaysian Judgment was obtained by “fraud”;33
(b)second, enforcement of the judgment in New Zealand would be contrary to public policy;34 and
(c)third, the respondents were not given proper notice of the Malaysian Proceedings to enable them to defend those proceedings.35
Default judgment obtained by fraud
[61] Section 6(1)(d) of the Reciprocal Enforcement of Judgements Act 1934 (the Act) states:
6. Cases in which registered judgments must, or may, be set aside
(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if the High Court is satisfied—
…
(d) that the judgment was obtained by fraud; or
…
33 Reciprocal Enforcement of Judgments Act 1934, s 6(1)(d).
34 Section 6(1)(e).
35 Section 6(1)(c).
[62] The concept of “fraud” as used in s 6(1)(d) does not have the pejorative connotation of wilful deception.36 It is a matter of looking at the whole circumstances:37
… if the Court is then left with a feeling of uneasiness as to the manner in which, or the evidence on which, judgment in the original Court was obtained, this is sufficient to call for a direction that an issue be tried under R.23(2) of the Reciprocal Enforcement of Judgments Rules 1935.
[63] The Court of Appeal observed in Svirskis v Gibson that it would only be in the rarest of cases, if ever, that a New Zealand court would be satisfied on contested affidavit evidence that fraud before the foreign court had been proved.38 The Court noted that in such cases there may nevertheless be a sufficient case for a direction, on the setting aside application, that an issue between the parties be stated and tried. As to the threshold for such a direction the Court stated: 39
The power under r 23 to direct an issue is discretionary. In deciding whether a case strong enough to justify such a direction has been made out, the court would be entitled, we think, to have regard to all the circumstances of the case: including whether the defendant is merely seeking to try again on substantially the same evidence issues already adjudicated on in the overseas court; and whether the defendant deliberately refrained from appearing in that court. If he did so refrain, another relevant consideration must be what he should have foreseen as the probable consequences. If a defendant had adequate notice of the nature of the evidence likely to be given by the plaintiff yet did not avail himself of the opportunity of contradicting it, he may have difficulty in persuading the New Zealand court to exercise the discretion in his favour.
[64] In Richards v Cogswell, Barker J determined an opposition to registration of a judgment obtained in Queensland by default without any form of formal proof or affidavit evidence to support the claim itself. The statement of claim was inaccurate, in that it did not reflect what was later agreed to be the correct position. Barker J held that this was sufficient to prevent registration:40
The statement of claim appears to have been drawn negligently, in that it did not reflect what is now agreed to be the proper basis of the parties' dealings; the word “fraud” could cover the situation such as the present where the Judge in Queensland was asked to give judgment on the basis of a statement of claim which alleged facts which really bore little reality to the
36 Richards v Cogswell (1995) 8 PRNZ 383 at 386.
37 James Meikle Ptv Ltd v Noakes HC Auckland A823/80, 25 July 1983, per Prichard J.
38 Svirskis v Gibson [1977] 2 NZLR 4 at 10.
39 At 10.
40 Richards v Cogswell, above n 36, at 386.
dealings between the parties. In my view, if the plaintiff elected to proceed by way of a statement of claim which did not reflect the true situation and which contained clearly demonstrated inaccuracies, then the plaintiff is not entitled to hold a judgment given in good faith by a Judge on the basis of that inaccurate statement of claim.
[Emphasis added]
[65] The Judge’s concern was accordingly not so much that judgment had been obtained in Queensland by default (without any formal proof or affidavit evidence to support the claim itself), but that the statement of claim did not reflect what was, by the time of the hearing in New Zealand, the agreed position.
[66] The respondents submit the Malaysian Judgment was obtained, at least in part, on the basis of the pleaded allegation that Mr Chua acknowledged a debt of RM 65 million through the PTAs which he signed.
[67] That remains, however, Mudajaya’s position. Unlike in Richards v Cogswell, there is not an agreed position which differs from that set out in the statement of claim on which the Malaysian Judgment has been granted. I do not comment on whether the factual contest and circumstances in which the Malaysian Judgment came to be obtained would meet the threshold for a direction on a setting aside application that an issue be stated and tried. That is a matter for consideration on any application to set aside the Malaysian Judgment (if it is registered here).
[68] For the purposes of the present application, however, and given the contested factual evidence, I am satisfied there is a tenable argument that the Malaysian Judgment will not be set aside on the grounds it was obtained by fraud for the purposes of s 6(1)(d) of the Act.
Enforcement of the judgment would be contrary to public policy
[69] Section 6(1)(e) of the Act states that the Court must set aside registration of a foreign judgment if it is satisfied that enforcement of the judgment would be contrary to public policy in New Zealand. As confirmed by the Court of Appeal in Lane
v Questnet Ltd, the exception is narrow, involving notions of repugnance and matters that would “shock the conscience” of a reasonable New Zealander.41
[70] The respondents submit that enforcement of the Malaysian Judgment would be repugnant and shocking to the ordinary New Zealander given:
(a)Mudajaya’s admission of altering the PTAs to insert RM 65 million after they were signed; and
(b)the audio recorded threats which led to the signing of the various documents on which Mudajaya now relies.
[71] For largely the same reasons canvassed earlier in this judgment, I disagree. There is at least a factual contest as to the state of all the PTAs when Mr Chua signed them, and quite clearly he was aware that he was signing some (on Mudajaya’s case) or all (on his case) without an amount included. I have also set out above my views on the existence of a tenable argument that Mr Chua was involved in the receipt of secret profits while working for Mudajaya. Again, therefore, there is a tenable argument based on sufficient evidence that any later registration of the Malaysian Judgment will not be set aside pursuant to s 6(1)(e) of the Act.
No notice was given to enable the judgment debtors to defend the proceedings
[72]Section 6(1)(c) of the Act states:
6 Cases in which registered judgments must, or may, be set aside
(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment shall be set aside if the High Court is satisfied—
…
(c) that the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or
41 Lane v Questnet Ltd [2009] NZCA 578 at [47], approving the Court’s earlier decision in Reeves v OneWorld Challenge LLC [2006] 2 NZLR 184.
…
[73] Mr Gray QC described this as the “most difficult” aspect of the application. I agree. It was also the aspect of the without notice application which gave me most reason for pause.
[74] There is no evidence before the Court that Mr Chua had actual notice of the Malaysian Proceedings after they had been commenced, but prior to judgment being entered. Mr Wong suggested in his affidavit in support of the without notice application that Mr Chua remained in contact with some employees at Mudajaya, and the fact Mudajaya had commenced proceedings against him in 2018 was “well known”. Mr Wong says he therefore “strongly suspected” that Mr Chua would have been advised of the proceedings as a result. No further evidence in this regard is before the Court on the current application. Mr Hollyman, rightly, in my view, characterises this aspect of Mr Wong’s evidence as speculative. I do not consider it provides a tenable basis for concluding Mr Chua had actual notice of the proceedings.
[75] Mudajaya also notes that in the PTAs, Mr Chua (and those other members of his family signing the documents) submitted to the exclusive jurisdiction of the Malaysia courts. I return to the topic of submission to jurisdiction clauses later in this judgment. But for present purposes, I simply observe that submitting to the jurisdiction of a court in a contractual document (which may have been entered into many years prior to any court proceedings being commenced) says nothing about whether a defendant had actual notice of later proceedings.
[76] In its submissions in support of the without notice application, Mudajaya said that a defendant will have received adequate notice for the purposes of s 6(1)(c) when he or she knew proceedings would be commenced, and notice could not be given to them after the commencement of the proceedings because of deliberate actions taken by him or her to avoid the proceedings. Mudajaya submitted that this interpretation is consistent with the text of s 6(1)(c) and gives effect to its purpose.
[77] Mudajaya further submits on the present application that if a defendant chooses to abscond when he or she knows proceedings will be issued, the resulting
judgment would have been reasonably foreseeable. Mudajaya relies in this context on
Marine Services Ltd v Bolton, in which Barker J said:42
Like the debtor in the Brockley Cabinet case, the debtor in this case was aware of proceedings having been instituted; it would have been reasonably foreseeable to him that, when he left the jurisdiction without advice to the plaintiff or to the Court, that some sort of default judgment might well be issued.
[Emphasis added]
[78] Mudajaya acknowledges that the High Court has previously held that notice under s 6(1)(c) requires actual notice after the commencement of the proceedings.43 But Mudajaya relies on a more recent decision of Woolford J in Robinson v Fairmount Trustee Services Ltd which it says stands for the proposition that actual notice of the proceedings themselves is not required.44 Mudajaya says Robinson stands for the proposition that it is sufficient if a defendant has notice of a prior investigation into their actions which ultimately leads to formal court proceedings. Therefore in this case, Mr Chua clearly had actual notice of the investigation into his actions, and that Mudajaya would commence proceedings against him if necessary. He nevertheless chose to leave the jurisdiction and not participate in those (reasonably foreseeable) proceedings.
[79] Mr Gray further submits that if s 6 were construed to require actual notice, there would be perverse consequences. Truly evasive defendants, actively taking steps to avoid service and the consequences of proceedings (for example by fleeing the country), may not be able to be proved to have had actual notice of the proceedings, but such defendants would be in a better position than “less evasive” defendants who have been served.
[80] For the respondents, Mr Hollyman does not suggest a default judgment obtained in circumstances where there has been substituted service ordered in the foreign jurisdiction could never be registered in New Zealand. But he says s 6(1)(c) nevertheless requires the Court to be satisfied that the judgment debtor did have actual
42 Marine Services Ltd v Bolton (1992) 6 PRNZ 173 (HC) at 180.
43 Office Français D’Exportation de Matériel Aeronautique v Airwork (NZ) Ltd (1996) 9 PRNZ 690, at 696.
44 Robinson v Fairmount Trustee Services Ltd [2013] NZHC 1884.
notice of the foreign proceedings, which may have come about as a result of the substituted service or through other means. Mr Hollyman points to a number of authorities which he says confirm actual notice is required.
[81] Having considered the parties’ submissions at the hearing, as well as additional authorities the Court had identified as being relevant, I provided the parties with an opportunity to make further brief submissions on those authorities. Both parties filed further submissions.
[82] Mudajaya accepts that the trend of the authorities is that actual notice of the foreign proceedings is required for the purposes of s 6(1)(c). It notes, however, that there is no appellate authority in New Zealand to this effect. Mudajaya further submits that what amounts to notice under s 6(1)(c) is a question of law and fact, and the authorities suggest that the courts will take a pragmatic approach to what is considered sufficient notice for the purposes of s 6(1)(c). It points to the fact that at common law, actual notice is not required when, as in this case, the judgment debtor has submitted to the foreign jurisdiction and has been served (including by way of substituted service) in accordance with the rules of that jurisdiction.45 It says that this properly informs the approach to notice under s 6(1)(c).
[83] In summary, Mudajaya says that the wording of s 6(1)(c) (which does not refer to “actual” notice) and the purpose of the provision is to ensure that the notice accords with natural justice, in terms of whether the judgment debtor was “taken by surprise” and therefore not able to properly defend the proceedings.
[84] The respondents maintain their position that nothing less than actual notice is required for the purposes of s 6(1)(c). They say this is clear from the authorities and the text of the statute itself, and consistent with the need to provide “important procedural safeguards” in the context of enforcing foreign judgments in this jurisdiction.
45 Referring to Lawrence Collins (ed) Dicey Morris and Collins on the Conflicts of Laws (15th ed, Sweet & Maxwell, London, 2012) at [14-080].
Discussion
[85] As noted above, there is no New Zealand appellate authority directly on point. However, in Office Français D’Exportation de Matériel Aeronautique v Airwork (NZ) Ltd, Morris J held:46
Notice, in terms of this section, means actual knowledge of the proceedings. This does not mean knowledge of every part or step of the proceedings but rather knowledge of the existence of the proceedings. Knowledge of a threat to bring proceedings is not sufficient although, of course, such knowledge, once the notice has been established, may assist in determining the extent of the recipient’s understanding: Marine Services Ltd v Bolton (1992) 6 PRNZ 173. Knowledge of the proceedings must, I consider, include knowledge of the true nature of the proceedings. Applied to this case, the creditor was required to bring to the notice of the debtor the fact it had issued proceedings to recover moneys due to it for goods supplied. It was further required to ensure Airwork was given this notice in sufficient time to enable it to defend the proceedings. Provided such notice was given, the creditor was not required to acquaint the debtor with any further steps taken by it in the cause: Marine Services Ltd v Bolton (supra).
[Emphasis added]
[86] Mudajaya refers to this as an example of the Court taking a pragmatic approach to notice under s 6(1)(c). The High Court set aside registration of a French judgment. The proceedings had been served, but only in French, in circumstances when the judgment creditor was expressly told the judgment debtor required documents in English, that it had limited knowledge of French and disputed a debt was owing. The High Court held that as the documents had not been provided in a language understood by the judgment debtor, there had not been sufficient notice under s 6(1)(c).
[87] Rather than this decision demonstrating a pragmatic approach, however, it arguably illustrates a quite strict approach to the question of (actual) notice. The judgment debtor clearly had been served with the proceedings, but for whatever reason, had not taken any steps to inform itself of what the documents were and required.
46 Office Français D’Exportation de Matériel Aeronautique v Airwork (NZ) Ltd, above n 43, at 696.
[88] In Marine Services, upon which Mudajaya relies, the question of whether s 6(1)(c) requires actual notice did not arise, as there was no dispute in that case that the judgment debtor had actual notice of the proceedings generally.47
[89] Several overseas authorities have considered the question of notice under the equivalent provisions to s 6(1)(c). For example, the Supreme Court of the Australian Capital Territory in Brockley Cabinet Co Ltd v Pears (dealing with the same statutory wording to s 6(1)(c)) stated:48
... it is apparent from the clause in parenthesis that service in accordance with rules of court is not necessarily sufficient, and a form of substituted service which did not come to the attention of the defendant would plainly be insufficient.
[90] Subsequent decisions in Australia have taken a similar approach. In Barclays Bank Ltd v Piacun, the full Court of the Queensland Supreme Court49 considered an appeal from an order of a Chambers Judge registering a default judgment obtained in England. The judgment debtor in that case had left England to reside permanently in Australia. An order for substituted service was obtained leading to entry of a default judgment. The judgment debtor’s first notice of the English proceedings was when he was served in Queensland with an originating summons and supporting affidavit seeking registration of the English Judgment in Queensland. There was no evidence the judgment debtor had any notice of the English proceedings prior to the default judgment being entered.
[91]In his judgment, Connolly J stated the following:50
It is plain that paragraph (c) calls for actual notice, the parenthesis expressly excluding such modes of service as the sticking up of notices, substituted service by advertisement, service by post to last known places of address and the like.
47 The issue in Marine Services Ltd v Bolton, above n 42, was whether there must also be actual notice of each step in the proceedings. The Court held that notice of individual steps was not required.
48 Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333 at 335-336. The decision was cited with approval by Barker J in Marine Services Ltd v Bolton, above n 42.
49 Comprising Douglas, Connolly and Macrossan JJ.
50 Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 at 478.
[92] The key issue in Barclays Bank Ltd v Piacun was whether the notice requirements of the equivalent of s 6(1)(c) were satisfied when the judgment debtor, through service of the application to register in Australia, had had time to apply in England to set aside the default judgment. The Chambers Judge had considered such notice sufficient.
[93]Connolly J disagreed. He stated:51
While it may well be right to say that the appellant would have good prospects of having a default judgment set aside, and obtaining leave to defend I cannot persuade myself that this is what is meant by paragraph (c). The requirement is that the defendant received notice of the English proceedings in sufficient time to enable him to defend them. The reference to sufficient time suggests that the carriage of the proceedings is in the hands of his opponent, a situation which obtains up to judgment. After judgment there is no time limitation which he must meet and the language is inappropriate to a defendant’s application to set aside a default judgment of which no more can be asked than that it be reasonably prompt. Again the paragraph contemplates the defendant’s receiving notice in sufficient time to enable him to defend. A defendant before judgment has an absolute right to defend. A defendant after judgment is within the discretion of the court.
[Emphasis in original]
[94] Macrossan J adopted a similar approach. It is also implicit in his judgment that the Judge considered the Queensland equivalent of s 6(1)(c) requires actual notice:52
In the proceedings for registration, conducted as they were, it might be thought that it was difficult for the respondent to avoid the application of s. 7(1)(c) in the circumstances of this case but on the respondent’s behalf it was contended that it would be proper to look at matters as they stood at the time that the judge was considering the application to register.
[95] Macrossan J rejected the submission that notice of the foreign proceedings through notice of the application to register the foreign judgment in Australia was sufficient. Having surveyed the purpose of the legislation, he concluded that it displays a concern with “necessary safeguards” both in defining the types of judgments which may be registered and in defining the circumstances in which registered judgments shall or may be set aside. Macrossan J stated that in the circumstances envisaged in s 7(1)(c) of the Queensland legislation, and other
51 At 479.
52 At 481.
provisions pursuant to which a court must set aside registration, the judgment debtor is given a “summary right” to defeat registration in the local court and thus avoid any attempts at execution based on registration. The Judge stated:53
In these cases the legislative design appears to be to give the debtor a right ex debito justiciae to set aside registration without more ado. Neither the language used nor my view of the policy behind the words of the subsection would permit it to be stretched to cover the case where the debtor had notice only of the fact of a foreign final judgment having been entered against him and so had no more than a subsequent opportunity to move in some fashion to set it aside.
[96] In Esso China Inc v Chan, the Supreme Court of Victoria adopted the “actual notice” test as outlined in Barclays Bank Ltd v Piacun.54 In Esso, two judgments had been obtained by default against the respondent, Mr Chan, in Hong Kong. Notice of the proceedings had been posted to Mr Chan’s apartment in Hong Kong. He claimed he had not received them because he lived in Australia at the time. Balmford J noted that in the context of an application to set aside a registered judgment, the defendant carries the onus of satisfying the court of the fact he did not receive sufficient notice. In the case before the Court, this turned on whether Mr Chan had discharged the evidential onus on him to show he had not received actual notice of the Hong Kong proceedings. Due to inconsistencies in his affidavits, in particular regarding trips made to Hong Kong over the relevant period, he was unable to do so.
[97] More recently, in Bank Polska Kasa Opieki Spolka Akcyjna v Opara, default judgments had been given against the respondents in Poland in relation to overdue debts on mortgages.55 The respondents knew the mortgages had been terminated due to default, but did not know proceedings had been commenced until after judgment had been entered. The applicant had successfully applied to have the Polish judgments registered in Australia, upon which the respondents applied to set the registration aside. The applicant argued (among other things) that the respondents should have expected the judgments to have been issued, given the debts then due under the mortgages.
53 At 483.
54 Esso China Inc v Chan [1999] VSC 294.
55 Bank Polska Kasa Opieki Spolka Akcyjna v Opara (2010) 238 FLR 309.
[98] Registration of the Polish judgment was set aside. The Court confirmed actual notice of the foreign proceedings is required.56 The Court rejected the submission that awareness of the facts and circumstances which made the commencement of the foreign proceedings a likely event was sufficient for the purposes of the equivalent of s 6(1)(c). McMurdo J stated:57
The relevant ground refers to “notice of those proceedings” in the sense of actual rather than anticipated or likely proceedings. No authority was cited for the proposition that under this provision, in some way a debtor might be said to receive notice of proceedings which were then non-existent.
[99] I respectfully agree with this conclusion. Knowing that proceedings are “likely” does not translate to notice of the actual proceedings in sufficient time to enable a defendant to defend them. It also gives rise to a lack of clarity. What if the proceedings are considered only possible, or probable? In this case, for example, some three years elapsed between the last engagement between the parties and the commencement of proceedings. Were the proceedings likely, or reasonably foreseeable in those circumstances? In my view, the plain and clear statutory language used in s 6(1)(c) does not permit such an imprecise approach.
[100] McMurdo J also rejected the submission that sufficient notice of the foreign proceedings was given when the judgment debtor was served with the application to register the foreign judgment in Australia and thus had an opportunity to apply in Poland to set aside the original judgment. McMurdo J stated that this was contrary to the plain language of the section and the judgment of the Court in Barclays Bank Ltd v Piacun.
[101] Returning to this jurisdiction and Woolford J’s decision in Robinson. As noted, Mudajaya submits it stands for the proposition that knowledge of an investigation which leads to proceedings is sufficient. I disagree. The issue in Robinson was the proper definition of “the proceedings” for the purposes of s 6(1)(c). In that case, his Honour was satisfied that the judgment debtor had actual notice of an investigation by the English Pensions Ombudsman which then led to court
56 At [37], also relying on Barclays Bank Ltd v Piacun, above n 50.
57 At [39].
proceedings.58 Under the relevant statutory scheme, however, the Pensions Ombudsman had power to investigate and to make directions or determinations, which were then directly enforceable in a County Court as if they were a judgment order of that Court.59 Woolford J held that in that context, the investigation leading to the determinations formed part of “the proceedings” for the purposes of s 6(1)(c).
[102] Those circumstances are, of course, quite different to the present. Mudajaya’s own internal investigation was not carried out pursuant to any statutory scheme. Its findings are not directly enforceable as if they were a judgment of a court. Further, Mudajaya’s investigation had concluded by mid-2015, yet formal court proceedings were not commenced in Malaysia until some three years later, in February 2018.
[103] The final authority relevant to the present discussion is that of the New Zealand Court of Appeal in Lane v Questnet Ltd.60 Whether s 6(1)(c) requires actual notice of the foreign proceedings was not an issue in that case. Rather, it was common ground the judgment debtor was in fact aware of the foreign proceedings generally. The issue before the Court was whether s 6(1)(c) requires not only notice by the judgment debtor of the proceedings generally, or extends to notice of the particular step in the proceeding which led to judgment (i.e. a hearing date).61
[104] In addressing the issue before it, the Court referred with approval to the approach adopted by Barker J in Marine Services, which in turn relied on Brockley Cabinet Co Ltd. The Court of Appeal also set out in its judgment those extracts of the decision in Brockley which state that actual knowledge is required for s 6(1)(c).62
58 On the basis that several letters giving notice of the investigation had been sent to the defendant’s residential address, and rejecting the defendant’s submission that all of them must have been misdelivered.
59 Robinson v Fairmount Trustee Services Ltd, above n 44, at [3].
60 Lane v Questnet Ltd, above n 41.
61 In this context, I do not accept Mudajaya’s submission that Ellen France J, delivering the judgment of the Court, did not make any final determination of whether s 6(1)(c) requires actual notice, despite having the opportunity to do so. In this context, Mudajaya refers to her Honour’s comments (at [45]) that “[e]ven if notice of the hearing was required” and “if actual notice was required we would have said that the notice given was sufficient” (Mudajaya’s emphasis). These comments were in the context of considering whether notice of the particular step in the proceeding leading to judgment – i.e. the hearing date – was required, not whether actual notice of the proceedings generally was required (it not being in dispute that the judgment debtor had such notice).
62 At [38]-[39].
While I accept the question of whether actual notice of the foreign proceedings is required by s 6(1)(c) was not directly considered in Lane v Questnet, there was nevertheless no suggestion the Court of Appeal disagreed with the approach taken in Brockley.
[105] The Court also referred to a decision of the Outer House of the Court of Session, Scotland, Administratiekantoor van Spruyt GN Co BV v Herbage.63 In that case, the judgment debtor challenged registration in Scotland of a Dutch default judgment. The Court of Appeal noted that the judgment debtor had not been personally served but the proceedings had been advertised in accordance with Dutch law. The creditors had, however, produced telexes showing the debtor was in fact aware of the existence of the proceedings. In this way, I accept that having notice of the proceedings does not require personal service, or indeed any particular form of service. Rather the question is one of notice, rather than service, which may come about through more informal means.
[106] As noted earlier, Mudajaya relies on the fact Mr Chua (and members of his family) submitted to the exclusive jurisdiction of the Malaysian courts when they executed the PTAs. Mudajaya says that where the judgment debtor has agreed to submit to the jurisdiction of a foreign court, the analysis under the common law approach should be the same as under the Act. Again, I disagree. Submission to jurisdiction and notice of proceedings in sufficient time to enable a defendant to defend them are two very different things. This is recognised by the authors of Dicey who state:64
The 1933 Act [the equivalent to the New Zealand Act] provides that registration of a foreign judgment must be set aside of the defendant did not receive notice of the proceedings (i.e. of the initiation of the action) in sufficient time to enable him to defend and he did not appear, even if process may have been duly served on him in accordance with the applicable foreign law. And under the 1933 Act a foreign judgment, whether registered or not and whether registerable or not, will not be recognised as conclusive between the parties thereto in English proceedings founded on the same cause of action if the defendant did not receive such notice and did not appear. This ground for setting aside the registration of a judgment is quite independent of and distinct from the ground that the foreign court had no jurisdiction. Hence it
63 Administratiekantoor van Spruyt GN Co BV v Herbage [1986] ECC 26 (OH).
64 Collins Dicey Morris and Collins on the Conflict of Laws, above n 45, at [14–168]. See also [14– 081].
follows that the common law authorities suggesting that a defendant who agrees to submit to the jurisdiction of a foreign court also agrees to waive actual notice of the proceedings have no application.
[Emphasis added]
[107] Taking all these matters together, I must consider whether there is a tenable argument based on sufficient evidence that the Malaysian Judgment will be registered here (or survive an application to set it aside if it is registered), when there is no suggestion or evidence Mr Chua had actual notice of the Malaysian Proceedings prior to default judgment being entered. I assume for present purposes Mr Chua would bear the onus on any application to set aside the Malaysian Judgment of demonstrating he did not have actual notice of the Malaysian Proceedings.65 But given he was living in New Zealand at the time, that onus may be relatively easy to discharge, at least in the sense of passing the tactical burden to Mudajaya.66 Further, the onus rests on Mudajaya on this application to demonstrate a tenable argument. There is no suggestion Mr Chua was in Malaysia on the particular days the proceedings were advertised. There is no suggestion he or anyone connected with him visited the Malaysian Court and saw the proceedings posted on the Court noticeboard. I have already addressed above the speculative nature of Mr Wong’s evidence that other Mudajaya employees may have told Mr Chua of the proceedings. No further evidence to this effect was adduced by Mudajaya on the present application in any event.
[108] The issue arising under s 6(1)(c) of the Act has caused me some anxiety. I am conscious not to pre-judge matters which are properly the domain of an application to register the Malaysian Judgment or to set it aside. Equally, however, I cannot ignore the requirement on me to be satisfied there is a tenable argument that the Malaysian Judgment will be registered in New Zealand and survive an application to set it aside.
[109] Having carefully considered the evidence and the relevant authorities, I have reached the conclusion that there is not a tenable argument the Malaysian Judgment will be registered here and survive an application to set aside. While there is no New
65 The approach taken in Brockley Cabinet Co Ltd v Pears, above n 48, at 336; Esso China Inc v Chan, above n 54, at [16]-[17]; and Office Français D’Exportation de Matériel Aeronautique v Airwork (NZ) Ltd, above n 43, at 698. I acknowledge a different approach to the burden of proof was taken in Robinson v Fairmount Trustee Services Ltd, above n 44, at [24].
66 Li v 110 Formosa (NZ) Ltd [2018] NZHC 3418 at [165]-[166].
Zealand appellate authority directly on point, the clear trend of all the authorities considered is that actual notice is required for the purposes of s 6(1)(c). Knowledge that proceedings are likely or probable does not equate to such notice. For the reasons given above, the fact the judgment debtor submitted to the jurisdiction of the foreign court through an earlier contractual clause does not improve the situation. There is no evidence before me of actual notice in this case, and concluding that there is a tenable argument to that effect is speculative. Speculation is not appropriate in the context of the highly intrusive step of preventing a person from dealing freely with their assets.
[110] In reaching this conclusion, I accept Mr Gray’s submission that the requirement for actual notice under s 6(1)(c) may leave “truly evasive” defendants in a better position that those who are less evasive. Nevertheless, I view the requirement for actual notice as being a part of the “quid pro quo” for enforcing certain foreign judgments in New Zealand without inquiry as to the merits. In this context, I respectfully agree with Macrossan J’s observations in Barclays Bank Ltd v Piacun that the restrictions on the types of foreign judgments that can be registered, together with circumstances in which the court must (not may) set aside registration, are part and parcel of the necessary safeguards imposed by the legislation as part of an overall scheme for registering foreign judgments in New Zealand. In this context, the strictly defined grounds upon which the High Court must set aside registration, including on the basis of lack of appropriate notice, can be contrasted with the broader jurisdiction in the domestic context to set aside a default judgment. Such a judgment may be set aside if in all the circumstances, the Court is satisfied there has been, or may have been, a miscarriage of justice.67 This permits an application to set aside being declined even where the judgment debtor can show they had no actual notice of the proceedings, but the court is nevertheless satisfied, for example, that they do not have a tenable defence to the claim.
[111] For the above reasons, the respondents’ application to rescind the Freezing Orders will be granted.
67 High Court Rules 2016, r 15.10.
Is there a real risk of dissipation of assets?
[112] Given the above, it is not strictly necessary to consider this issue. But, as this judgment may be appealed, and as with the other topics dealt with in this judgment, it is appropriate for me to set out my findings.
Legal principles
[113]McGechan on Procedure summarises the position as follows:68
(a)The requirement to establish a real risk of dissipation is central to the freezing order jurisdiction.
(b)Mere assertion of belief that the respondent might dissipate its assets, unsupported by solid grounds justifying that belief, is insufficient.
(c)The applicant must point to circumstances from which “a prudent, sensible commercial [person] can properly infer a danger of default”, a test which is “not unduly exacting”.
(d)Meeting ordinary living expenses, legal expenses relating to the freezing order and transactions in the ordinary course of business will not constitute dissipation of the assets: r 32.6(3).
[114] Further, the fact that there is a prima facie case of dishonesty can be relevant to whether there is a risk of dissipation. For example, in Hannay v Mount, the Court of Appeal stated:69
The Mounts’ conduct in transferring large sums of money to their company without a credible explanation against the background of a prima facie case of dishonesty in misusing investors’ funds, satisfies us that there is a real danger that any judgment which the investors may obtain against the Mounts will be wholly or partly unsatisfied because their assets will be disposed of, dealt with or diminished in value in the interim. On this basis we respectfully disagree with Ronald Young J’s conclusion that there is no evidence of any dissipation of the Mounts’ funds.
68 R Osborne and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR32.2.03(3)] and the authorities therein.
69 Hannay v Mount, above n 19, at [26].
[115] In Covington, Allen J, in summarising the principles to be gleaned from relevant authorities, stated:70
If there is evidence of fraud or some other dishonest activity committed by the defendant, the threshold for the defendant’s likely disposition for disposal of assets should not prove great, but the threshold will correspondingly be more difficult to cross if the claim does not relate to such conduct but merely to some lesser breach, such as breach of a commercial contract.
Discussion
[116] I am satisfied that now Mr Chua is on notice that Mudajaya is taking steps to recover more of his assets, there is a real risk of dissipation.
[117] First, it is relevant in my view that only a matter of months after the discovery of the alleged fraud and entry into the PTAs, Mr Chua and his family left Malaysia and took up residence in New Zealand. As noted, Mr Chua does not clearly state in his evidence why that was so. While a move from one country to another is not itself determinative, it is nevertheless relevant to the overall circumstances being considered.
[118] Second as discussed earlier in this judgment, I am satisfied there is a tenable argument Mr Chua was involved in the wrongful receipt of secret profits. Even on his own case, he was actively aware of and involved in collecting secret profits and delivering them to others within the company. It strikes me as somewhat unlikely that he would take these steps, but not report them to his superiors, if he was not also receiving some benefit from them.
[119] Third, Mr Chua has recently been arrested by the Malaysian Police in relation to misappropriation of Mudajaya’s property. As noted earlier, the overlap of those charges and the present proceedings is unclear. The Malaysian Police are nevertheless of the view that there is sufficient evidence to charge Mr Chua with dishonesty offences relating to Mudajaya.
70 Covington Group Holdings Ltd v Zhong (No 3) (2004) 17 PRNZ 819 at [58](e).
[120] At the time the without notice application was filed, there was evidence of a sell down of assets, in terms of Crux’s property and vehicles. I note Mr Chua’s explanation for these steps, which prima facie appears consistent with the evidence of the type of business he has set up in New Zealand. I accordingly do not place any real weight on this factor.
[121] Mr Gray also submits that the respondents have not been fully candid in their affidavits listing their assets. He points to the fact no international assets have been disclosed. Those appear to be, however, the Malaysian car racing business which Mr Chua has since transferred to New Zealand. Insofar as shares in Malaysian companies (the assets of which have been transferred to New Zealand) have not been declared, I do not detect any deliberate attempt to conceal those assets. The racing assets transferred to New Zealand have been identified. Nevertheless, there remains a question mark over the source of funds to maintain the racing “hobby” and lifestyle which Mr Chua evidently enjoys, as well as the source of the funding of the significant loans he has made to Crux and a family trust.
[122] Accordingly, given the not “exacting” nature of the test, I am satisfied that there remains a real risk of dissipation of assets in the absence of the protection of the current Freezing Orders.
Mudajaya’s administration of the Freezing Orders
[123] As noted earlier in this judgment, Mr Hollyman does not suggest this ground alone would justify the Freezing Orders being rescinded. Rather, it plays more of a “supporting role”. I was not referred to any authorities where an overly restrictive approach to the implementation of freezing orders has provided a basis to rescind orders otherwise properly made.
[124] I accept that in the early period of the Freezing Orders, Mudajaya appeared to take an overly restrictive approach to implementation of them. That appears to have been based on its view that Mr Chua’s assets in New Zealand are in fact Mudajaya’s assets, having been funded through the secret profits it says were received by him. There is, of course, no present judgment to that effect. Rather, the Malaysian
Judgment simply orders an inquiry to determine what assets might have been funded by the alleged secret profits.
[125] It is also questionable whether this aspect of the Malaysian Judgment (and the accompanying declaration that any such identified assets are held by the judgment debtors on constructive trust for Mudajaya), could be registered in New Zealand in any event. While the Act makes provision for registration in New Zealand of non- money judgments from certain foreign jurisdictions,71 there has been no Order-in- Council naming any foreign jurisdictions for the purposes of such registration. Accordingly, only money judgments are capable of being registered under the Act. Certain aspects of the Malaysian Judgment are “a money judgment”.72 While the point was not argued before me, it may be that only those aspects of the Malaysian Judgment ordering Mr Chua and Ms Tan to pay sums of money to Mudajaya could ever be registered in this jurisdiction.
[126] It appears that Mudajaya’s approach to enforcement of the Freezing Orders has nevertheless been influenced by its view that its claims are proprietary in nature, reflected in its submission that given that interest, the Court is entitled to take a “much stricter approach to which expenses (if any) are permitted under r 32.6(3) and the orders themselves”.
[127] That submission somewhat misses the point, however. The Freezing Orders expressly state that they do not:
… prohibit the respondents from dealing with the assets the subject of the Orders for the purpose of paying ordinary living expenses; paying legal expenses related to the Freezing Orders; or disposing of assets, or making payments, in the ordinary course of the respondents’ business, including business expenses incurred in good faith.
[128] It is unfortunate that issues in relation to the implementation of the Freezing Orders continued over a sustained period of time, when the orders made provision for the matter to be brought back before the Court on 24 hours’ notice. This may well have enabled swift resolution of any difficulties being encountered. Further,
71 Reciprocal Enforcement of Judgements Act 1934, s 3B.
72 Section 2; a judgment being defined as a “judgment or order…”.
Mr Hollyman confirmed at the hearing that the only difficulties encountered in more recent times have been the respondents’ bank taking a very cautious approach to permitting (agreed) payments to be made from the frozen accounts. In addition, as recently as last week, the Freezing Orders have been further varied by consent to permit approximately $129,000 to be released for payment of legal fees, day-to-day living expenses and the like. A monthly amount for Mr Chua and Ms Tan’s day-to- day living expenses has also been agreed. The respondents also have the protection of bringing the matter back before the Court on short notice if any further difficulties emerge. Mudajaya has deposited $100,000 into its local solicitors’ trust account to support its undertaking as to damages.
[129] In all these circumstances, I do not consider any earlier difficulties in implementing the Freezing Orders warrant (either on their own, or in a supporting role to the other matters discussed in this judgment) the Freezing Orders being rescinded.
Result
[130] As I am not satisfied there is a tenable argument that the Malaysian Judgment, if registered in New Zealand, will not be set aside on the basis of s 6(1)(c) of the Act, the respondents’ application to rescind the Freezing Orders is granted. There is an order to that effect.
[131] I recognise that in the absence of direct appellate authority on the type of notice required for the purposes of s 6(1)(c) of the Act, Mudajaya may wish to appeal this aspect of my judgment. Given I am satisfied there is otherwise a proper basis for the Freezing Orders to continue, the above order rescinding the Freezing Orders will only take effect as of 4 pm Wednesday, 26 June 2019 to give Mudajaya time to consider its position.73
73 Mudajaya also invites me to “adjourn the application to set aside the judgment” pursuant to s 7(1) of the Act, given a hearing in Malaysia on 9 July on whether the substituted service orders in the Malaysian Proceedings ought to have been granted and the Malaysian Judgment ought to be set aside. The jurisdiction to adjourn under s 7(1) of the Act is not, however, enlivened in this case. The present application is to rescind the Freezing Orders, not to set aside an already registered judgment.
Costs
[132] As the respondents have been successful on their application, and absent further information from the parties, there would appear to be no reason why costs should not follow the event in the ordinary way. Given this proceeding raised some complex and novel issues, there may be a basis for costs to be assessed on something other than a 2B basis. It may also be appropriate, however, for some reduction to be made from scale, given the primary basis upon which the respondents pursued their application (namely material non-disclosure) was unsuccessful.
[133] If the parties are unable to agree costs, the respondents may file and serve a costs memorandum within 15 working days of the date of this judgment. Mudajaya may file a response within a further 5 working days. No memorandum is to be longer than 5 pages in length. I will thereafter determine costs on the papers.
Fitzgerald J
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