Perkins v Perkins HC Auckland CIV 2010-488-375

[2010] NZHC 1478

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2010-488-375

IN THE MATTER OF     the Reciprocal Enforcement of Judgments

Act 1934

BETWEEN  JOHN WILFRED PERKINS Judgment Creditor

ANDMICHAEL OWEN PERKINS Judgment Debtor

Hearing:         (on the papers)

Counsel:         Z G Kennedy and I Rosic for Judgment Creditor

No appearance by or on behalf of Judgment Debtor

Judgment:      25 August 2010

JUDGMENT OF HEATH J

This judgment was delivered by me on 25 August 2010 at 11.00am pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

Minter Ellison Rudd Watts, PO Box 3798, Auckland

PERKINS V PERKINS HC WHA CIV 2010-488-375  25 August 2010

The application

[1]      John  Wilfred  Perkins  (John)  seeks  an  order  registering  parts  of  two judgments of the Chancery Division of the High Court of Justice of England and Wales (the English proceeding).  Orders requiring payment of money to John were made against Michael Owen Perkins (Michael).1    Michael lives in Kerikeri.  As is usual in cases such as this, the application is made on a without notice basis.

[2]      The English proceeding was issued to require Michael to restore money to the estate of the late Muriel Beatrice Perkins (the Deceased).  The orders that form the subject of the present application were made on 5 November 2009 and 13 April

2010.2

[3]      The application was put before Associate Judge Bell on 19 July 2010.  While referring the substantive application for consideration by a Judge of this Court, the Associate Judge drew attention to a number of issues which, in his view, required attention before any order could be made.  Those issues have now been addressed by counsel for John.  The application has been referred to me for determination.

Background

[4]      The English proceeding was commenced as an application for summary judgment.  Michael was represented at the hearing before Master Price; indeed, he also brought a counterclaim.   In those circumstances, he can be seen as having submitted to the jurisdiction of the Court.

[5]      On 5 November 2009,  the Master ordered that Michael pay to John “as Administrator ad colligenda bona of the Deceased’s estate the sum of £110,452.55 by way of interim payment on account of the sums which he is liable to restore to the deceased’s estate ...”  That payment was to be made on or before 3 December 2009.

1 Perkins v Perkins High Court of Justice, Chancery Division, HC 03 C03446, 5 November 2009 and

13 April 2010, Master Price.

2 See paras [5] and [6] below.

In addition, Michael was required to pay to John, by the same date, the sum of

£22,000 (plus VAT, if applicable) by way of interim payment on account of his costs liability.  Interest was also awarded.

[6]      On 13 April 2010, Master Price made a further order of £2,500 as “an interim payment in respect of ... costs”, in respect of the specific application leading to the

13 April 2010 order.  The evidence satisfies me that sum was in addition to the costs order made in November 2009.

Registration of the English judgments

[7]      Application for registration is made under s 3 of the Reciprocal Enforcement of Judgments Act 1934 (the Act).  Section 3(1) provides that the relevant provisions of the Act extend to the United Kingdom.   Section 3(3) identifies the criteria that must be met in order for the Court to register a judgment:

3.   Application of this Part of Act

...

(3)  Any money judgment of a superior Court of a country to which this Part of this Act extends, other than a money judgment of such a Court given on appeal from a Court, not being a specified inferior Court, which is not a superior Court, shall be a judgment to which this Part of this Act applies, if—

(a)      It is final and conclusive as between the parties thereto; and

(b)There is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and

(c)       It is given after the coming into operation of the Order in Council directing that this Part of this Act shall extend to that country:

Provided that nothing in this paragraph shall apply with respect to judgments given  in  the  United  Kingdom  or  in  any  other  part  of  Her  Majesty's dominions to which Part 1 of the Administration of Justice Act 1922 applied immediately before the passing of this Act.

....

[8]      The High Court of Justice of England and Wales, as a Court of unlimited jurisdiction, is a superior Court of a country to which Part 1 of the Act extends.3   The orders in issue require payment of a sum of money.4    While part of the first costs order5 could have included Value Added Tax (VAT),6 John does not seek to register any tax component of the order.7    Nor does John seek to register the judgment in respect of interest.  The judgment of the High Court of Justice was given after Part 1 of the Act came into force.8

[9]      The  only  point  I need  to  discuss  is  whether  the  judgment  is  “final  and conclusive as between the parties thereto”.9

[10]     Of the three sums in issue on the present application, two are expressed as being  “interim”  in  nature.    They  are  the  orders  for  payment  of  the  sums  of

£110,452.55 and £22,000.10    The question is whether an interim judgment of that

type can be registered under the Act.

[11]     Section 2(1) of the Act defines the term “judgment” in a manner that includes an interlocutory order; namely, one made in the course of a proceeding that grants relief  ancillary  to  that  sought.11      For  registration  purposes,  I  am  satisfied  the “interim” money judgment falls within that rubric.

[12]     Counsel for the judgment creditor have put the test of finality in the context of the circumstances in which a plea of res judicata may be made.  Dicey & Morris say:12

The test of finality is the treatment of the judgment by the foreign tribunal as res judicata.   “In order to establish that [a final and conclusive] judgment has been pronounced, it must be shown that in the court by which it was

3 See s 3(1) of the Act and, for example, Canada Trust Co v Stolzenberg [1997] 4 All ER 983 (CA) at

988-989.

4  Reciprocal Enforcement of Judgments Act 1934, s 3(3)(b).   See also the definition of “money judgment” in s 2(1) of the Act.

5 See para [5] above.

6 See para [5] above.

7 Therefore, the taxation exception in s 3(3)(b) of the Act is not engaged.

8 Reciprocal Enforcement of Judgments Act 1934, s 3(3)(c).

9 Ibid, s 3(3)(a).

10 See para [5] above.

11 In New Zealand terms, see High Court Rules, r 1.3(1), definition of “interlocutory order”.

12 Dicey & Morris The Conflict of Laws (13th ed, Sweet & Maxwell, London, 2000) Vol 1 at [14-021].

pronounced, it conclusively, finally, and forever established the existence of the debt of which it is sought to be made conclusive evidence in this country, so as to make it res judicata between the parties.”   A foreign judgment which is liable to be abrogated or varied by the court which pronounced it is not a final judgment.  But a default judgment may be final and conclusive, even though it is liable to be set aside in the very court which rendered it.

[13]     In Laws NZ, Conflict of Laws: Jurisdiction and Foreign Judgments,13  the learned author refers to Nouvion v Freeman14  as a guiding authority on whether a judgment is “final and conclusive”, for the purposes of s 3(3)(a) of the Act.  In that case, Lord Herschell said:15

The principle upon which I think our enforcement of foreign judgments must proceed is this: that in a court of competent jurisdiction, where according to its established procedure the whole merits of the case were open, at all events, to the parties, however much they may have failed to take advantage of them, or may have waived any of their rights, a final adjudication has been given that a debt or obligation exists which cannot thereafter in that court be disputed, and can only be questioned in an appeal to a higher tribunal.

[14]     Michael was represented and able to contest the application on which the orders were made.   While the orders are on an “interim” basis they, nevertheless, represent the minimum amount payable by Michael to John.  In that sense, the orders represent a final adjudication on the minimum amounts owing.   There is no suggestion that Michael will be able to reduce those amounts.  The only question is whether, in the English proceeding, an order will be made for payment of a higher sum.   I am satisfied that, as between John and Michael, the two judgments in the English proceedings are “final and conclusive”, thereby meeting the requirements of s 3(3)(a).

[15]     Judgment  is  sought  in  sterling,  thereby rendering otiose  the  need  for  an affidavit  confirming  the  current  exchange  rate  to  New  Zealand  dollars.    I  am prepared to register the judgment in pounds sterling.16

13 At para 66.

14 Nouvion v Freeman (1889) 15 App Cas 1 (HL).

15 See, for example, Canada Trust Co v Stolzenberg [1997] 4 All ER 983 (CA) at 988 and s 3(1) of the Act.

16 See Isaac Naylor & Sons Ltd v New Zealand Co-operative Wool Marketing Association Ltd [1981]

1 NZLR 361 (CA) at 365 (Cooke J), 376 (Richardson J) and 382 (McMullin J).

[16]     I am satisfied grounds for registration have been made out.   It is open for Michael to apply to set aside the registration order, should he be advised there are grounds to do so.17

Result

[17]     I make an order registering the judgments of 5 November 2009 and 13 April

2010 in respect of the three sums set out in paras [5] and [6] above.  I also award costs in favour of John, on a 2B basis, together with reasonable disbursements.

[18]     With one modification, the Registrar is authorised to seal a judgment in terms of the draft submitted, including the calculation for costs set out in Schedule A to that document.   The sealed order will also need to specify that registration of the judgment for the sum of £110,452.55 is on the basis set out in para 1 of Master Price’s order of 5 November 2009, namely that it be held by Mischcon de Reya

pending an order of the type to which that paragraph refers.

P R Heath J

Delivered at 11.00am on 25 August 2010.

17 Reciprocal Enforcement of Judgments Act 1934, s 7.  In that sense, the registration is provisional for enforcement purposes: Hunt v BP Exploration Company (Libya) Ltd [1980] 1 NZLR 105 (SC) at

122 (Barker J).