Robinson v Fairmount Trustee Services Limited
[2013] NZHC 1884
•3 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2012-404-005474 [2013] NZHC 1884
UNDER THE RECIPROCAL ENFORCEMENT
OF JUDGMENTS ACT 1934
AND
IN THE MATTER
OF AN APPLICATION TO SET ASIDE REGISTRATION OF A JUDGMENT OF THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ENGLAND
BETWEEN
COLIN SYDNEY ROBINSON Applicant
AND
FAIRMOUNT TRUSTEE SERVICES LIMITED
Respondent
Hearing: 3 July 2013 Appearances:
Applicant in person
M L Dillon for RespondentJudgment:
3 July 2013
JUDGMENT OF WOOLFORD J
ROBINSON v FAIRMOUNT TRUSTEE SERVICES LIMITED [2013] NZHC 1884 [3 July 2013]
Introduction
[1] On 19 October 2012, Brewer J made an order for registration of a judgment of the English High Court of Justice, Queen’s Bench Division, dated 7 February
2011(the judgment), on a without notice basis. The judgment debtor, Colin Sydney Robinson, has now made an application to set aside registration of the judgment under s 6 of the Reciprocal Enforcement of Judgments Act 1934 (the Act).
Issues
[2] Mr Robinson advances four grounds in support of his application:
(a) That he did not receive notice of the proceedings in England in sufficient time to enable him to defend the proceedings and did not appear (s 6(1)(c) of the Act);
(b)That the judgment was obtained in breach of the rules of natural justice (s 27(1) of the New Zealand Bill of Rights Act 1990);
(c) That the judgment is not a judgment to which Part I of the Act applies or it was registered in contravention of the Act (s 6(1)(a) of the Act); and
(d)That the judgment is not capable of being enforced in England, being the country of the original Court (s 4(2A) of the Act).
Factual Background
[3] Mr Robinson was one of a number of trustees of the ES Group Pension Scheme (the Scheme) from at least 1992. Mr Robinson received substantial retirement benefits from the Scheme in March 1999, but remained a trustee until June 2000. The Scheme was wound up at around that time with a substantial shortfall of funds. Members of the Scheme subsequently made a complaint to the Pensions Ombudsman. The Pensions Ombudsman has the power to investigate complaints about the management of occupational or personal pension schemes and to make directions or determinations binding upon the managers or trustees of the
schemes. Such directions or determinations are enforceable in a County Court as if they were a judgment or order of that Court.
[4] After retirement, Mr Robinson moved to Guernsey. When he resigned as a trustee of the pension scheme by letter dated 5 June 2000, he gave his address as The Meadows, Rue des Blicqs, St Andrew, Guernsey GY6 8YD. On 17 October 2002, the Pensions Ombudsman sent a letter with the complaint documents to Mr Robinson at his Guernsey address. On 17 November 2002, the Pensions Ombudsman sent a further letter to Mr Robinson at his Guernsey address advising him that in the absence of reply the Ombudsman was entitled to determine the complaint based upon the available evidence. The Pensions Ombudsman said he would prefer not to do this but unless Mr Robinson’s substantive response was received he would have no other option. On 7 January 2003, the Pensions Ombudsman sent a further letter with response documents to Mr Robinson at his Guernsey address. Further letters were also sent to Mr Robinson at his Guernsey address on 31 March 2003 and 11 May 2005.
[5] On 27 October 2005, Mr Robinson moved to New Zealand. A further letter from the Pensions Ombudsman was sent to Mr Robinson at his Guernsey address on
5 May 2006. This was returned marked “Gone Away”. On 6 July 2006, the new owner of The Meadows, Rue des Blicqs, St Andrew, Guernsey, sent a letter to the Pensions Ombudsman advising him that he had purchased the property from Mr and Mrs Robinson on 29 September 2005 but he had no knowledge of where they had moved to, other than the fact that they had left Guernsey. The new owner stated that since moving in he had been inundated with individuals and companies seeking the whereabouts of Mr Robinson.
[6] On 12 December 2006, the New Zealand Department of Labour advised the
Pensions Ombudsman that Mr Robinson and his wife arrived in New Zealand on 27
October 2005 and were granted visitor permits on arrival. The Department also advised the Pensions Ombudsman that their residential address was 30 Glen Atkinson Street, St Heliers Bay, Auckland 1071. On 21 May 2007, the Pensions Ombudsman sent a letter with a schedule of material facts to Mr Robinson at his
Glen Atkinson Street address requesting his immediate response and advising him that he could ask for an oral hearing in order to resolve any disputes about the facts.
[7] Land Transport New Zealand recorded Mr Robinson as purchasing a motor vehicle on 13 August 2007. The address given to Land Transport New Zealand for Mr Robinson was 30 Glen Atkinson Street, St Heliers Bay, Auckland.
[8] On 25 June 2008, the Pensions Ombudsman wrote to Mr Robinson at his Glen Atkinson Street address enclosing a Notification of Preliminary Conclusions. This notification set out the material facts along with the decisions that the Ombudsman was likely to reach in relation to each complaint, together with the likely directions.
[9] On 1 August and 11 and 29 September 2008, the Pensions Ombudsman sent further letters to Mr Robinson at his Glen Atkinson Street address. On 24 October
2008, the Pensions Ombudsman sent a further letter with a notice of hearing and related documents to Mr Robinson at his Glen Atkinson Street address. On
16 January 2009, following an oral hearing in London in November 2008, the Pensions Ombudsman sent a letter with a second Notification of Preliminary Conclusions to Mr Robinson at his Glen Atkinson Street address. Then on 11 March
2009, the Pensions Ombudsman sent a letter with his final determination to Mr Robinson at 30 Glen Atkinson Street, St Heliers Bay, Auckland. In his final determination, the Pensions Ombudsman held that the trustees of the Scheme were personally liable for losses caused to the Scheme by maladministration. He did not conclude that the trustees were fraudulent or dishonest in the strict sense of the word, except that he had little doubt that Mr Robinson’s removal of his transfer value was dishonest. All other trustees had engaged with the complaint process conducted by the Pensions Ombudsman, which included an oral hearing in London in November
2008. The Pensions Ombudsman concluded:
Those present at the hearing all put it to me that they were not men with ready resources out of which their share of any liability could be paid. However I have found that they failed in carrying out serious fiduciary responsibilities to others in circumstances in which the law specifically states that they should not be protected from liability. The applicants’ complaints are upheld and it is appropriate that they should be compensated.
[10] In respect of the maladministration identified in the final determination, each of the trustees was ordered to pay substantial sums of money to the judgment creditor. The judgment creditor had been appointed as an independent trustee by the Occupational Pensions Regulatory Authority, in order to ensure that the number of trustees was sufficient for the proper administration of the Scheme and that the Scheme’s assets were properly applied. On its appointment, the powers and duties of the judgment creditor were stated to be to the exclusion of all other trustees of the Scheme.
[11] Following the final determination of the Pensions Ombudsman, the judgment creditor sought the assistance of a firm of private investigators to confirm Mr Robinson’s whereabouts. The report by Risk Analysis (UK) Limited, showed that Mr Robinson had moved from the address of 30 Glen Atkinson Street, St Heliers Bay, Auckland on or about 21 March 2009 and that he currently resided at
7 Wynsfield Gardens, St Heliers, Auckland 1071. Included in the material provided by the private investigator was a request from Mr Robinson to New Zealand Post to redirect his mail from 30 Glen Atkinson Street, St Heliers, to counter delivery at the Remuera Postshop with effect from 21 March 2009. On 6 July 2009, the judgment creditor sent a letter of demand, together with the final determination of the Pensions Ombudsman, by track and trace to Mr Robinson at his Wynsfield Gardens address. New Zealand Post confirmed delivery to that address on 11 July 2009. However, on the specific advice of its New Zealand solicitors, the judgment creditor arranged for personal service on Mr Robinson. Accordingly, on 1 September 2009, Mr Robinson was personally served with a letter of demand and the Pensions Ombudsman’s determination at his Wynsfield Gardens address.
[12] On 7 September 2009, Mr Robinson e-mailed the judgment creditor as follows:
We have received the documents sent by a courier. As we have had no contact with anyone since leaving the UK some 11 years ago, we are bewildered and surprised to say the least. Therefore we need to read and understand and where necessary take advice, which will as you can appreciate take some time. We will endeavour to respond to you within the next 14 working days. For your information, which may cause a delay in replying, I had a heart operation last month and a scan last week to see how it had gone. I am still waiting for the results and prognosis, but the
medication slows me down and energy is at a premium. Contact by Email is the best method of communication.
[13] Mr Robinson did not respond within the next 14 working days, or at all. Mr Robinson has also not appealed to the High Court of Justice Chancery Division against the determination of the Pensions Ombudsman.
[14] The judgment creditor then made a without notice application to the Staines County Court in England to enforce the determination by the Pensions Ombudsman. In support of the application, the Pensions Ombudsman filed an affidavit in the Staines County Court. In his affidavit, he noted that he had been asked by the judgment creditor to provide details of the letters sent by his office to Mr Robinson and of other communications passing between his office and third parties in an effort to trace Mr Robinson. The Pensions Ombudsman referred to Rule 18 of the Personal and Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1995, which dealt with the method of sending or delivering documents required by the rules to be sent or delivered. It provided:
1.Any document required or authorised by these Rules to be sent or delivered to any person shall be duly sent or delivered to that person: -
(a) If it is sent to him at his proper address by post;
(b) If it is sent to him at that address by facsimile or other similar means which produce a document containing a text of the communication, in which event the document shall be regarded as sent when it is received in legible form;
(c) If it is delivered to him or left at his proper address.
[15] The Pensions Ombudsman was satisfied that the documents required by the rules to be sent or delivered to Mr Robinson were duly sent and delivered to him as required by Rule 18.
[16] In his oral submissions today, Mr Robinson queries the admissibility of the affidavit by the Pensions Ombudsman. It is my view, however, that there has been nothing untoward in the Pensions Ombudsman filing an affidavit, setting out for the Staines County Court the communications he, or his office, has had with Mr Robinson.
[17] On 4 May 2010, District Judge Batcup sitting at the Staines County Court considered the application and the award made to the judgment creditor on 11 March
2009 by the Pensions Ombudsman. Judge Batcup ordered that the judgment creditor may enforce the award in the County Court and that Mr Robinson was to pay the costs of the judgment creditor on the application. These costs were to be added to the amount unpaid under the award. The amount enforceable totalled ₤810,701, together with any further interest becoming due.
[18] In order to be able to enforce the final determination of the Pensions
Ombudsman, the judgment creditor then made a without notice application dated
23 August 2010, to transfer the case to the High Court of Justice Queen’s Bench Division for enforcement proceedings. On 8 November 2010, a senior Master of the High Court of Justice Queen’s Bench Division ordered the case to be transferred to that Court. Subsequently, on 7 February 2011, Master Patrick Eyre, a Master of the Supreme Court of England and Wales, issued a certificate under s 10 of the Administration of Justice Act 1920. The certificate recounted the history of the claim, which commenced with a report from the findings of the independent trustee dated 12 December 2001, which was accepted by the Pensions Ombudsman as a complaint under Part X of the Pension Schemes Act 1993. The certificate noted that no application to set aside the final determination had been made and that no appeal against the determination had been brought within the time prescribed. The certificate further noted that enforcement of the determination was not, for the time being, stayed or suspended, that the time available for its enforcement had not expired and the determination was accordingly enforceable. The certificate then referred to the order of District Judge Batcup and after noting the transfer of the case to the High Court of Justice Queen’s Bench Division for enforcement proceedings, certified that the judgments annexed to the certificate were true copies of the judgments filed in the Supreme Court of England and Wales against Mr Robinson.
[19] On 18 October 2012, the judgment creditor filed an application without notice for registration of a foreign judgment under the Act in the High Court of New Zealand. Affidavits of Andrew Cohen dated 3 September 2012, and David Johnston dated 6 September 2012, established the essential background facts and satisfied Brewer J that there was a judgment of the High Court of Justice Queen’s Bench
Division, dated 7 February 2011, which was eligible for registration under the Act. The key issue for Brewer J was whether he should agree to the registration of the judgment without notice to Mr Robinson. Brewer J decided that it was appropriate to permit the registration of the judgment because, on the face of the documents, the judgment creditor was entitled to have the judgment registered. He noted, however, that registration of a foreign judgment was not absolute and that if the judgment debtor wished to challenge the registration he had 25 working days from the date of service of the notice of registration to lodge an application. The judgment could not be enforced against the judgment debtor until the expiry of that period.
Discussion
Did Mr Robinson have notice of the proceedings in sufficient time for him to defend the proceedings?
[20] Section 6(1)(c) of the Act provides that registration of a judgment shall be set aside if the High Court is satisfied that the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings. The section makes it clear that the rule applies notwithstanding that the proceedings may have been duly served on him in accordance with the law of the country of the original Court. I therefore put to one side r 18 of the Personal and Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1995 and the Pensions Ombudsman’s view that the documents required by the rules to be sent or delivered to Mr Robinson were duly sent and delivered to him as required by r 18.
[21] In his affidavit dated 7 December 2012, Mr Robinson has not deposed that he never received the letters from the Pensions Ombudsman addressed to him at either his Guernsey address or his Auckland addresses. All he says is that he never received or had notice of the Pensions Ombudsman’s determination “in time for me to present a defence of the proceedings”.
[22] In the course of the hearing today, Mr Robinson told me that his house in Guernsey had no letter box and lockable electronic gates. He also told me he was on holiday in Europe in October 2002, when the original notice of claim was allegedly sent. None of this was in affidavit evidence. I offered Mr Robinson an adjournment
in order to provide the Court with further affidavit evidence on condition that he pay
the costs of today’s hearing but he declined, saying he had no money.
[23] In his written submissions, Mr Robinson seems to suggest that the judgment creditor has to prove that he was served with the proceedings. Mr Robinson therefore submits that the judgment creditor is unable to prove to the satisfaction of the Court that the claim form, which was the document which commenced the Pensions Ombudsman’s investigation, was received by him for the following reasons:
(a) Personal service was not effected;
(b)Registered post or a recorded delivery postal service was not used, nor in the absence of communication from him, was there any confirmatory check made on receipt; and
(c) Service by ordinary post is not an acceptable method of service. The UK Postal Service, the Guernsey Postal Service and the New Zealand Postal Service are all unreliable as shown by statistics produced by Post Watch, the Guernsey Office of Utility Regulation and an article in the New Zealand Herald.
[24] It is my view, however, that the words “notice of those proceedings” in s 6(1)(c) of the Act does not refer in particular to the originating document, such as the claim form which commenced the Pensions Ombudsman’s investigation in the present case.1 In this case, the investigation spanned seven years. An oral hearing was not convened until November 2008. The hearing was held at the request of three of the other trustees, who attended together with representatives of the judgment creditor. The letters sent by the Pensions Ombudsman to Mr Robinson at his Guernsey address and his Auckland addresses, invited him to participate in the
process and towards the end of the investigation enclosed draft findings and invited
comments from Mr Robinson. It is my view that these letters, either individually or
1 This is affirmed by the Court of Appeal in Lane v Questnet Ltd [2009] NZCA 578, [2010] NZAR 210 at [38]-[40]. The Court held that notice of the proceeding does not require notice of a particular step in the proceeding. It just requires some notice of the action as a whole.
collectively, can amount to “notice of those proceedings” in terms of s 6(1)(c) of the Act. Furthermore, I am of the view that s 6 does not impose a burden of proof either on the judgment creditor or the judgment debtor.2 It merely requires the Court to be “satisfied”. In that regard, I am able to have regard to both evidence provided by the judgment creditor and by the judgment debtor. Furthermore, there is no specific standard of proof required. I have to be satisfied of certain factors before I can set aside registration of the judgment. If I am so satisfied, I am obliged to set aside registration.
[25] After reviewing all the documentation I am satisfied that, from at least 5 June
1999 when Mr Robinson resigned as a trustee of the Scheme until 29 September
2005, Mr Robinson ordinarily resided at The Meadows, Rue des Blicqs, St Andrew, Guernsey GY6 8YD. I am so satisfied because of the address given in the letter of resignation written by Mr Robinson together with the letter from the person who bought the property from Mr Robinson.
[26] I am also satisfied that upon moving to New Zealand, Mr Robinson resided at
30 Glen Atkinson Avenue, St Heliers, Auckland until approximately 21 March 2009. He then resided at 7 Wynsfield Gardens, St Heliers, Auckland. I am so satisfied from the information provided by the New Zealand Department of Labour, Land Transport New Zealand, New Zealand Post and the firm of private investigators.
[27] There were numerous letters sent to Mr Robinson at both his Guernsey address and his Auckland addresses. I am not persuaded by the documents and submissions supplied by Mr Robinson that each and every letter was misdelivered. For instance, the research undertaken by Post Watch, which is independent of the UK Government and Post Office and which reports to Parliament, being funded by the licensees, indicates that 54 per cent of people say that they had received misdelivered mail in the last six months and that five per cent of people put mail they had received for another house straight in the bin, while it could take people up to a week to pop a
misdelivered letter back in the post or through the right letterbox.
2 Subsequent to delivery of this oral judgment, my attention has been drawn to the High Court judgment in Office Francais D’Exportation De Materiel Aeronautique v Airwork (NewZealand) Ltd HC Auckland M948/95 14 June 1996 at 10 in which the Court was of the view that there was an onus of proof on the judgment debtor.
[28] The article in the New Zealand Herald, to which Mr Robinson also refers, notes that 834.5 million items were delivered in New Zealand in the year to 30 June
2012, an average of 16 million items a week. The report notes that of this number, there were 55,087 reported cases of undelivered mail, of which 678 were cheques. This report tells me that one letter in every 15,000 went missing, or 0.007 per cent of the total mail volume. Again, this is insufficient to persuade me that all the letters sent by the Pensions Ombudsman to Mr Robinson were misdelivered. I am accordingly of the view that he received at least some of the letters informing him of the Pension Ombudsman’s investigation.
[29] In those circumstances, and quite independently of r 18 of the Pension and Occupational Pension Schemes (Pensions Ombudsman) (Procedure) Rules 1995, I am not satisfied that Mr Robinson did not receive notice of the investigation undertaken by the Pensions Ombudsman in sufficient time to enable him to defend the proceedings.
[30] As noted, I gave Mr Robinson the opportunity to provide further affidavit evidence but he declined.
Were Mr Robinson’s rights to natural justice under s 27(1) of the New Zealand Bill
of Rights Act breached?
[31] Under this heading, Mr Robinson makes seven points in his written synopsis of submissions:
1.Natural justice is the right of every person as confirmed in s 27(1) of the New Zealand Bill of Rights Act 1990.
2. The right to be heard before a decision is made: Waitemata Health v
Attorney-General.
3. The entitlement to see documents relevant to the proceedings.
4. Entitlement to a fair hearing in a reasonable time: Article 6.1
European Convention on Human Rights.
5.The Proceedings against me were procedurally unfair – no notice of the proceedings and not heard, the alleged service of the proceedings was not good service, procedures re: Ombudsman’s determination irregular and unfair.
6.The Ombudsman failed to show reasonableness and did not ensure I had received notice of the proceedings against me: Secretary of State for the Home Department v AF, Al Rawi v The Security Service.
7.Pensions Ombudsman was not impartial or disinterested in the outcome of the decision-making process against me.
[32] The difficulty for Mr Robinson is that the New Zealand Bill of Rights Act
1990, does not have extra-territorial jurisdiction.3 It therefore cannot be used to impugn proceedings in England. Mr Robinson also refers to the European Convention on Human Rights, which is not applicable in New Zealand. If he seeks to enforce rights under that Convention, he has to do so through English Courts and/or the European Court of Human Rights. Similarly, the allegation of partiality or bias against the Pensions Ombudsman can only be litigated in England.
[33] The grounds for setting aside registration of a judgment in New Zealand are quite limited and are set out in s 6 of the Act. To the extent that Mr Robinson complains about lack of notice of the English proceedings under the New Zealand Bill of Rights Act 1990, this can only be considered under s 6(1)(c) of the Act and not under the New Zealand Bill of Rights Act itself. There are further limited grounds set out in s 6 of the Act. A registered judgment shall be set aside if, for instance, the judgment was obtained by fraud (s 6(1)(a)) or the rights under the judgment were not vested in the person by whom application for registration was made (s 6(1)(f)). A general assertion by Mr Robinson that the procedures followed in the Pensions Ombudsman’s determination were irregular and unfair does not fit within any of the grounds specified in s 6. If Mr Robinson wishes to challenge the Pensions Ombudsman’s procedures or allege that he failed to show reasonableness, then the appropriate remedy for him is an application for judicial review in England.
Does Part I of the Act apply to the judgment? Was the judgment registered in accordance with Part I of the Act?
[34] Here Mr Robinson relies on the judgment of Peters J, who set aside a judgment registered earlier by the judgment creditor on the basis that the judgment creditor had wrongly sought to register the decision of the Staines County Court
rather than that of the High Court of Justice Queen’s Bench Division. Mr Robinson
refers to the decision of Peters J in which she said:4
On the material before me I am not satisfied that there was ever jurisdiction under the Act to order registration of the County Court judgment. In those circumstances, s 6(1)(a) requires that registration be set aside.
[35] The judgment of Peters J does not however support the proposition that the judgment of the High Court of Justice, Queen’s Bench Division, was registered in contravention of Part I of the Act. Section 3 of the Act provides:
3 Application of this Part of Act
(1) This Part of this Act shall extend to the United Kingdom.
(2) If the Governor-General is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to [money] judgments given in the superior Courts of any part of [Her Majesty's] dominions outside the United Kingdom, or given in the superior Courts of any foreign country, substantial reciprocity of treatment will be assured as respects the enforcement within that part of [Her Majesty's] dominions or in that foreign country, as the case may be, of [money] judgments given in the superior Courts of New Zealand, he may by Order in Council direct—
(a) That this Part of this Act shall extend to that part of Her
Majesty's dominions or to that foreign country; and
(b) That such Courts as are specified in the Order in Council shall, for the purposes of this Part of this Act, be deemed superior Courts of that part of Her Majesty's dominions or of that foreign country.
(2A) The fact that a particular Court is not specified in an Order in Council is not taken to imply that the Court is not a superior Court for the purposes of this 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.
(3A) Nothing in paragraph (b) of subsection (3) of this section prevents a judgment given in a superior Court of Australia under which Australian tax is payable being a judgment to which this Part of this Act applies.]
(4) For the purposes of this section a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the Courts of the country of the original Court.
(5) The Governor-General may be a subsequent Order in Council vary or revoke any Order in Council previously made under this section.
[36] In Re Perkins, ex parte Perkins5 it was held that the High Court of Justice of England and Wales as a Court of unlimited jurisdiction, was a superior court of a country to which Part I of the Act extended. I respectfully agree. The comments by Peters J relied upon by Mr Robinson are explained further by the Judge at [9] as follows: 6
As I have said, notwithstanding that it applied for registration of the County Court judgment, the evidence Fairmount filed with its application was to the effect that it had subsequently obtained an order for registration of the County Court judgment in the High Court of Justice Queens Bench Division (“UK High Court judgment”), registering the County Court judgment in the High Court of Justice. It was this later order (which by definition in the Act, is a judgment for the purposes of the Act) that Fairmount should have applied to register in New Zealand, not the County Court judgment.
[37] I respectively disagree with Mr Robinson when he submits that if the order of the High Court of Justice Queen’s Bench Division was founded on the order of the Staines County Court and there was no jurisdiction under the Act to register the Staines County Court judgment, then the same principle should follow with respect to the order of the High Court of Justice Queen’s Bench Division. The case was
specifically transferred to the High Court of Justice Queen’s Bench Division with the
5 Re Perkins, ex parte Perkins High Court Whangarei CIV 2010-488-375, 25 August 2010.
6 Fairmount Trustee Services Ltd v Robinson, above n 4, at [9].
intention of it being registered in a superior court, which would then enable it to be enforced in New Zealand. This is entirely in accordance with the Act.
Is the judgment capable of being enforced in the country of the original Court?
[38] Section 4(2A) of the Act provides:
A judgment may only be enforced if, and to the extent that, at the time the proceedings for enforcement are or are to be taken, the judgment is capable of being enforced in the country of the original Court.
[39] Mr Robinson submits that the Pensions Ombudsman’s determination was void as a result of a fundamental defect in the proceedings. He submits that a fundamental defect can include a failure to serve process where service of process is required or where service of proceedings never came to the notice of the defendant at all. He further submits a fundamental defect can occur where there is a defect in the issuing of proceedings so that, in effect, the proceedings have never started or where proceedings appear to be duly issued but fail to comply with the statutory requirement.
[40] Mr Robinson submits that as he has been affected by a void order he has the right to have the judgment set aside. He submits that the House of Lords confirmed that a void order is void from the outset and no Court has jurisdiction to give legal effect to a void order no matter how unreasonable that may seem.
[41] Mr Robinson did not however develop his written submissions further to identify which particular acts are void. He did, however, in his oral submissions before me today, put to me various rules in England which he said were breached in the course of registering the judgment. Now, if he is submitting that the proceedings never came to his notice, that seems to me to be a reiteration of the first ground advanced, namely, that he did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings and did not appear in accordance with s 6(1)(c) of the Act. Initially he did not seek to explain why r 18 of the Personal and Occupational Pension Schemes (Pension Ombudsman) (Procedure) Rules 1995 is not applicable or, if it is applicable, why it has not been complied with in his case.
Those rules allow for the sending or delivery of documents required to be sent or delivered to a person at his proper address, by post.
[42] In his oral submissions, Mr Robinson referred me to r 19, which allows substituted service in the case a person outside of the UK. It seems to me however that the Pensions Ombudsman did not rely on r 19 and seek substituted service, instead following the ordinary procedures set out in r 18.
[43] I am of the view that the judgment does remain enforceable until any order to the contrary. Mr Robinson has not made any application in England to set it aside as being void. An undefined possibility that it may be void is insufficient to set aside registration of the judgment.
Conclusion
[44] Mr Robinson has not persuaded me that there any grounds, in terms of s 6 of the Act, to set aside registration of the judgment. Mr Robinson received numerous letters by the Pensions Ombudsman informing him of the investigation. Mr Robinson was personally served with the determination of the Pensions Ombudsman on 1 September 2009. In his subsequent e-mail he promised a response within 14 working days. No response has been made. No appeal has been lodged. No application for review has been filed. Mr Robinson has never identified a substantive defence to the determination that he is personally liable for maladministration of the Scheme out of which he received substantial benefits.
[45] To Mr Robinson’s benefit, as set out Mr Cowen’s affidavits in September
2012 and January 2013, the judgment has been partially satisfied by payments made by other trustees or agreement to forgo their pension benefits. Mr Cowen has now updated the situation in an affidavit sworn in May 2013. He states that the balance remaining payable is ₤156,953 plus interest at the rate of 8 per cent per annum on all amounts outstanding from 4 May 2010 to the date of judgment. The interest component of the judgment debt amounted to ₤181,208.42 as at 4 May 2013.
[46] Accordingly, I vary the order that the judgment be registered to specify the balance remaining payable. The order shall accordingly be:
That the UK High Court of Justice Queen’s Bench Division judgment dated
7 February 2011 between Fairmount Trustee Services Limited and Colin
Sydney Robinson be registered in the High Court for the ₤156,953 balance remaining payable plus interest at the rate of 8 per cent per annum on all amounts outstanding from the 4th day of May 2010 to the date of payment.
[47] Mr Robinson’s application is accordingly dismissed. Costs are payable by him on a 2B basis.
Woolford J
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