Rosemount Front Limited t/a Saxon's Estate Agents v Clarke

[2024] NZHC 2239

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2024-476-000018

[2024] NZHC 2239

UNDER

the Reciprocal Enforcement of Judgments Act 1934

IN THE MATTER

of a judgment of the County Court of the United Kingdom

BETWEEN

ROSEMOUNT FRONT LIMITED (TRADING AS) SAXON’S ESTATE AGENTS

Judgment Creditor

AND

PAUL JOHNATHON CLARKE

Judgment Debtor

Hearing:	On the papers
Counsel:	C A O’Connor for Judgment Creditor
Judgment:	9 August 2024

JUDGMENT OF PRESTON J

This judgment was delivered by me on 9 August 2024 at 2.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date……………

ROSEMOUNT FRONT LIMITED (TRADING AS) SAXON’S ESTATE AGENTS v CLARKE [2024] NZHC 2239 [9 August 2024]

Introduction

[1]    Rosemount Front Limited (trading as) Saxon’s Estate Agents (Saxon’s), applies as judgment creditor, under the Reciprocal Enforcement of Judgments Act 1934 (the Act), for registration of a default judgment (judgment) of the County Court of the United Kingdom. The judgment debtor, Paul Clarke and his wife Julie Clarke are now resident in New Zealand.

[2]    As is usual in such a case, the application is made on a without notice basis. It is supported by the affidavit of Mr O’Connor, counsel instructed on behalf of the judgment creditor.

The judgment

[3]The debt subject of the judgment is in respect of unpaid real estate agent’s fees.

[4]    Saxon’s acted as estate agent on the successful sale of the Clarkes’ United Kingdom property in Weston-super-Mare. The sale occurred in June 2021. The Clarkes did not pay the agent’s fees, as agreed in a written contract between the parties, in the amount of 1.5 per cent of the sale price, of £5,760 (incl VAT).

[5]    On 8 August 2022, judgment by default was entered for Saxon’s in the amount of £7,378.82, representing the fees debt including interest to date of judgment, and costs.

Further steps

[6]    The application came before Eaton J as duty Judge on 8 July 2024. Eaton J directed that counsel for the judgment creditor, Mr O’Connor, file a supporting memorandum addressing issues including proof of service of the original English proceedings upon the judgment creditor, confirmation that Mr Clarke is at the Geraldine address recorded on the formal judgment and any ancillary orders as might be made under s 5 of the Act. That memorandum was filed.

[7]    As duty Judge on 19 July 2024 I convened a further teleconference. I directed that Mr O’Connor file confirmation of the exchange rate as at 8 July 2024 as set out in the application, and a memorandum as to costs.1 That has now occurred.

[8]    Counsel’s further memorandum explains that Mr O’Connor made enquiry of the Bank of New Zealand for a bank certificate confirming exchange rate between British and New Zealand currencies on the relevant date. However, counsel was advised that as the bank no longer holds foreign currency it does not have access to a means of determining exchange rates other than those available on general websites. Further, the bank does not provide documents certifying the rate of currency exchange for any particular day or time. Counsel provided a copy of the requisite information by screenshot of the exchange rate on 8 July 2024 as shown upon the website As the learned authors of McGechan on Procedure identify, historically it has been acceptable for an applicant’s affidavit to annex letters or a bank certificate giving the exchange rate information required.2 It would appear technological advances now require recognition of alternative means of determining exchange rates, with reference to digital information from authenticated sources including reputable websites.

Grounds for registration

[10]   Having reviewed the information in counsel’s further memorandum, I am satisfied on the basis of the information now before me that grounds for registration are made out. It is open for Mr Clarke to apply to set aside the registration order, should he be advised there are grounds to do so.3

[11]   I am also satisfied that for the reasons set out in counsel’s memorandum of  18 July 2024 the judgment creditor should be exempt from filing security for costs.

1      Reciprocal Enforcement of Judgments Act 1934, s 4(6).

2      See Jessica Gorman and others McGechan on Procedure (online ed, Thompson Reuters) at [HR23.10.02]. The applicant’s solicitor may, as here, depose to the rate of interest (if any) carried by the judgment by the law of the country under which it is given: r 23.10(b).

3      Reciprocal Enforcement of Judgments Act, ss 6 and 7. In that sense, the registration is provisional for enforcement purposes: Hunt v BP Exploration Co (Libya) Ltd [1980] 1 NZLR 104 at 122. See, also High Court Rules 2016, pt 23.

Result

[12]There is an order:

(a)Granting leave to register the judgment with effect from 8 July 2024.

(b)That the sum payable under the judgment is NZD$15,347.94.

(c)That interest up to the time of registration is payable in the amount of NZD$456.96.

(d)Costs on the application for registration are awarded in favour of Saxon’s, on a 2B basis together with reasonable disbursements to be fixed by the Registrar.

[13]The registrar is authorised to seal judgment in terms accordingly.

[14]I further order:

(a)That notice of the registration of the judgment be personally served on the judgment debtor.

(b)That any application to set aside registration of the judgment is to be filed in this Court within 21 days from the date of service in [12](a) above.

(c)Enforcement of the judgment is prohibited until following expiry of the period in [12](b) above.

………………………………………

Preston J

Solicitors:
Gresson Dorman & Co, Timaru