The Crossle Car Company Limited v Fitzpatrick

[2024] NZHC 2064

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-001736

[2024] NZHC 2064

UNDER

the Reciprocal Enforcement of Judgments Act 1934

IN THE MATTER OF

a Judgment of the High Court of Justice in Northern Ireland Kings Bench Division

BETWEEN

THE CROSSLE CAR COMPANY LIMITED

Judgment Creditor

AND

MICHAEL DAVID FITZPATRICK

Judgment Debtor

Hearing:	On the papers
Counsel:	M W Swan for the Judgment Creditor
Judgment:	26 July 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 26 July 2024 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Molloy Hucker, Auckland

THE CROSSLE CAR COMPANY LIMITED v FITZPATRICK [2024] NZHC 2064 [26 July 2024]

Introduction

[1]                 The applicant, The Crossle Car Company Ltd, has filed an originating application without notice for registration of a judgment of the High Court of Justice Northern Ireland King’s Bench Division obtained by the applicant against Michael Fitzpatrick. Mr Fitzpatrick’s last known address is in Auckland, New Zealand.

[2]                 In support of its application, the applicant has filed an affidavit of Clare Catherine Campbell (dated 4 July 2024), and an affidavit of Thomas Edmund William James (dated 10 July 2024).

Background

[3]                 The  applicant  commenced  proceedings   in   Northern   Ireland   against   Mr Fitzpatrick on 16 May 2023.

[4]                 On 29 June 2023, the applicant engaged a process server in New Zealand to serve the proceedings on Mr Fitzpatrick. The process server was able to speak with Mr Fitzpatrick by phone. Mr Fitzpatrick indicated that he was living in Europe and had no intention of returning to New Zealand. He also confirmed that he continues to use his email address.

[5]                 The applicant obtained an order granting leave for Mr Fitzpatrick to be served by email and the proceedings were served on 11 October 2023.

[6]                 Mr Fitzpatrick did not enter an appearance and the applicant obtained judgment by default. On 22 February 2024, the High Court of Justice Northern Ireland King’s Bench Division ordered that Mr Fitzpatrick pay £90,000 together with interest and costs (the Foreign Judgment).

[7]                 On 2 July 2024, the applicant again engaged the process server to contact   Mr Fitzpatrick. Attempts were made to contact Mr Fitzpatrick by phone and email and an email was sent to his email address informing him that there are documents to be served on him. Mr Fitzpatrick did not respond.

[8]                 The applicant now applies without notice for registration of the Foreign Judgment under the Reciprocal Enforcement of Judgments Act 1934 (the Act).

Registration of foreign judgments

[9]                 Part 1 of the Act extends to the United Kingdom1 and applies to money judgments of a senior court of the United Kingdom if the judgment is final and conclusive as between the parties and there is a sum payable.2 The High Court of Justice in Northern Ireland King’s Bench Division is a senior court of the United Kingdom.

[10]             A judgment creditor may apply to the Court within six years after the date of the judgment to have the judgment registered.3 The Court must, subject to proof of the prescribed matters and to the provisions of the Act, order the judgment be registered.4 The judgment must not be registered if it has been wholly satisfied or it could not be enforced in the country of the original court.5

[11]             Part 23 of the High Court Rules 2016 (HCR) applies to enforcement of judgments under the Act. An application for registration of a foreign judgment may be made without notice to the judgment debtor.6 An application must be supported by one or more affidavits.7 The foreign judgment must be attached as an exhibit to an affidavit filed in support of the application.8 Judicial notice must be taken of any seal or signature by which a copy of a foreign judgment is verified and which purports to be the seal of the court.9 The affidavit must include the rate of interest carried by the judgment by the law of the country under which it is given10 and the amount of interest that, by that law, will become due under the judgment up to the time of the application.11

1      Reciprocal Enforcement of Judgments Act 1934, s 3(1).

2      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 as per the Reciprocal Enforcement of Judgments Act 1934, s 3(3)(b).

3      Section 4(1).

4      Section 4(1).

5      Section 4(1)(a) and (b).

6      High Court Rules 2016, r 23.4(2).

7      Rule 23.7.

8      Rule 23.8.

9      Rule 23.9.

10     Rule 23.10(b)

11     Rule 23.10(c)(ii).

[12]The affidavit filed in support of an application for registration must state:12

(a)that the applicant is entitled to enforce the judgment;

(b)that the judgment has not been wholly or partially satisfied;

(c)that the judgment can be enforced in the country of the original court;

(d)that if the judgment were registered, it would not be liable to be set aside under s 6 of the Act; and

(e)the full name, title, trade or business, and the usual or last known place of abode of the judgment creditor and the judgment debtor respectively.

[13]             The deponent of the affidavit must also specify the source of the person’s information and the grounds for their belief.13

Are the procedural requirements for registration of the foreign judgment met?

[14]             The applicant has filed the affidavit of Ms Campbell attaching, among other things, the Foreign Judgment. The Foreign Judgment is stamped with the seal of the Court of Judicature Northern Ireland, being the seal of the senior courts of Northern Ireland.

[15]             The application indicates that the applicant wishes the Foreign Judgment to be registered in the currency of Northern Ireland (Pound Sterling).  The  affidavit  of  Ms Campbell includes the rate of interest under the law of Northern Ireland and the amount of interest payable up to the time of the application.

[16]             The affidavit of Ms Campbell states, to the best of her information and belief, the matters specified under r 23.11(1). Ms Campbell also specifies the source of her information and the grounds of her belief as required by r 23.11(2).

12     Rule 23.11(1).

13     Rule 23.11(2).

[17]             I am therefore satisfied that the prescribed requirements for registration of the Foreign Judgment are met.

Should orders be made for substituted service of the notice of registration?

[18]             The applicant applies for orders that personal service be dispensed with, and service be effected by emailing the notice of registration to Mr Fitzpatrick’s email address.

[19]             Notice in writing of the registration of a foreign judgment must be served personally on the judgment debtor unless some other mode of service is ordered by the court.14 If the judgment debtor is out of New Zealand, the notice may be served without the leave of the court. 15

[20]             If reasonable efforts have been made to serve a document by a method required under the HCR and the document cannot be promptly served, the court may direct that instead of service, specified steps be taken that are likely to bring the document to the notice of the person to be served; and that the document be treated as served on the happening of the specified event.16

[21]             I am satisfied that the affidavit of Mr James, the process server, discloses that reasonable efforts have been made to notify Mr Fitzpatrick that there are documents to be served on him. Those efforts include phone calls, emails and visits to properties known to be linked to Mr Fitzpatrick. Mr Fitzpatrick has indicated that he has moved to Europe and has no intention of returning.

[22]             Mr James, in his report dated 27 July 2023 annexed to his affidavit, has suggested methods for service beyond sending an email, including sending private messages to Mr Fitzpatrick’s Instagram and Facebook profiles. I consider that service should be effected by sending the notice of registration to known electronic addresses of Mr Fitzpatrick.

14     Rule 23.18(1) and (2).

15     Rule 23.18(3).

16     Rule 6.8(1).

Result

[23]The application is granted. I make the following orders:

(a)The Foreign Judgment be registered pursuant to s 4(1) of the Act.

(b)Service of the Notice is to be effected on Mr Fitzpatrick by:

(i)emailing the Notice to [Redacted];

(ii)sending the Notice by private message to Mr Fitzpatrick’s Instagram profile;17 and

(iii)sending the Notice by private message to Mr Fitzpatrick’s Facebook profile.18

(c)Service is deemed to be effected on Mr Fitzpatrick on the applicant taking the steps set out at [24(b)].

(d)Costs are reserved.

Tahana J

17     At the profile specified at [13(b)] of Mr James’ report dated 27 July 2023.

18     At the profile specified at [13(c)] of Mr James’ report dated 27 July 2023.