Ulster Bank Ireland Limited v Clancy

[2014] NZHC 1939

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000509 [2014] NZHC 1939

IN THE MATTER OF

the Judicature Act 1908

AND

IN THE MATTER OF

two judgments of the High Court of the
Republic of Ireland:

(a) Record No. 2013/1150 S between Ulster Bank Ireland Limited, plaintiff, and Declan Clancy and Paul Gallagher, defendants, on 28 August 2013;

(b) Record No. 2013/3587 S between Ulster Bank Ireland Limited, plaintiff, and Declan Clancy and Louise Clancy, defendants, on 14 February 2014

BETWEEN

ULSTER BANK IRELAND LIMITED Judgment Creditor

AND

DECLAN CLANCY Judgment Debtor

Counsel's

Memorandum:

24 July 2014

Appearances:

M Sandelin for Judgment Creditor
No appearance for Judgment Debtor

Judgment:

18 August 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

under s 56 Judicature Act 1908

[1]      The creditor (Ulster Bank) obtained two judgments against the debtor (Mr

Clancy) in the High Court of the Republic of Ireland on 28 August 2013 and 14

February  2014  (the  judgments).     Ulster  Bank  applies  for  registration  of  the judgments pursuant to s 56 Judicature Act 1908.

ULSTER BANK IRELAND LIMITED v CLANCY [2014] NZHC 1939 [18 August 2014]

The jurisdiction

[2]      Section 56 Judicature Act provides:

56Memorials of judgments obtained out of New Zealand may be registered

(1)       Any person in whose favour any judgment, decree, rule, or order, whereby any sum of money is made payable, has been obtained in any Court of any of Her Majesty's dominions may cause a memorial of the same containing the particulars hereinafter mentioned, and authenticated  by  the  seal  of  the  Court  wherein  such  judgment, decree, rule, or order was obtained, to be filed in the office of the High Court; and such memorial being so filed shall thenceforth be a record of such judgment, decree, rule, or order, and execution may issue thereon as hereinafter provided.

(2)       Every seal purporting to be the seal of any such Court shall be deemed and taken to be the seal of such Court until the contrary is proved, and the proof that any such seal is not the seal of such Court shall lie upon the party denying or objecting to the same.

(3)       Every such memorial shall be signed by the party in whose favour such judgment, decree, rule, or order was obtained, or his attorney or solicitor, and shall contain the following particulars, that is to say: The names and additions of the parties, the form or nature of the action or other proceeding, and, when commenced, the date of the signing or entering-up of the judgment, or of passing the decree, or of making the rule or order, and the amount recovered, or the decree pronounced, or rule or order made, and, if there was a trial, the date of such trial and amount of verdict given.

(4)       The Court or any Judge thereof, on the application of the person in whose favour such judgment, decree, rule, or order was obtained, or his solicitor, may grant a rule or issue a summons calling upon the person against whom such judgment, decree, rule, or order was obtained to show cause, within such time after personal or such other service of the rule or summons as such Court or Judge directs, why execution  should  not issue  upon  such judgment,  decree,  rule, or order, and such rule or summons shall give notice that in default of appearance  execution  may  issue  accordingly;  and  if  the  person served with such rule or summons does not appear, or does not show sufficient cause against such rule or summons, such Court or Judge, on  due  proof  of  such  service  as  aforesaid,  may  make  the  rule absolute, or make an order for issuing execution as upon a judgment, decree, rule, or order of the Court, subject to such terms and conditions (if any) as such Court or Judge thinks fit.

(5)       All such proceedings may be had or taken for the revival of such judgment, decree, rule, or order, or the enforcement thereof by and against persons not parties to such judgment, decree, rule, or order as may be had for the like purposes upon any judgment, decree, rule, or order of the Court.

[3]      As the editors of McGechan on Procedure note, the basic effect of s 56 of the Act is to provide for the entering and enforcement in New Zealand of judgments and orders for payments of sums of money made by Courts of other Commonwealth countries,  where  the  Reciprocal  Enforcement  of  Judgments Act  1934  does  not apply.1

[4]      By s 4 Commonwealth Countries Act 1977 provisions for registration operate with respect to the Republic of Ireland as if it were a Commonwealth country and not a foreign country.

[5]      The heading to s 56 of the Act refers to memorials of judgments being “registered”, although the latter word does not appear in the section itself.   The section  itself  (through  the  provisions  of  ss  (1)  to  (3))  establishes  a  procedure whereby a foreign judgment becomes a “record” with consequences of execution under s 56(4).   Section 56(1) makes it clear that the judgment creditor, subject to satisfying the requirements of s 56, has control of the process – s 56(1) provides that it is the judgment creditor who “causes” a memorial to be filed, with the memorial “thenceforth” being the record of the judgment.

The statutory requirements

Memorial of judgment

[6]      Section 56(1) does not define (other than by reference to its contents and signature) what is required by way of a “memorial” of the foreign judgment.  I take the term “memorial” to have the meaning in Black’s Law Dictionary:2

memorial,  n.  (17c)  1.  An  abstract  of  a  legal  record,  esp.  a  deed; MEMORANDUM (1).

[7]      The use of the term “memorial” and the scheme of recording a memorial has existed in New Zealand legislation from early times.3

1      McGechan on Procedure (online looseleaf ed, Brookers) at s 56.

2      B Garner Black’s Law Dictionary (9th ed, West, 2009).

3      The predecessor provision was enacted in 1882: see The Supreme Court Act 1882 (No 29), ss

27–29.  These provisions effectively reproduced the provisions of the Australasian Creditors Act
1858 (Nos 21 and 22).   (See to similar effect Australian colonies legislation: e.g. Foreign
Judgments Act 1856 (No 13) (WA).

The requirements

[8]      The memorial must:

(a)      relate to a judgment, decree, rule, or order whereby a sum of money is made payable (s 56(1));

(b)be authenticated by the seal of the Court wherein the judgment was obtained (s 56(1)) (with any seal purporting to be the seal of the foreign Court presumed to be the seal of the foreign Court, s 56(2));

(c)         contain the following particulars (s 56(3)):

The  names,  addresses,  and  occupations  of  the  parties.    (The reference in s 56(3) to “additions” is a reference to the addresses

and occupations).4

The form or nature of the proceeding;

The date when the proceeding was commenced;

The date of the signing or entering-up of the judgment;   The amount recovered;

The date of the trial (if any).

4      The expression “addition” is ancient, and explained in Stroud’s Judicial Dictionary of Words and Phrases 8th ed – “Addition”, signifieth a title given to a man besides his Christian and Sir-name, shewing his Estate, Degree, Mystery, Trade, Place of Dwelling, &c”. (Cowell: see also Termes de la Ley).   See also Vacuum Oil Co Proprietary Ltd v Maxwell [1926] NZLR 625 (SC) per Stringer J at 625, dismissing a summons on the grounds inter alia that the memorial did not state the parties’ occupations at all and that their “addresses” were only by reference to city names. The authority of Vacuum Oil Co (HC) was doubted by Henry J in Gordon Pacific Developments Pty Ltd v Conlon [1993] 3 NZLR 760 at 767-768 in relation to whether the requirement of particulars of occupation under s 56(3) is mandatory. His Honour nevertheless considered “justified” criticism of the failure to observe the term of the statute.

Satisfaction of the requirements in this case?

[9]      Ulster Bank has filed five documents:

(a)       An Originating Application for Registration of Foreign Judgment; (b)           An Affidavit exhibiting copies of the judgment;

(c)       A draft “Order for Registration of Foreign Judgment”;

(d)      A Memorandum of Counsel in Support; (e)     A Summons to Debtor.

[10]     The judgments come under s 56 Judicature Act as they were obtained in the High Court of Ireland (s 56(1) Judicature Act and s 4 Commonwealth Countries Act).  The judgments contain orders for the payment or recovery of sums of money (s 56(1)).

[11]     The copies of the judgments exhibited in the affidavit of Megan Lynch are stated to be “duplicates” but appear to be photocopies.  Accordingly, at present it appears that the s 56(1) requirement as to memorials “authenticated by the seal of the Court” does not appear to have been met.   The presumption of regularity under s 56(2) does not arise.

[12]     The creditor has filed a memorial signed by the creditor or its solicitor, as required by s 56(3).

Issues in this case

[13]     There are two issues with what the Ulster Bank has filed.

[14]     First, there is an issue as to the form adopted.  Ulster Bank has not filed a memorial of the judgments as such.  Rather, it has filed an originating application for registration of the foreign judgments together with supporting evidence and a draft “order for registration of foreign judgments”.  It has also filed a “summons” in which

the  solicitor  in  fact  applies  for  an  order  that  a  summons  issue  (under  s  56(4) Judicature Act).  There has been, as I have stated, no memorial filed so as to become a “record”.   The second step  which  the creditor has  in  mind  (the issuing of a summons pursuant to s 56(4)) is properly covered by its originating application.5

[15]     The second issue in relation to a memorial of judgment is the absence of certain of the required particulars.   Even had particulars provided in various documents filed all been encompassed within a memorial, at least three sets of

particulars are not apparent:

while the documents filed provide the names and addresses of the parties,

they do not provide their occupations;

there  is  no  succinct  statement  as  to  the  form  or  nature  of  the  two proceedings in which the judgments were obtained (although there is reference in one of the orders to a “Summary Summons” which may give some indication of the formal nature of the proceeding but is less than

definitive;

there does not appear to be any reference to the date on which either

proceeding was commenced.

[16]     Ulster Bank’s copies of judgments do refer to other particulars, being the dates of signing and perfection (which appear to be the same), the amounts adjudged to be owing, and the dates of the hearings of the two proceedings (being the same date as the judgments).

[17]     Accordingly, from the documents filed as a whole it is possible to identify some but not all of the particulars required by s 56(3) of the Act.  That said, such

particulars as are provided are not contained in a single memorial filed as a record.

5      The  originating application  procedure for  the  issuing  of  a  summons arises  under  s  56(4) Judicature Act 1908 and r 19.2(k) High Court Rules.

Precedent memorial

[18]     The filing of a memorial to become a record under s 56 Judicature Act 1908 is a comparative rarity.  I suspect that the procedure in this case went awry precisely because the procedure is rarely adopted.   The  precise requirements in  terms of documents and steps is not spelt out in the current versions of Sim’s Court Practice or McGechan on Procedure – I commend to the authors of those publications the addition of a more detailed commentary which might prove of great assistance to those practitioners called upon to invoke s 56 of the Act.

[19]     Having  regard  to  the  unusual  concept  of  a  “memorial”  I  attach  to  this judgment a copy of the memorial filed as a record in Autoterminal.com UK Ltd v Croy.6   It exemplifies a proper form of memorial.

Adjournment

[20]     I adjourn the proceeding to a telephone conference at 9.00 am, 25 September

2014 (Associate Judge Osborne).

[21]     The purpose of the adjournment is to enable Ulster Bank to file a memorial or memorials of the two judgments authenticated by the seal of the High Court of the Republic of Ireland.

[22]     The  consideration  of  the  memorials  as  documents  to  be  recorded  is  the province of the Registrar.   It does not require an examination or judgment on the merits of the foreign judgment.7

[23]     The form of “order for registration of foreign judgments” submitted by Ulster Bank’s solicitors for consideration appears to assume that there will be a period after the sealing of a memorial in which the debtor may apply to “set aside registration of

the judgments”.   I reserve leave to counsel to make further submissions in that

6      The memorial was subsequently the subject of discussion in Autoterminal.com UK Ltd v Croy HC Auckland CIV-2005-404-3867, 20 December 2005 per Ellen France J in which an order to issue execution under s 56(4) was under challenge.  The memorial itself was discussed at [3] without criticism.

7      Platt v Siegel [1918] GLR 70; McGechan on Procedure (online looseleaf ed, Brookers) at

[J56.03(1)].

regard.  For now, it appears that the submitted document contains a misapprehension as to the future process.  The process open to a debtor after the memorial is filed arises through response to a rule or summons and is provided in s 56(4).  The debtor under s 56(4) has the right to show sufficient cause as to why a rule or summons should not proceed.

[24]     I infer that what has occurred in this case is that counsel for Ulster Bank has reasoned by analogy that the procedures under sub-part 1 of Part 23 of the High Court  Rules  which  apply  to  enforcement  under  Reciprocal  Enforcement  of Judgments Act, including as to challenges to registration, should apply equally to the process of sealing memorials under s 56 Judicature Act. That is not the case.

[25]     The adjourned date is for case management purposes.  I anticipate that before the adjourned date, counsel will provide such additional or amended documentation as is appropriate, supported by a memorandum as to any submissions which arise from  observations  in  this  judgment  or  by  way  of  explanation  of  the  further

documents filed.  Such documents are to be referred to me in chambers.

Solicitors:

MinterEllisonRuddWatts, Auckland

Associate Judge Osborne