Xtra Health Pty Limited v Herbal Care New Zealand Limited
[2013] NZHC 280
•21 February 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV-2012-412-000536 [2013] NZHC 280
BETWEEN XTRA HEALTH PTY LIMITED First Judgment Creditor
ANDXTRA HEALTH NZ LIMITED Second Judgment Creditor
ANDAG HEALTH SOLUTIONS PTY LTD Third Judgment Creditor
ANDHERBAL CARE NEW ZEALAND LIMITED
First Judgment Debtor
ANDHERBAL CARE INTERNATIIONAL LIMITED
Second Judgment Debtor
ANDMYRON ROY BIERNAT Third Judgment Debtor
Hearing: Determined on the papers
Appearances: Ms Chandra for Applicants
No appearance for Respondents
Judgment: 21 February 2013
JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to registration of judgment]
[1] The applicants, on 7 March 2012, obtained various judgments against the respondents in the District Court of Queensland (“the judgment”). They apply for an order that the judgment be registered under the Reciprocal Enforcement of
Judgments Act 1934 (“the Act”).
XTRA HEALTH PTY LIMITED V HERBAL CARE NEW ZEALAND LIMITED HC DUN CIV-2012-412-
000536 [21 February 2013]
[2] When this proceeding was first called, the applicants had yet to prove service of the proceeding upon each respondent. Service has now been proved. The applicants had also not filed a certified copy of the judgment. That has now been filed.
Application under s 4 of the Act
[3] The applicants invoke s 4 of the Act, which entitles them to apply within six years after the date of the judgment, subject to proof of the prescribed matters and to the other provisions of the Act, for an order that the judgment be registered. The proviso to s 4(1) of the Act precludes registration if at the date of the application the judgment has been wholly satisfied or it could not be enforced in the country of the original Court.
[4] In support of the application, Glennis Sims, a legal secretary in the applicant’s solicitor’s law firm has deposed that to the best of her information and belief that the judgment has not been satisfied and that at the date of the application the judgment was able to be enforced in Queensland, Australia.
[5] The judgment in this case was expressed in Australian currency. The applicants have stated, pursuant to s 4(3) of the Act that they wish the judgment to be registered in the equivalent amount in New Zealand currency. Evidence has been provided pursuant to s 4(3)(b) as to the rate of exchange prevailing on the day of the application for registration. I am satisfied in relation to the orders which follow that the orders are for the New Zealand currency equivalent.
Proof of the prescribed matters
[6] By virtue of s 2 of the Act, proof of the “prescribed” means proof of the matters prescribed by rules of Court, meaning in this case the High Court Rules.
[7] The directly applicable High Court Rules are contained in Part 23 of the
Rules.
[8] I turn to deal with proof of the matters there prescribed.
[9] Rule 23.4 – this application has been correctly made by originating application.
[10] Rule 23.6 – this application has been correctly filed in the Dunedin Registry, Dunedin being the residence or place of business of each of the respondents.
[11] Rule 23.7 – the application for registration has been supported by affidavit evidence.
[12] Rule 23.8 – a certified judgment of the District Court of Queensland has been produced. The copy of the judgment bears the seal of the District Court of Queensland and is therefore a matter for judicial notice.
[13] Rule 23.10 – Ms Sims has identified the rate of interest carried by the judgment by the Law of Queensland, Australia (10 per cent per annum) as applying pursuant to s 47 Supreme Court Act 1995 (Queensland). Ms Sims deposes that the amount of interest which was due under the judgment up to the time of the application, expressed in New Zealand dollars, is $15,178.84.
[14] Rule 23.11 – in compliance with r 23.11(1) Ms Sims has deposed to the best of her information and belief that –
(a) the applicants are entitled to enforce the judgment;
(b) at the date of the application, the judgment had not been satisfied;
(c) at the date of the application, the judgment was able to be enforced in
Queensland, Australia;
(d)if the judgment were registered, the judgment would not be, or be liable to be, set aside under s 6 of the Act;
(e) the full names, and other prescribed details of the debtors, are set out
in Ms Sims’ affidavit.
(f) in compliance with the requirements of r 23.11(2), Ms Sims has deposed that the source of her information, the grounds of her belief are a combination of written information which she has obtained from the Brisbane solicitors who acted for the applicants in obtaining judgment in the District Court of Queensland and from information obtained from two websites containing relevant company and related information.
Discussion
[15] In these circumstances, I am satisfied that the applicants have proved the prescribed matters and are entitled to registration of the judgment.
[16] There will be the usual, related orders as to the period for any application to set aside the registration and as to prohibition of enforcement until after that period.
Orders
[17] I order:
(a) The judgment of the District Court of Queensland, Brisbane Registry, under no. BD 4881 of 2011, dated 7 March 2012, as between Xtra Health Pty Ltd (ACN 125936567) (First Plaintiff) and Xtra Health NZ Ltd (2378192) (Second Plaintiff) and AG Health Solutions Pty Ltd (ACN 124197057) (Third Plaintiff) on the one hand, and Herbal Care New Zealand Ltd (815687) First Defendant, Herbal Care International Ltd (855990) (Second Defendant) and Myron Roy Biernat (Third Defendant) on the other hand shall be registered.
(b)Any application to set aside the registration shall be made within 30 working days from the date of service of notice of registration of the judgment.
(c) The judgment is not to be enforced until after the expiration of the period referred to in paragraph [17](b) above.
Associate Judge Osborne
Solicitors:
Whitlock, Solicitors, PO Box 100 449, North Shore 0745
Agent: Aspinall Joel, PO Box 1384, Dunedin 9054
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