Yoonwoo C & C Development Corp v Huh

[2023] NZHC 1395

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-664

[2023] NZHC 1395

BETWEEN

YOONWOO C & C DEVELOPMENT CORP

Plaintiff

AND

JAE HO HUH

Defendant

Hearing:	22 – 26 August 2022
Appearances:	A J B Holmes & N Foulis for Plaintiff Defendant in Person
Judgment:	6 June 2023

JUDGMENT OF DUFFY J

This judgment was delivered by me on 6 June 2023 at 2.15 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Loo & Koo, Newmarket, Auckland

Counsel:
A J B Holmes & N M Foulis, Auckland

YOONWOO C & C DEVELOPMENT CORP v JAE HO HUH [2023] NZHC 1395 [6 June 2023]

[1]    The plaintiff, Yoonwoo C & C Development Corp, (Yoonwoo) seeks to enforce what it contends are two foreign judgments of the Republic of Korea that are capable of enforcement under this Court’s common law jurisdiction for enforcement of foreign judgments. The defendant, Jae Ho Huh, who represents himself, opposes this action on the ground the so-called judgments1 are not capable of such registration.

[2]    The legal tests for using this Court’s inherent jurisdiction under the common law to enforce foreign judgments are well established. It is common ground that the subject judgments are not capable of registration under either the Reciprocal Enforcement of Judgments Act 1934 or s 56 of the Judicature Act 1908.2

[3]    There are two key issues here: (a) whether the judgments are time barred, which is a complete answer to their enforceability; and (b) if they are not time barred whether they meet the relevant legal tests for enforcement under the common law.

Are the judgments time barred?

[4]    I am going to deal with the time bar issue first because even if the legal tests are met if the enforcement action falls outside the relevant limitation period that is the end of the matter. There is no discretion to extend the limitation period.3

[5]    It is common ground that the relevant legislation is the now repealed Limitation Act 1950 (LA 1950).4

[6]The relevant passages of the LA 1950 are as follows:

4 Limitation of actions of contract and tort, and certain other actions –

1      For ease of reference I shall refer to them as judgments.

2      The Reciprocal Enforcement of Judgments Act 1934 provides for registration of foreign judgments of certain specified countries none of which includes the Republic of Korea. Section 56 of the now repealed Judicature Act 1908 was in force at the time the subject judgments were delivered. This provision provided a self-contained regime for enforcing judgments obtained in any court of Her Majesty’s Dominions, which therefore excludes the Republic of Korea. The latter’s successor is now to be found in the Senior Courts Act 2016, s 172.

3      Hodge v Residual Health Management Unit (2000) 15 PRNZ 85 (HC).

4      The two Korean judgments were delivered on 9 May 2010. The Limitation Act 1950, s 2A provides that this Act is to apply despite its repeal to actions based on acts or omissions before 1 January 2011.

(1)   Except as provided in this Act, the following actions shall not bankrupt brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say –

(a)Actions founded on simple contract …

…

(4) An action shall not be brought upon any judgment which has been obtained subsequent to the commencement of this Act after the expiration of 12 years from the date on which the judgment became enforceable …

There is no definition of “judgment” in this Act.

[7]    It is not in dispute that in principle a judgment creditor of an unregistered foreign judgment in personam may bring a common law action for recovery in this Court;5 the question is precisely what that action is and accordingly the applicable limitation period.

[8]    Three options are in contention here. The first is proceedings in contract for recovery of a debt. As will be seen from the authorities, this is the traditional way by which foreign judgments were enforced under the common law. The limitation period for this action under LA 1950, s 4(1)(a) is six years. The second option is proceedings to enforce a judgment. As will be seen from the discussion herein this cause of action was used to enforce domestic judgments and it still is used to enforce registered foreign judgments.6 The limitation period for this action under the LA 1950, s 4(4) is 12 years. The third option is an amalgam of the other two options. It relies on contract/debt as the cause of action to establish liability, but then applies the limitation period s 4(4) applied to enforcement of judgments.

[9]    Mr Huh contends the first is the appropriate option. Yoonwoo contends for option two or three. Its amended statement of claim pleads the requisite elements for common law enforcement of unregistered foreign judgments. In its opening

5      Van Wyl v Engeler [1998] 3 NZLR 416 at 420 (CA) affirmed in Michael Wilson & Partners v Sinclair [2016] NZCA 376, [2016] NZAR 1186 at [27]. Judgments in personam re judicial determinations of the existence of rights against a person; see Rubin v Eurofinance SA [2012] UKSC 46, [2013] 1 AC 236 at 271.

6      In common law jurisdictions today enforcement of domestic judgments is typically done using the enforcement mechanisms in procedural rules such as the New Zealand High Court Rules.

submissions it acknowledged the “obligation to pay an unregistered foreign judgment is enforceable by ordinary proceedings. It effectively is an action on a debt (indebtedness assumpsit).” Yet Yoonwoo argues the limitation period is set by 4(4)  of the LA 1950. This remained its position throughout the hearing. One way of understanding this argument is to view it as meaning the liability to pay the foreign judgment is based in debt, but once the requisite elements are established the s 4(4) limitation period that applies to proceedings to enforce judgments should apply here as well. In essence, this argument questions whether the six year time limit for actions in to recover debt should inevitably apply when this type of action is the basis for recovering payment of a foreign judgment.

[10]   It is common ground that if the six-year time limit applies the subject judgments are time barred, whereas if the 12-year time limit applies they are not. So which is the appropriate option is of real importance here.7

[11]   As a preliminary point I must address Yoonwoo’s other argument that the limitation issue has already been comprehensively addressed. First, by Davison J when he gave judgment on an unopposed summary judgment application in this proceeding.8 Secondly, by Bell AJ when he set aside Davison J’s judgment on the ground Mr Huh had arguable defences available to him.9

[12]   Both Davison J and Bell AJ found that the s 4(4) 12-year limitation period applied and enforcement was not time barred. However, neither of these judgments is binding on me. The judgment of Davison J was set aside to allow Mr Huh to defend the claim against him, which includes his defence based on the s 4(1)(a) six-year limitation period being applicable here. Thus, the findings in that judgment cannot fetter any conclusions I might reach on Mr Huh’s defences. The judgment of Bell AJ found Mr Huh had arguable defences to the claim, but not the limitation defence, which Bell AJ rejected.10 However, this rejection was not determinative of the matter;

7      If this case was being decided under the Limitation Act 2010 both options would be subject to a six year limitation period.

8      Yoonwoo C & C Development Corp v Huh [2018] NZHC 3015 per Davison J.

9      Yoonwoo C & C Development Corp v Huh [2019] NZHC 2986 per Bell AJ.

10 At [51].

it was described in this way: “Strictly it is not necessary for me to deal with the limitation point, but I record some thoughts.”11

[13]   Yoonwoo relies on Bell AJ’s findings that the “implied contract” theory for enforcement of foreign judgments is entirely fictious and should no longer be considered;12 the Korean judgments are final and enforceable court orders and are not contracts;13 and the LA 1950 applies to a proceeding on a foreign judgment just as it applies to a proceeding on a domestic judgment.14

[14]   However, there is authority in both New Zealand and abroad which regards enforcement of foreign judgments under the common law as founded in contract, and therefore subject to the limitation periods for recovery of contract debts, which in this case is s 4(1)(a) of the LA 1950.

[15]   From my consideration of the authorities four key points emerge. The common law position in New Zealand, Australia, England and Canada is that foreign judgments are treated as a debt in favour of the judgment creditor which can be enforced by way of an action on a debt.15 Second, there was once a cause of action, which in some jurisdictions is increasingly obsolete, called an action on a judgment.16 The third point is that an action on a judgment only applied to domestic judgments,17 however, by registration under the relevant legislation, foreign judgments were treated as if they

11 At [48] the Associate Judge began his judgment by looking to see whether the Korean judgments met the legal requirements for enforcement in New Zealand and he found they did. The view he reached on the limitation issue took the matter no further. Yoonwoo did not appeal against the judgment. Whilst Mr Huh may not have liked the comments on the limitation issue he could not have appealed against them given his overall success in the application to set aside the judgment of Davison J. Accordingly, I do not consider the Associate Judge’s comments can provide a barrier (in terms of res judicata, issue estoppel or the rule in Henderson v Henderson regarding abuse of process) to me looking afresh and making findings on at the limitation issue.

12 At [14].

13     At [36]–[37].

14 At [51].

15 SHC Corp v O’Brien HC Wellington CP823/90, 18 April 1991; Emajor v Emajor [2016] NZHC 2022 upheld Eilenberg v Gutierrez [2017] NZCA 270, [2017] NZFLR 471; Berliner Industriebank Aktiengesellschaft v Jost [1971] 1 QB 278, [1971] 2 All ER 117 [Berliner (QB)] upheld [1971] 2 QB 463 [Berliner (CA)]; In re Flynn, deceased (no 2); Flynn v Flynn (1968) 112 Sol Jo 804; Williams v Jones (1845) 13 M&W 628, 153 ER 262; Grant v Easton (1883) 13 QBD 302; Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; and Pro Swing Inc v Elta Golf Inc [2006] 2 SCR 612.

16   Dennehy v Reasonable Endeavours Pty Ltd, above n 15; and Lowsley v Forbes [1999] 1 AC 329; an “action to enforce a judgment in my view means the same as a proceeding to enforce a judgment” as stated in s 4(4) of the Limitation Act 1950.

17     Dennehy v Reasonable Endeavours Pty Ltd, above n 15.

were a domestic judgment.18 Because unregistered/unregistrable foreign judgments are not covered by the relevant legislation, they are not treated as domestic judgments, and so an action on a judgment cannot be brought in relation to them. Thus, the limitation period for actions on a judgment do not apply to them. The fourth point is that the amalgam I have outlined in the third option does not appear to have been considered before.

New Zealand authorities

[16]   I deal with the New Zealand authorities first. Those that I am aware of, which are directly on point, are SHC Corp v O’Brien19 and Emajor v Emajor,20 appealed and reported as Eilenberg v Gutierrez.21 Kemp v Kemp is also helpful.22

[17]   In SHC Corp v O’Brien Master Williams QC (as he then was) held that the six- year time limit for actions founded on contract in s 4(1)(a) applied to common law enforcement of foreign judgments (in that case from the States of Virginia and Massachusetts, United States of America), and the s 4(4) time limit for enforcement of foreign judgments did not:23

The Limitation Act 1950 s 4(4) provides that an action shall not be brought “upon any judgment which has been obtained . . . after the expiration of twelve years from the date on which the judgment became enforceable”. “Judgment” is not defined by that Act, but it could only apply to a judgment given outside New Zealand if it expressly said so. Actions in New Zealand on a judgment given outside this country are, counsel for Dr O’Brien submitted, to be treated as actions on a contract and thus to have a limitation period of six years pursuant to the Limitation Act 1950 s 4(1). That this is the case overseas appears from [Halsbury’s Laws of England] and from the authorities of (by an odd coincidence another) Williams v Jones and Grant v Easton relied on by the English Court of Appeal in Berliner Industriebank Aktiengesellschaft v Jost. In the Berliner case, Brett MR in Grant v Easton is noted as saying “the liability of the defendant arises upon the implied contract to pay the amount of the foreign judgment”. There does not appear to be any New Zealand authority on the point.

18     Kemp v Kemp [1996] 2 NZLR 454 at 459.

19     SHC Corp v O’Brien, above n 15.

20     Emajor v Emajor, above n 15.

21 Eilenberg v Gutierrez, above n 15, at [61]. Gilbert J had anonymised the parties’ names, however, by the time the case went on appeal the circumstances warranting anonymisation had changed so the suppression orders were lifted, and the parties were identified by their true names: see at [71].

22 Kemp v Kemp, above n 18.

23 SHC Corp v O’Brien, above n 15, at 50 (emphasis added; citations omitted).

[18]   The Master rejected the plaintiff’s argument that “judgment” in s 4(4) of the LA 1950 could be read to apply to foreign judgments and that the “implied contracts” theory was an anachronistic fiction. This line of reasoning was rejected on the ground “judgment” was not defined in the LA 1950, but it could only apply to a judgment given outside New Zealand if the Act expressly said so.24 Further, relevant English authorities and Halsbury stated that liability to pay a foreign judgment was based on “implied contract” and the Master refused to depart from applying established principles.25 There was no appeal from this judgment.

[19]   In Emajor v Emajor Gilbert J considered whether a judgment of the Superior Court of Mexico and the orders it made awarding regular maintenance payments could be enforced under this Court’s common law jurisdiction.26 He found that only the accrued arrears of maintenance were capable of enforcement here as they were the only final and conclusive orders, which was one of the requirements for enforcement. (Orders in relation to the future were not final and conclusive as they were capable of change by the Mexican Court.) The accrued arrears became payable each month, at which time they created a debt that was enforceable in this Court as a contract debt. Accordingly, the six-year limitation period for contract debts applied, which meant that recovery of arrears outside the six-year period was time barred.

[20]   Emajor v Emajor was appealed. The Court of Appeal affirmed the findings limiting recovery to accrued arrears of maintenance within the six-year limitation period.27

[21]   The focus of the appeal was on whether Part 8 of the Family Proceedings Act 1980 provided an exclusive statutory code for recovery of foreign maintenance or whether it sat alongside this Court’s inherent jurisdiction to enforce foreign judgments, including maintenance awards. The Court of Appeal found the latter to be correct. In doing so it considered the basis for enforcement of foreign judgments at common law.

24 At 50. However, no authority is cited to support this proposition of law.

25 The relevant English authorities to which the Master referred were: Williams v Jones, above n 15; Grant v Easton, above n 15; Berliner Industriebank Aktiengesellschaft v Jost, above n 15; and Halsbury’s Laws of England (4th ed, 1979) vol 28 Limitation of Actions [Halsbury’s 4th ed] at [658] and [661].

26 Emajor v Emajor, above n 15.

27 Eilenberg v Gutierrez, above n 15.

[22]   In several passages in Eilenberg v Guiterrez the Court of Appeal refers to the contract/debt basis for recovery of foreign judgments under the common law; at [35] it articulated what it described as a “decisive principle” (emphasis added):

In Rubin the United Kingdom Supreme Court affirmed the doctrine of obligations as the “theoretical and historical basis for the enforcement of foreign judgments at common law”. The doctrine provides analytical clarity as to the nature of Ms Lourdes’ claim for maintenance arrears [the foreign judgment to be enforced in that case]. It is perhaps trite to observe that a foreign judgment does not have domestic force of law unless and until it is transformed by judicial or statutory machinery into a debt recoverable in New Zealand. Nevertheless, its existence creates a substantive right under domestic law in the creditor’s favour to apply for enforcement of the debtor’s obligation to pay the monies owed: enforcement of foreign judgments as debts due in this country is an important part of the High Court’s inherent jurisdiction as a superior court of general and original jurisdiction. Subject to the settled exceptions, the approach developed by the common law recognises the transnational reality of private obligations which are thus enforceable against persons and property in New Zealand. We shall return to this decisive principle.

[23]   Later the Court of Appeal discussed the shift in the principle underlying enforcement of unregistered foreign judgments from a principle based on the comity of nations to one based on recovery in contract/debt:28

The power to enforce foreign judgments was located originally in the doctrine of the comity of nations. However, two decisions in the mid-nineteenth century signalled a conceptual shift from the doctrine of comity to that of obligations. In Russell v Smyth Baron Parke held that foreign judgments create obligations enforceable in England by an action in debt analogous to those arising from a contract made abroad. …

[24]   In making the above statement the Court of Appeal expressly recorded in a footnote that the judgment it had delivered the previous year in Chen v Lin,29 (which

28 At [32] and see [33], [35], [39], [49] and [51]. See also  Von  Wyl  v Engeler, above n 5, at 420  where the Court of Appeal stated:

At common law a judgment in personam of a foreign Court of competent jurisdiction is regarded as creating a debt owed by the judgment creditor to the judgment debtor on an action which may be brought in the High Court.

This passage appears to have mistakenly reversed the references to “judgment debtor” and “judgment creditor”.

29 Chen v Lin [2016] NZCA 113, [2016] NZAR 606 at [18].

attributed this jurisdiction’s current basis to the doctrine of comity), was “contrary to settled authority”.30

[25]   Later still in Eilenberg v Gutierrez the Court of Appeal returned to discussing the jurisdictional basis for enforcement of foreign judgments under this Court’s inherent jurisdiction and reiterated that it is founded in debt:31

Our analysis starts with the conceptual foundation for the High Court’s inherent jurisdiction to enforce a foreign money judgment as creating an enforceable obligation in the nature of a debt.

[26]   In Kemp v Kemp, Tipping J considered the enforcement in New Zealand of a judgment of the York County Court in England relating to division of matrimonial property.32 A memorial of the order was lodged in the High Court under s 56 of the Judicature Act 1908, which allows for enforcement in New Zealand of judgments and orders for payments of sums of money made by Courts of Commonwealth countries. The question was whether a New Zealand court is permitted to execute a foreign judgment only in part. Master Thomson in the decision below found there was a procedural irregularity which allowed him to enforce only part of the judgment. The Master held that the judgment should be enforced but only as to a limited sum. He made the point that under s 56(4) the Court could make an order for issuing execution as upon a judgment (not the judgment). Tipping J commented:33

With respect, I consider this is reading too much into the distinction between the indefinite article and the definite article. What the section is saying is that if execution is allowed the foreign judgment is to be regarded as if it were a judgment of the High Court of New Zealand. It is not the foreign judgment which is executed but a deemed judgment of the High Court of New Zealand.

[27]   The important point is that under s 56 of the Judicature Act 1908, when a foreign judgment is registered, it is not the foreign judgment that is executed but a deemed domestic judgment.

30 The judgment in Eilenberg v Gutierrez was delivered by Harrison J sitting on a panel of three permanent Court of Appeal Judges. The judgment in Chen v Lin was delivered by Fogarty J the previous year when sitting on a panel of the Divisional Court of the Court of Appeal which included Harrison J as the presiding Judge. Accordingly the comment can be seen as a walking back of the statement in Chen v Lin rather than a disagreement between different judges on the proper basis of the jurisdiction.

31 At [49].

32 Kemp v Kemp, above n 18.

33 At 459 (emphasis original).

[28]   The Law Commission’s report Limitation Defences in Civil Cases: Update Report for Law Commission is consistent with the above authorities for the law relating to the LA 1950:34

Foreign judgments. The time limit for registration of foreign judgments in New Zealand is controlled by other legislation. Once registered, the judgment has effect as if it were a judgment of the High Court. An action may also be brought in New Zealand upon a foreign judgment – at common law a foreign judgment is treated as a simple contract debt, [Grant v Easton (1883) 13 QBD 302 (CA); Berliner Industriebank Akt v Jost [1971] 2 All ER 171, affirmed [1971] 2 All ER 1513 (CA)] so that at present the simple contract time limit applies. It is recommended that the limitation regime apply to a claim upon a foreign judgment.

[29]   Of note in this passage is, first, the explicit recognition that the contract time limit applies for unregistered foreign judgments. Secondly, there is a distinction drawn between a registered foreign judgment “which has effect as if it were a judgment of the High Court” (being treated as a deemed domestic judgment, it falls into the ‘judgment’ limitation period), and a foreign judgment enforceable at common law as if it were a contract debt.

[30]The same paper goes on to record:35

The basic common law or equitable claims include claims in debt, contract, tort, account, non-fraudulent breach of trust and claims for rent or interest. An action for a sum recoverable by virtue of an enactment can be considered alongside these. At present the time for bringing these actions is six years.

…

“Contract” includes claims upon implied obligations such as an obligation upon a foreign judgment, and some claims classified as quasi-contractual but now classified for some purposes as restitutionary.

[31]   This paper is also notable in that it was published in 2007, and so it states the law as it was close to the date in issue here (2010).

[32]   I now turn to consider how other common law jurisdictions regard the jurisdictional basis for enforcing foreign judgments at common law.

34     The Law Commission Limitation Defences in Civil Cases: Update Report for Law Commission

(NZLC MP16, 28 June 2007) at [43] (emphasis added).

35     At [71] and n 82.

English authorities

[33]Section 2 of the LA 1939 (UK) relevantly provided as follows:

(1)  The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –

(a)       actions founded on simple contract …

(4) An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable …

Like the LA 1950, the LA 1939 (UK) did not define “judgments.”

[34]   There is long standing, well settled authority that at English law a foreign judgment that is recoverable under the common law is treated as a debt, with the limitation period therefore being six years. Early explanations in English case-law of the contractual foundation of the enforcement process for foreign judgments include Williams v Jones36 and Grant v Easton.37 In Williams v Jones the Court held:38

The principle on which this action is founded is that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another a legal obligation arises to pay that sum on which an action of debt to enforce the judgment may be sustained. It is in this way that the judgments of foreign … courts are supported and enforced…

[35]   In 2012 in Rubin v Eurofinance SA the United Kingdom Supreme Court confirmed debt as the basis for enforcement of foreign judgments at common law:39

[9] The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628 at 633 per Parke B; Godard v Gray (1870) LR 6 QB 139 per Blackburn J; Adams v Cape Industries plc [1990] BCLC 479; Owens Bank Ltd v Bracco [1993] 1 LRC 762–768 per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray (1870) LR 6 QB 139, this was based on the mode of pleading an action on a foreign judgment in debt and not merely as evidence of the obligation to pay the underlying liability. But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law. It does not apply to enforcement under statute and makes no

36     Williams v Jones, above n 15.

37     Grant v Easton, above n 15.

38     Williams v Jones, above n 15, at 633.

39     Rubin v Eurofinance SA [2012] UKSC 46, [2013] 1 AC 236 at 251..

practical difference to the analysis, nor, in my judgment, to the issues on these appeals.

[36]   The Limitation Act 1980 (UK) reduced the time limit for actions to enforce judgments to six years. Once this happened there was no practical difference for limitation purposes between the two forms of recovery. Thus, the best guidance is given by the relevant English legal texts and digests on the earlier Limitation Acts, ending with the LA 1939 (UK).40

[37]   The English text Preston and Newsom: Limitation of Actions, which was written when the LA 1939 (UK) was in force, states:41

A simple contract debt incurred in a foreign country can, therefore only be recovered by action in England within six years (British Linen Co. v Drummond (1830), 10 B. & C. 903; Pardo v Bingham (1869), L.R. 4 Ch. 735). For this purpose, a foreign judgment ranks as a simple contract debt (Dupleix v De Roven (1705) 2 Vern. 540).

[38]   Later the authors refer to s 2(1)(a) of the LA 1939 (UK) with its six-year limitation for actions founded on “simple contract” and go on to state that this expression includes:42

… a certain number of miscellaneous sorts of obligations. For example, a foreign judgment (Dupleix v De Roven (1705) 2 Vern. 540; Wilson v Dunsany (1854) 18 Beav. 293) but not, of course, an English judgment to which s 2(4) applies a twelve-year period.

[39]   A later text Periods of Limitation states that s 2(4) of the LA 1939 (UK), with its time limit of 12 years, applies only to English judgments, with foreign judgments being subject to a six-year time limit:43

Action on: Not to be brought after TWELVE YEARS from the date on which the judgment became enforceable (1939 Act) s 2(4). The action which lies to enforce such obligations as are implied in a judgment is an action ex contractu, for which the period is six years in cases not covered by s 2(4); that is to say as regards actions to enforce foreign judgments, for s 2(4) deals only with actions on judgments of English courts.

40  The Limitation Act 1980 (UK) reduced the limitation period for actions to enforce judgments to  six years, thus removing any room for argument about differentiating between the enforcement of domestic and foreign judgments for limitation purposes.

41   CHS Preston and GH Newsom Limitation of Actions (3rd ed, Sweet and Maxwell, London, 1953) at 15 (emphasis added).

42 At 24–25 (emphasis added).

43 J F Josling Periods of Limitation (3rd ed, Oyez, London, 1969) (emphasis added).

[40]   Halsbury’s 3rd edition, Limitation of Actions refers to the 12-year time limit under the LA 1939 (UK) for actions to enforce judgments and also states that this applies only to English judgments.44 Earlier the text refers to common law enforcement of foreign judgments as brought under an action in simple contract, which includes an action founded on a foreign judgment.45 The subsequent related 4th editions  of  Halsbury,  which  were  published  shortly  before  the  repeal  of  the LA 1939 (UK) state the same.46

[41]   In 1968 Plowman J in re Flynn, deceased (no 2); Flynn v Flynn was invited by counsel for a judgment creditor to read “judgment” in s 2(4) of the LA 1939 (UK) to include foreign judgments,  which  would  have  avoided  the  six-year  time  bar  of s 2(1)(a).47 The Judge refused, finding instead that the 12-year time limit in s 2(4) was generally understood to relate only to English judgments. The result was that a claim in England to recover judgment sums of $31,750 and $300,000 awarded in two judgments from the United States of America was unsuccessful because the claim was time barred by s 2(1)(a). The report of this judgment in the Solicitors’ Journal records as follows:48

After considering the authorities his lordship said it was clear that an action upon the obligations which arose out of a foreign judgment was an action upon a simple contract. ‘Judgment’ in s 2(4) [Limitation Act 1939 (UK)] meant an English judgment and not a judgment of a foreign court. That appeared to have been recognised for at least 250 years, and it was far too late to conclude otherwise.

[42]   Later in Berliner Industriebank Aktiengesellschaft v Jost [Berliner] Brandon J expressly referred to s 2(4) of the LA 1939 (UK) 1939 being applicable “to actions on English judgments”.49 Berliner involved an attempt to recover money owed under a German judgment.

44     Halsbury’s Laws of England (3rd ed, 1958) vol 24 Limitation of Actions [Halsbury’s 3rd ed] at [418]; and see Halsbury’s 4th ed, above n 25, at [658].

45     Halsbury’s 3rd ed, above n 44, at [385]; and see Halsbury’s Laws of England (3rd ed, 1954) vol 7 Conflict of Laws at [249].

46     Halsbury’s 4th ed, above n 25, at [658]; and Halsbury’s Laws of England (4th ed, 1974) vol 8 Conflict of Laws at [715].

47     In re Flynn, deceased (no 2); Flynn v Flynn (1968) 112 Sol Jo 804.

48     At 804 (emphasis added).

49     Berliner (QB), above n 15, at 293.

[43]   Counsel on both sides in Berliner were agreed the six-year limitation period for debt recovery was to be applied rather than rather than the 12-year time limit for enforcement of a judgment.50 I think this demonstrates their recognition of the weight of authority for contract providing the basis for recovery of these type of judgments and the references to “judgment” in s 2(4) meaning “English” judgments. I do not think their agreement can be read as an indication the plaintiffs had erroneously overlooked available arguments based on the 12-year time bar in s 2(4) setting the correct time limit.51

[44]   Berliner went on appeal.52 In the Court of Appeal (England and Wales) the panel was split on whether the six year time limit for enforcement commenced in 1958 on delivery of the foreign judgment in its home country (the majority) or 1964 which was when execution of the judgment in its home country was allowed (the minority).53 If it was the earlier date the six-year time limit of s 2(1)(a) barred recovery in England, whereas, if it was the later date the claim was still within the six-year limit. The Court of Appeal would have been aware from Brandon J’s judgment of the reference to s 2(4) and its application being to English judgments. Had there been any possibility of the 12-year time limit in s 2(4) being seen to apply it is likely someone would have raised this as a potential answer to the bar to recovery that the six-year time limit posed. No- one did.

Australian authorities

[45]   The question of the appropriate time limit to apply to enforcement of foreign judgments under the common law has also troubled the Australian courts. In Dennehy v Reasonable Endeavours Pty Ltd the Federal Court of Australia considered limitation periods relating to enforcement of judgments in relation to the Limitations of Actions Act 1958 (Vic), which closely reflects ss 4(1)(a) and 4(4) of the LA 1950.54 The relevant provisions of the Victorian Act are:

50     At 285.

51     Compare Davison J’s comments in Yoonwoo C & C Development Corp v Huh, above n 8, at [44].

52     Berliner (CA), above n 15.

53     The intervening period between 1958 and 1964 in Germany meant execution was delayed by German bankruptcy provisions.

54     Dennehy v Reasonable Endeavours Pty Ltd, above n 15.

5 Contracts and torts

(1)  The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued-

(a)        ... actions on a simple contract (including contract implied in law) …

…

(4) An action shall not be brought upon any judgment after the expiration of fifteen years from the date on which the judgment became enforceable.

…

(7) … an action shall not be brought to recover an arrears of interest in respect of any sum of money whether payable in respect of a speciality, judgment, legacy, mortgage or otherwise, or any damages in respect of such arrears, after the expiration of six years after they became due.

Like the LA 1950 and the LA 1939 (UK), the Victorian Act did not define “judgments.”

[46]   The question in Dennehy was not directly on point, but the Court entered into a discussion of the relevant provisions. The issue was whether the limitation periods in s 5(4), which barred an action on any judgment, or s 5(7), which barred an action to recover arrears of interest due on money payable under a judgment, would apply to prevent execution on a judgment for the principal debt or interest, as the case may be.

[47] The Court identified three categories of action on a judgment: (a) an action to enforce a foreign judgment; (b) an action which is based on an existing judgment debt; and (c) proceedings which may or may not amount to “actions”, namely proceedings by way of enforcement such as writs of execution. The Court was primarily concerned with whether ss 5(4) and 5(7) only applied to the commencement of a new proceeding or action on a judgment (the second category) or whether the provisions were also concerned with execution of a judgment (the third category). During its considerations of these questions the Court touched on the first category, enforcement of foreign judgments. In relation to them the Court noted that it may be necessary to distinguish between an action on a foreign judgment commenced by writ and the enforcement of a foreign judgment after it has been registered under legislation such as the Foreign Judgments Act 1962 (Vic).

[48] Regarding foreign judgments that were not registerable under the Foreign Judgments Act (Vic), the Court referred to the seeming acceptance that actions to enforce those judgments were governed by s 5(1)(a) and not s 5(4). This was said to be due to such actions being treated as actions for a simple contract debt. As authority for this the Court cited Williams v Jones55 and Grant v Easton.56 On the other hand, the Court’s view was that a judgment registered under the Foreign Judgments Act (Vic) or an equivalent statute elsewhere was deemed to be a judgment obtained in a local Court and therefore it would come within ss 5(4) and 5(7).

[49]   As to the second category of actions, namely a new action based on a judgment debt the Court stated:57

Such an action is probably obsolete. But it once had a purpose. For example, I have already mentioned that at common law a judgment could not be enforced after a year and one day. However, within that period a plaintiff could take proceedings by action in debt on the judgment. If the plaintiff obtained a fresh judgment time would start to run again. Presumably the plaintiff could continuously renew a judgment in this fashion at least until the court decided that he was acting in abuse of its processes.

[50]   The above comment aligns with the comments of Lord Lloyd of Berwick who wrote the leading speech in Lowsley v Forbes on actions to enforce judgments.58 There he cited the following paragraphs from the Law Reform Committee:59

4.13   Until 1852, an action on a judgment was the simplest way in which a judgment creditor could recover his money after a year and a day had elapsed since the judgment; and a judgment was, until 1864, chargeable per se on, and payable out of, the proceeds of sale of real property. In view of this latter rule, it is understandable that the period for an action on a judgment has since 1833 been the same as that for an action relating to land. Actions on a judgment are, however, nowadays very rare indeed and we do not think that the special provision for judgments should be preserved.

4.14  The authorities show that section 2(4) has caused difficulties in practice, because it has been held apt to bar certain (though not all) forms of execution. We think that the law of limitation of actions ought not to interfere with the rules in relation to execution, which currently provide for a period for issue of a writ of execution of six years, which may be extended with the leave of the court…

55     Williams v Jones, above n 15.

56     Grant v Easton, above n 15.

57     Dennehy v Reasonable Endeavours Pty Ltd, above n 15, at [9].

58     Lowsley v Forbes, above n 16.

59     At 340. Lord Browne-Wilkinson, Lord Nolan, Lord Hoffman and Lord Hope of Craighead expressed their agreement.

[51]   The Federal Court in Dennehy went on to consider how “for more than sixty years” the LA 1939 (UK) had been understood to apply only to an action on a judgment and not to the process of execution. Here the Court referred to s 2(4) of the LA 1939 (UK) and how in W T Lamb and Sons v Rider60 Scott LJ had drawn a distinction between the right to sue on a judgment and the right to issue execution under the judgment with the two conceptions being subject to different treatment. This distinction had been treated as good law in England until Lowsley v Forbes when doubts were expressed about its reasoning.61 The question for the Australian Federal Court was whether it should continue to apply the distinction or not. The Court decided the distinction should continue:62

I propose to act on the basis that when the Victorian parliament enacted the 1955 Limitations Act, based as it was on the English legislation, it did so in the belief that Lamb’s case was correctly decided. In the first place, parliament is presumed to have a mastery of the law, both the common law and statute law. It is also presumed to know the cases which interpret statutes. Perhaps it may be taking the principle a little too far to suggest that parliament is also presumed to have knowledge of the law of other jurisdictions. But it is, in my view, proper to act on that presumption as regards the 1939 Limitations Act because it was specifically adopted by the Victorian parliament. That is to say, it is to be presumed that parliament does know the law relating to the precise statute which it is adopting from another common law jurisdiction. There is also the additional fact that lawyers in Victoria including, importantly, parliamentary counsel, would have assumed the correctness of case and would have acted on that basis. The two leading texts to which reference would have been made at the time state this to be the case. I have in mind the third edition of Halsbury’s Law of England which was published in 1958. The relevant passages are found in vol 24 at paras 417-

419. There is also the well-known, and then contemporary, English textbook, Preston and Newsom on Limitation of Actions, the third edition of which was published in 1953 and was commonly used in Australia.

[52]   Whilst Dennehy was about whether the Federal Court would continue to recognise there was a difference between actions on judgments and execution of judgments (given the reasoning in Lowsley v Forbes) the discussion about and approval of the principles relating to the enforcement of foreign judgments at common law is helpful for present purposes because it shows there has been a consistent approach taken in Australia and England which fits with the approach taken here. The

60     W T Lamb and Sons v Rider [1948] 2 KB 331.

61     Their Lordships in Lowsely v Forbes considered the distinction was of such long standing that it was too late for them to hold the reasoning underlying it was wrong: see at 342.

62     Dennehy v Reasonable Endeavours Pty Ltd, above n 15, at [16].

discussion is also helpful for showing that “actions on judgments” are a discrete form of proceeding for the enforcement of judgments.

Canadian authority

[53]   Finally, and for completeness I note that as recently as 2006 (as opposed to the older English authorities) in Pro Swing Inc v Elta Golf Inc the majority judgment of the Supreme Court of Canada outlined the “theoretical basis for the recognition and enforcement of foreign money judgments” as follows:63

The foreign court order is seen as creating a new obligation on the defendant. In the case of a money judgment this is a debt.

Discussion on limitation issue

[54]   I consider the weight of authority both in this country and abroad supports contract/debt being the appropriate pleading/cause of action for enforcement of unregistered foreign judgments under the common law. First, this is what the Court of Appeal expressly stated in Eilenberg v Guiterrez and Van Wyl v Engeler.64 It has also been repeatedly stated by English and Australian courts.65

[55]   I accept there was no discussion in either Eilenberg v Guiterrez or Van Wyl v Engeler about whether a proceeding to enforce a judgment, with its 12-year limitation, was also an available pleading/cause of action for enforcing a foreign judgment under the common law. That there is such a cause of action, albeit now rarely used, is recognised in English and Australian case law.66 There is no reason to think the position is different here. The history of this form of proceeding is outlined in Lowsley v Forbes and at one time it appears to have been the only way English judgments were enforced.67 However, the modern way a judgment creditor obtains payment of the judgment debt in this country is through the execution procedures provided in the High

63 Pro-Swing Inc v Elta Golf Ltd, above n 15, at [89].

64 Eilenberg v Guiterrez above n 15; and Van Wyl v Engeler, above n 5.

65 Dennehy v Reasonable Endeavours Pty Ltd, above n 15, and see ANZ Bank New Zealand Ltd v Cutfield [2014] FCA 1214 at [3] where in relation to the Trans-Tasman Proceedings Act 2010 (Cth) (Act) the Federal Court of Australia Queensland District registry referred to this legislation stating” “the Act effects a modification of the common law position in respect of a foreign judgment. At common law a foreign judgment would have to be sued upon as a debt.”

66 See discussion at [47]–[52] herein.

67 Lowsley v Forbes above n 16; see also discussion in Dennehy v Reasonable Endeavours Pty Ltd

above n 15.

Court Rules. The extent to which a New Zealand judgment can still be enforced by bringing a separate proceeding is a topic beyond the scope of this judgment. This cause of action would seemingly still be the way registered foreign judgments are enforced in this country.68 However, given the extensive use of contract/debt as the basis for recovering unregistered foreign judgments and the absence of any examples where an “action to enforce a judgment” has been used in this type of case, I consider the weight of authority (here and abroad) is against this cause of action being used to enforce unregistered foreign judgments.

[56]   Associate Judge Bell criticised the use of a contract/debt-based cause of action for recovery of unregistered foreign judgments, describing it as a “legal fiction”.69 However, in this country and abroad contract/debt has been the only available cause of action in use for many years. Its use was confirmed by the Court of Appeal in Eilenberg v Gutierrez as recently as 2017.70 Accordingly, there is no reason to think a departure is called for now.

[57]   Second, there is no general reason for departing from the authorities. The use of a contract/debt-based cause of action has always worked well. The fact that under the LA 1950 this cause of action was subject to a shorter limitation period than “proceedings to enforce judgments” is not a reason to discard the contract/debt-based cause of action. Insofar as there may have been an anomaly under the LA 1950 as a result of the limitation period for enforcing registered judgments (s 4(4)) being longer than the time limit for unregistered judgments (s 4(1)(a)), that has now been removed by s 35(1) of the Limitation Act 2010, which has reduced the limitation period for enforcing judgments to six years. Thus, for limitation purposes, proceedings to enforce judgments are now aligned with proceedings to enforce contracts (including for the recovery of legal obligations such as unregistered foreign judgments).

68 For example s 2(b) of the Reciprocal Enforcement of Judgments Act permits “proceedings to be taken” on a registered judgment and s 8 prevents the use of the common law action based on contract/debt that is used to enforce unregistered foreign judgments. Section 8 stipulates that all judgments that can be registered under the Act are not to be otherwise enforced.

69   Yoonwoo C&C Development Corp v Huh, above n 9, at [14] and [51]. The Associate Judge referred to comments by Lord Atkin, who was dismissive of the use of implied contract as a means to support recovery in restitution: see at [14], citing United Australia Ltd v Barclay’s Bank Ltd [1941] AC 1 (HL) at 29. However, that is a separate and different area of law from the present.

70 Eilenberg v Gutierrez, above n 15.

[58]   Third, the purpose of the LA 1950 was to provide limitation periods for bringing recognised causes of action, which is essentially a procedural matter. There is nothing to suggest that Act was intended to make substantial changes to the common law of pleadings either by creating new causes of action or by expanding existing causes of action, which would be the effect of reading s 4(4) to include proceedings for recovery of an unregistered foreign judgment. If s 4(4) was to be interpreted as providing a pleadings platform for bringing proceedings to enforce unregistered foreign judgments, that would involve a substantial change to the common law. It would allow unregistered foreign judgments, which have always been enforced under the common law as a legal obligation sued upon in contract/debt, to also be enforced by a cause of action that has been used to enforce legally recognised judgments. I cannot see how this much change can be read into s 4(4). Whatever s 4(4) had to say about the time bar for bringing “a proceeding to enforce a judgment”, those words cannot extend the scope of that cause of action to include proceedings in contract/debt to enforce legal obligations which emanate from the judgment of a foreign country.

[59]   Fourth, the LA 1950  was  based  on  the LA 1939  (UK).  The language of  ss 4(1)(a) and 4(4) of the LA 1950 is much the same as ss 2(1) and 2(4) of the LA 1939 (UK). This was specifically recognised by the Parliament and the New Zealand Law Commission. The explanatory note to the Limitation Bill 2010 noted that the LA 1950 closely followed the LA 1939 (UK):

There are difficulties in the substance and drafting of the 1950 Act. It is largely based on  the  1936  fifth  report  of  the  English  Law  Revision  Committee, Statutes of Limitation (Cmnd 5334). That report reviewed an English statute of 1623 and made recommendations reflected in the Limitation Act 1939 (UK) (the 1939 Act). The 1950 Act, which followed closely the terms of the 1939 Act, is incomplete, misleading, and inaccessible.

[60]   The Law Commission’s report The Limitation Act 1950, published in 1987, commented:

(a)“The Limitation Act 1950 borrows heavily from 750 years of English legislation …”71

71     The Law Commission The Limitation Act 1950 (NZLC PP 3, 1987) at [34].

(b)“The New Zealand 1950 Act substantially followed the 1939 English Act and parliamentary and departmental discussion on the subject was similarly focussed.”72

[61]   To similar effect are the relevant provisions of the Limitations of Actions Act 1958 (Vic).73 There is merit in the Federal Court of Australia’s view in Dennehy that when a home Parliament adopts a statute from another common law jurisdiction it does so knowing the law relating to that precise statute.74 The LA 1950 came into force on 1 December 1950. At that time, perhaps more so than now, New Zealand case law was heavily influenced by English case law. It was only three years earlier in 1947 that the New Zealand Parliament passed the Statute of Westminster Adoption Act 1947, by which our Parliament accepted the full external authority offered to it by the Statute of Westminster Act 1931 (UK). This illustrates the close connection there would have been around 1950 between the law of both countries and the New Zealand Parliament’s knowledge of English law. The LA 1950 is substantially the same as the LA 1939 (UK); by enacting such legislation I think our Parliament can be presumed to have knowledge of the English case-law on the interpretation of the LA 1939 (UK) and to have intended that law to be applied to our own legislation. I also consider it would be unlikely for Parliament to have chosen to base the LA 1950 on the earlier LA 1939 (UK), but for Parliament to have intended the New Zealand equivalent to be interpreted differently from the English parent. This means Parliament would have intended s 4(4) of the LA 1950 to apply only to New Zealand judgments, and for the reasons outlined below to registered foreign judgments as well.

[62]   Yoonwoo argues the phrase “any judgment” in s 4(4) indicates a legislative intent the phrase be given a broad interpretation. It submits that

a claim on a foreign judgment is a claim in debt not contract. Judgment on a debt embraces an existing liability. The enforceability arises from the judgment not the Court’s recognition of it.

However, this argument is contrary to how the phrase “any judgment” has been understood in either s 4(4) or the equivalent in comparable jurisdictions. The argument

72 At [50].

73     See Limitations of Actions Act 1958 (Vic), s 5(1)(a) and s 5(4).

74     Dennehy v Reasonable Endeavours Pty Ltd, above n 15, at [16].

also overlooks the findings in the authorities referred to herein that: (a) an unregistered foreign judgment is enforceable under the common law as a contract debt; and (b) an unregistered foreign judgment is not legally recognisable as a “judgment.”

[63]   Justice Davison considered the express inclusion of foreign judgments in s 35(1) of the Limitation Act 2010 is consistent with s 4(4) of the LA 1950 being read to include unregistered foreign judgments.75 I respectfully disagree. Registration under s 4 of the Reciprocal Enforcement of Judgments Act 1934 and s 56 of the Judicature Act 1908 results in foreign judgments being deemed to be New Zealand judgments.76 Those benefits are not available to unregistered foreign judgments. By implication this would also mean that for limitation purposes registered foreign judgments came within s 4(4) of the LA 1950. The express inclusion of “foreign judgments” in s 35 of the Limitation Act 2010 can be regarded as simply clarifying what had always been the status quo for registered foreign judgments. There was no reason for unregistered foreign judgments to be included in s 35 because their legal recognition in this country turns on them being regarded as “legal obligations”, which a New Zealand court may enforce as contract debts if the tests for enforcement are met.

[64]   Moreover, as early as 1988 the simplification of limitation periods was being considered by the Law Commission. Its report Limitation Defences in Civil Proceedings77 considered limitation periods and inconsistencies in relation to the time frames given in the Reciprocal Enforcement of Judgments Act 1934 and s 56 of the Judicature Act 1908. Section 4 of the Reciprocal Enforcement of Judgments Act requires registration of a foreign judgment at any time within six years after the date of judgment, but this Act is silent on the relevant time limits for enforcement under that Act (which is required by s 8) following registration. Section 56 of the Judicature Act did not impose a finite time limit for bringing enforcement proceedings. The Law Commission thought the 12-year period in s 4(4) would apply, however, it did not recommend it being continued. Thus, for some time there has been a recognised need

75     Yoonwoo C&C Development Corp v Huh, above n 8, at [47].

76     Kemp v Kemp, above n 18.

77     Law Commission Limitation Defences in Civil Proceedings (NZLC R6, 1988).

to simplify the law regarding registered foreign judgments. The inclusion of foreign judgments in s 35(1) is consistent with Parliament addressing this need.

[65]   By adopting a six-year time limit in s 35 of the Limitation Act 2010 for the enforcement of legally recognised judgments (domestic and foreign) Parliament has now explicitly made their recovery subject to a six-year time limit. This creates a prima facie alignment with the limitation period for recovery of unregistered foreign judgments.78 But that is not to say this Court should extend this alignment retrospectively by reading s 4(4) of the LA 1950 to apply to common law actions for the recovery of unregistered foreign judgments. To do that would require the Court to adopt an interpretation of s 4(4) of the LA 1950 that it has never been given before, and which, therefore, has no authoritative support. I can see no proper basis for such a divergent interpretation. A traditional interpretation will result in a plaintiff with an otherwise strong and meritorious claim being deprived of recovering money the Korean Courts have ordered be paid to it.79 But that is a typical outcome in cases where limitation defences are successful.

[66]   There is a logical clarity and simplicity to the proposition that if the liability to be enforced lies in contract/debt so should the relevant limitation period, which is how the case law in New Zealand and abroad has always regarded the matter. The thrust of Yoonwoo’s submissions at times seemed to suggest that once it showed the Korean judgment met the tests for the enforcement of unregistered foreign judgments the judgment should then be subject to the same limitation periods as the LA 1950 provided for enforcing other judgments. I see no reason for putting a gloss on s 4(4) by reading it in a way that departs from how the section and those like it in comparable jurisdictions have traditionally been understood. To do so would overlook the different characteristics the law attaches to unregistered foreign judgments on the one

78 Under the Limitation Act 2010 there remains one difference between recovery based on debt/contract and recovery based on s 35. Enforcement of an unregistered judgment by debt/contract falls within the s 12 definition of a money claim. Therefore, in principle the late knowledge limitation period extension that can apply to money claims could in principle apply to debt/contract claims that are brought to enforce unregistered foreign judgments. On the other hand, actions on a judgment under s 35 are expressly excluded from the definition of a money claim: see s 12(3)(d); so the limitation period for those claims cannot be extended. Theoretically the limitation period for enforcing unregistered foreign judgments may now be longer than it is for enforcing domestic and registered foreign judgments.

79 See discussion in the latter part of this judgment which finds that but for the time bar the Korean judgments would be enforceable against Mr Huh.

hand and domestic judgments and registered foreign judgments on the other. I see no reason to blur this distinction.

[67]   Accordingly, I am satisfied the claim Yoonwoo brings against Mr Huh is one founded on contract/debt and the relevant limitation period is s 4(1)(a) of the LA 1950. I am also satisfied there is no other cause of action available to Yoonwoo to enforce the judgments.

[68]   At the outset of the hearing Yoonwoo accepted this proceeding was brought more than six years after the judgments were delivered and therefore it was outside the limitation period in s 4(1)(a) of the LA 1950. Given I have found s 4(1)(a) applies here, it follows that I find the judgments are time barred.

[69]   As part of its argument in closing on the application of s 4(4) of the LA 1950 Yoonwoo argued that the reference to “enforce” in s 4(4) meant the focus was on when the judgments could be enforced, rather than when they were delivered. On that basis the 12-year time limit in s 4(4) would have run from 2014, which is when Yoonwoo says enforcement was available. The point was not developed in any detail because even when taken from date of the judgments’ delivery (May 2010) the proceedings were brought well within a 12-year period.

[70]   However, this issue of whether the relevant date is time of delivery or enforcement has real relevance when it comes to a six-year time limit. The proceedings were commenced in 2018. If the relevant start time for limitation purposes was 2014 the proceeding would have been brought within the six-year time limit. Yoonwoo did not advance any arguments in this regard.

[71]   At the Court of Appeal (England and Wales) hearing in Berliner the focus was on the appropriate start date for limitation purposes. The case involved an unregistered German judgment and had proceeded on the basis a six-year time limit applied. The majority found the relevant date was delivery of the judgment because that was when a final and conclusive judgment was delivered. The minority found the relevant date was when the judgment could be enforced, which was some time after it delivery. On

the majority’s view recovery of the judgment debt was time barred, on the minority’s view it was not.

[72]   In Berliner the Court had the benefit of expert evidence on German law to inform it about these matters. Because Yoonwoo did not fully address this possible argument I have not been directed to any relevant expert evidence that might persuade me to follow the minority judgment in Berliner. Nor was this argument brought to Mr Huh’s notice. He has therefore not had any opportunity to address this matter. Accordingly, I have not heard full argument on whether a date later than the delivery date is the proper basis for calculating time under s 4(1)(a) of the LA 1950, so I am not prepared to consider that question.

Enforcement under the common law

[73]   The hearing of this proceeding occupied five days and involved oral evidence with witnesses cross-examined both in person and by audio visual link in relation to those witnesses who were situated in Korea. The evidence involves conflicts as to reliability and credibility. Given there are evidential issues to be resolved before any question of enforcement of the judgments under the common law as contract debts can be determined, and in case I am wrong on the limitation point I propose to make findings on the evidence and reach conclusions on whether the judgments meet the common law tests for enforcement.

Factual background

[74]   The judgments arise from sums owed by Mr Huh to Yoonwoo under three contracts. In 2008 Yoonwoo as vendor entered into three contracts with the following persons as purchasers: Dae Joo Construction Corp, Mirae RHC Corporation (Mirae), Dae Han Corp, and Mr Huh in his personal capacity. The contracts related to a proposed development of apartments. Under these contracts the purchasers were required to pay a deposit of KRW 890,000,000 (Korean Won) and a purchase price of KRW 2,700,000,000 for the apartments. The purchasers failed to meet their contractual obligations.

[75]   Yoonwoo commenced two proceedings in the Uijeongbu District Court in Korea. They can be referred to as the 6250 proceeding and the 6537 proceeding. Both proceedings were filed against Dae Joo Construction Corp, Mirae, Dae Han Corp, and Mr Huh in his personal capacity (together the Dae Joo parties).

6250 Proceedings

[76]   As is the way in Korea the 6250 proceeding was served on Mr Huh by the Court. This was done on 7 August 2009, by postal mail to the registered office of Mirae RAC and the other Dae Joo companies.

[77]   On 1 September 2009 the equivalent of a statement of defence (the answer document) was filed on behalf of Mr Huh and the other defendants.80 In Korea seals are often used rather than signatures. Affixed to the answer document were seals purporting to be from all four defendants. Of relevance here is the seal that appears stamped next to Mr Huh’s name in Korean characters. Yoonwoo contends this indicates Mr Huh’s assent to the answer document being filed. Mr Huh contends the seal is not his and he did not affix it to this document.

[78]   Korean law allows for multiple defendants to appoint one of them as agent for the others. Yoonwoo contends that on 2 September 2009 Mr Huh along with other defendants appointed Mirae as their representative. This role was then carried out by Byung Won Lee, a registered manager of Mirae, who acted on all defendants’ behalf in respect of the further steps in this proceeding. Mr Huh disputes he had any part in this. From 2 September 2009 onwards all legal documents were served on Mirae, which then acted through Mr Lee.

[79]   On 8 April 2010 there was a judicial conciliation hearing before three Judges of the Uijeongbu District Court. Yoonwoo contends that Mr Lee represented the Dae Joo parties including Mr Huh. Mr Huh disputes this. Yoonwoo contends that at this hearing the parties agreed on a compromise, which was then recorded in orders made by the Court. Under these orders the defendants were ordered to pay Yoonwoo KRW

80 I use the term “answer document” because this is the English phrase used by Moon Woo Park who is the lawyer who acted for Yoonwoo in the legal proceedings it brought in Korea against Mr Huh and the other Dae Joo parties.

1,050,000,000 plus interest at the rate of 20 per cent per annum until payment in full. To date Mr Huh has not made any payment to this sum. Mr Huh disputes he was part of this agreement.

6537 Proceedings

[80]   The 6537 proceeding was commenced by the Korean Court serving a notice for hearing on Mr Huh on 22 September 2009 at the same address as for the 6250 proceeding. On 26 October 2009 the defendants filed an answer document to the claim. Yoonwoo contends that Mr Huh’s seal was stamped on this document. Mr Huh disputes this. On 3 November 2009 a notice of hearing was served at Mirae’s headquarters. On 9 November 2009 Yoonwoo’s response to the answer document was served at Mirae’s headquarters. On 20 November 2009 a notice for change of hearing was served on Mr Huh at Mirae’s headquarters. On 26 November 2009 the defendants, including Mr Huh, filed a further submission in the Court. Mr Huh’s seal was stamped on this document. Mr Huh denies he was part of these actions or that his seal was used in this way.

[81]   Yoonwoo contends that on 30 November 2009 all defendants appointed Mirae as the representative defendant or selected party in the proceeding. Mr Huh’s seal is stamped this document. Mr Huh denies this.

[82]   From 30 November 2009 all documents in respect of the 6537 proceeding including those for Mr Huh were served on Mirae as the representative party. On 18 March 2010 a judicial conciliation hearing was held before three Judges of the Uijeongbu District Court. The Dae Joo parties and Mr Huh were represented by Mr Lee. Mr Huh denies he was represented by Mr Lee. An agreement was reached which was recorded in orders made by the Court. The defendants were ordered to pay Yoonwoo KRW 890,000,000 plus interest at the rate of 20 percent per annum until payment in full. Mr Huh has not made any payment towards this sum. Mr Huh denies he was part of an agreement that led to the making of these orders or that the orders legally bind him to pay the sum of money.

Disputed factual issues

[83]   Put shortly, Mr Huh disputes that either of the Korean proceedings were properly served on him. He disputes that he appointed Mr Lee as his representative. He disputes that the conciliation in the Korean Court is capable of recognition as a judgment of a Court of competent jurisdiction as understood in New Zealand. He denies that his seal was affixed to the various documents which Yoonwoo contends are binding on him or that he authorised someone on his behalf to affix his seal in this way. He also denies that he was in Korea at relevant times.

[84]   Yoonwoo contends the legal effect of the Korean judgments is that in relation to the 6250 proceeding Mr Huh is liable to pay Yoonwoo the sum of KRW 1,050,000,000 plus interest at 20 percent per annum until payment in full. In relation to the 6537 proceeding Mr Huh is liable to pay Yoonwoo the sum of KRW 890,000,000 plus interest at 20 percent per annum until payment in full. The total sums owing under the Korean judgments comes to NZD 2.3 m and with interest added Yoonwoo contends the total sum at the date of hearing was KRW 6,699,923,287.67 which at the time was the equivalent of NZD 8,039,907.05.

Relevant legal tests for enforcement of unregistered foreign judgments

[85]   The legal tests for recognition and enforcement of unregistered foreign judgments in this Court are well settled. Such judgments will be binding on a defendant in New Zealand if (a) the foreign court had jurisdiction to give the judgment and the judgment debtor had submitted to that jurisdiction; (b) the judgment is final and conclusive; and (c) the judgment is for a fixed sum of money.81 The burden of proving these requirements lies on the party seeking to enforce the foreign judgment (Yoonwoo).

[86]   For this Court to be satisfied the Korean court had jurisdiction over Mr Huh this Court requires proof that he submitted to the Korean court’s jurisdiction. Submission to jurisdiction is to be determined by the New Zealand rules of conflict of laws rather than according to the Korean court’s own law.82 Submission to jurisdiction

81     Eilenberg v Gutierrez, above n 15, at [30].

82     Von Wyl v Engeler, above n 5, at 420.

will have happened where the judgment debtor was present in the foreign country at the time the foreign proceedings were commenced; or where the judgment debtor was plaintiff or counterclaimed in the foreign Court; or where, being the defendant in the foreign Court, the judgment debtor submitted to the jurisdiction of that Court by voluntarily appearing in the proceedings; or before the commencement of the proceedings the judgment debtor agreed in respect of the subject matter of the proceedings to submit to the jurisdiction of that Court or the Courts of that country.83 The burden of proof here lies on the party seeking to enforce the foreign judgment (Yoonwoo).

[87]   However, there are exceptions to the general test above. Foreign judgments that satisfy the requisite criteria for enforcement in New Zealand will not be binding if: (a) they were obtained by fraud; (b) enforcement of the judgment is contrary to public policy; and/or (c) the proceeding in which the judgment was obtained was contrary to natural justice.84 The burden of proving that one or more of these exceptions apply lies on the party seeking to impeach the foreign judgment (Mr Huh).85

[88]   The above matters are all that need concern a court faced with a plaintiff seeking to enforce an unregistered foreign judgment; a court faced with this task will not enter into any examination of the substantial bases for the entry judgment against the judgment debtor, as stated in Eilenberg v Gutierrez:86

A foreign judgment is not otherwise impeachable or examinable on its merits whether for error of fact of law…

Evidence

[89]   The evidence was filed in the form of affidavits with parties being required to issue notice for attendance of the opposing party’s witness for cross-examination if so required. Yoonwoo filed affidavits for the hearing from Moon Woo Park, the Korean lawyer who had acted for Yoonwoo in the subject proceedings; Wonseok Kang, a

83     Von Wyl v Engeler, above n 5, at420–421.

84     Eilenberg v Gutierrez, above n 15, at [30].

85 At [31].

86     At [31] where the Court of Appeal referred to Kemp v Kemp, above n 18, at 458.

Korean lawyer who gave expert evidence about relevant Korean law; Kyung Chel Kim, the chief executive officer of Yoonwoo, and the translators who had translated original affidavit evidence written in Korean characters into English. Mr Park, Kyung Chel Kim and Mr Kang appeared at the hearing and were cross-examined by Mr Huh.

[90]Mr Huh gave evidence at the hearing and was cross-examined.

[91]   Mr Huh had filed an affidavit from a Korean lawyer, Jin-Uk Kim (Mr Kim), who gave expert evidence for him on Korean law. Before the hearing, by memorandum Yoonwoo filed objection under the Evidence Act 2006 to parts of Mr Kim’s affidavit evidence. Also, before the hearing Yoonwoo issued a notice for Mr Kim to appear for cross-examination. However, he made no appearance. When Mr Kim failed to appear for cross-examination, in reliance on r 9.74(3) of the High Court Rules, Yoonwoo argued in its closing submissions that Mr Huh should not be granted leave for Mr Kim’s affidavit to be read and for the affidavit to be excluded in its entirety.

[92]   At the hearing Yoonwoo made several objections to Mr Huh’s evidence. I gave a result ruling excluding certain parts of Mr Huh’s 7 March 2022 written statement. My reasons for excluding those passages are set out in a ruling given later (to be released concurrently with this decision).87 As a result of allowing those objections Yoonwoo decided it was unnecessary for it to produce two affidavits in their entirety, these being the affidavits of Kyung Chel Kim dated 17 August 2022 and the translator’s affidavit of Youngkun Yu dated 15 August 2022. Further, Yoonwoo then elected to partly produce an affidavit of Youngkun Yu dated 17 August 2022, namely paragraphs one and two which formally produced the translation of the affidavit of Kyung Chel Kim dated 14 December 2020. Paragraph three and exhibits YY3 and YY4 were not produced as they provided a translation of the affidavit of Kyung Chel Kim dated 17 August 2022.

87     Yoonwoo v Huh HC Auckland CIV-2018-404-664, 6 June 2023 [Reasons Ruling of Duffy J].

Jin-Uk Kim’s evidence

[93]   Some of Mr Kim’s affidavit evidence gave a general account of Korean legal procedures that was consistent with Mr Kang’s evidence. However, on certain material issues Mr Kim’s evidence differed from that of Mr Kang.

[94]   I consider the best approach is to identify where parts of Mr Kim’s affidavit are inadmissible, and then to consider the extent to which the remainder is affected by him being unavailable for cross-examination.

[95]   Paragraphs one to nine of the affidavit set out Mr Kim’s background and qualifications to give expert evidence. They are admissible in principle, however, unless the remainder of the affidavit is relevant and otherwise admissible these introductory paragraphs have no probative value and for this reason they would warrant exclusion.

[96]   Paragraphs 10 to 12 give an overview of the contracts that were in issue in proceedings 6250 and 6537. This is not relevant to the issues to be determined now. Then from paragraph 13 onwards Mr Kim outlines his analysis of the contracts and their legal effect in Korea.

[97]   Yoonwoo argues that paragraphs 13–17, 18–19, part of paragraph 21, 56, 58– 59 and 98 are irrelevant because in those paragraphs Mr Kim is giving evidence that challenges what happened in the substantive proceedings in Korea. Yoonwoo’s argument is that it is not for this Court when faced with the question of whether the unregistered Korean judgments are enforceable, to examine the substantive merits of those judgments. That is something that falls outside the scope of this Court’s examination. I agree. The Court’s focus is solely on the legal tests for enforcement  of unregistered foreign judgments. This is made clear in Eilenberg v Gutierrez.88 I am, therefore, satisfied those paragraphs of Mr Kim’s evidence are inadmissible on the ground they are irrelevant. The earlier paragraphs 10 to 12 which set the scene for the evidence that follows also deal with irrelevant matters and for this reason they are excluded.

88     See discussion herein at [88] referring to Eilenberg v Gutierrez, above n 15, at [31].

[98]   Yoonwoo objects to paragraph 21 of Mr Kim’s affidavit. Yoonwoo has not objected to paragraph 20 in which Mr Kim records his disagreement with Mr Park’s statement that for the purposes of the Korean proceedings there were two key contractual documents. This paragraph is a forerunner to paragraph 21 where Mr Kim expresses the view Mr Huh may not have actually been liable to pay the deposit or purchase price claimed. I consider both paragraphs 20 and 21 are irrelevant and should be excluded for the same reasons as I have excluded the earlier paragraphs of the affidavit, namely they comment on the merits of the contract claims that were in issue in the Korean proceedings.

[99]   Yoonwoo objects to paragraph 98 of Mr Kim’s affidavit. This commences with him saying:

I must say on the information available if I had been acting for Yoonwoo in the judicial conciliation I would have been a little concerned about the steps Mr Lee was taking on behalf of the other defendants.

He then goes on to comment on how he considers the contracts in his view only make Mirae “arguably liable for the deposit and purchase price”. He describes the case against the other defendants as weak. He says he would have been surprised to find Mr Lee committing all defendants to a settlement which effectively required them to all joint meet Mirae’s liability and that this compromise agreement did not make sense for Mr Huh. Yoonwoo argues this evidence is irrelevant and it is opinion evidence which goes beyond informing this Court about Korean law. I agree. Whether the contracts only bound one of the defendants and whether the defendants were properly advised or not is not relevant for the present purposes. The opinion expressed in paragraph 98 is essentially a challenge to the merits of the Korean judgments; I have already found this type of evidence is irrelevant. Accordingly, paragraph 98 is excluded.

[100]   Yoonwoo also objects to the admissibility of paragraph 108 on the ground it is speculation. I do not accept the evidence in paragraph 108 is speculation, but I do consider it is at odds with what Mr Kang says in his expert evidence and for this reason it is evidence that required Yoonwoo to have the opportunity to cross-examine Mr Kim. I shall return to this when I consider the balance of Mr Kim’s affidavit.

[101]   The balance of Mr Kim’s affidavit provides general comment and specific comment relating to the subject proceedings in respect of the service of legal documents in Korea, use of seals to execute documents, use of a selected representative to represent multiple parties in a proceeding, Court conciliation processes and whether they can result in final and conclusive judgments, and residency in Korea. Much of the general comment is consistent with what Mr Kang says in his evidence. However, where Mr Kim specifically addresses how these general comments apply to the case in hand his evidence is generally at odds with that of   Mr Kang.

[102]   Between paragraphs 47 and 72 Mr Kim specifically comments about how the various court documents in proceeding 6520 and proceeding 6537 were served. He says they were not served correctly and therefore this Court cannot be sure Mr Huh knew of the Korean proceedings. This evidence is directly at odds with the evidence of Mr Kang.

[103]   Between paragraphs 52 and 61 Mr Kim generally describes what he terms the “appointed party” procedure which allows two or more persons with similar or common interests involved in proceedings in Korea to appoint a party among themselves to represent all such persons in the lawsuit. He refers to this as an “appointed party suit”. Mr Kim then expresses his reservations about the appointment of Mirae to represent the other defendants in proceedings 6520 and 6537. This evidence is at odds with that of Mr Kang.

[104]   Between paragraphs 62 and 72 Mr Kim says that while the proceedings show Mirae was appointed as the appointed defendant this does not mean Mr Huh knew about and was participating in the proceeding, or that he appointed Mirae to represent him. This evidence is also directly at odds with that given by Mr Kang.

[105]   Between paragraphs 73 and 78 Mr Kim outlines in general terms the role of judicial conciliations in Korea. He describes the outcome as similar to an in-court settlement agreement. In Mr Kim’s view the fact a judicial conciliation took place is not necessarily relevant to whether Mr Huh was effectively served. He says unless there was an objection to service, the Judges would typically not have made

independent enquires to confirm Mr Huh was served at the correct address, or that the documents were actually received by Mr Huh. Mr Kim says that unless there was an objection to Mirae’s appointment as the representative party the Judges would not have made independent enquiries to confirm Mr Huh had appointed Mirae as his representative. This opinion evidence is directly at odds with what Mr Kang says about the adequacy of service in proceedings 6520 and 6537.

[106]   Between paragraphs 79 and 90 Mr Kim addresses the two Korean judgments and queries whether they are, in fact, judgments. This evidence is at odds with that of Mr Kang.

[107]   Between paragraphs 91 and 98 Mr Kim addresses the role of registered managers in Korea. He expresses his doubts as to whether it was appropriate for Mr Lee of Mirae to represent defendants in civil proceedings where such a large amount of money was at stake. This evidence contradicts that of Mr Kang.

[108]   At paragraphs 95 to 98 Mr Kim addresses the concept of apparent authority and disputes whether that would apply here. Again this evidence is directly at odds with what Mr Kang says.

[109]   Between paragraphs 99 and 108 Mr Kim gives evidence on the use of seals in Korea. He acknowledges in paragraph two of his evidence that there are two types of seal, registered seals and common (wooden) seals. He explains that people have many different common seals which they may use for a range of different purposes. He then opines, on the basis of Mr Huh’s evidence, that Mr Huh had always used registered seals in significant contracts and that such conduct was not uncommon for someone of Mr Huh’s age and status. This evidence can be readily challenged by cross- examination. Yoonwoo called evidence from its chief executive Yong Chel Kim who gave evidence of personally witnessing Mr Huh being present when his attorney affixed Mr Huh’s wooden seals on the contract documents that were in issue in the Korean proceedings. These contracts involved substantial sums of money. Mr Kim’s absence from this proceeding meant he avoided challenges to this aspect of his evidence given the chief executive’s explanation of the common seal being affixed in Mr Huh’s presence. But without seeing Mr Kim’s responses to such cross-

examination it is not possible for me make a proper assessment of his evidence against that of Yong Chel Kim.

[110]   From paragraphs 106 to 108 Mr Kim raises questions about the appropriateness of Mr Lee using a common seal of Mr Huh. Mr Kim says issues regarding the use of common seals by assistants is recognised in Korea as creating issues which is why it is always important for other parties to satisfy themselves regarding the use of the seal. The evidence at paragraphs 106-108 of Mr Kim’s affidavit is at odds with Mr Kang’s evidence and required testing. Moreover, here neither Mr Lee nor Mr Kim were made available as witnesses for Yoonwoo to cross-examine about Mr Lee’s use of Mr Huh’s wooden seals, despite Mr Huh being on notice that Yoonwoo required these witnesses for cross-examination.

[111]   On the other hand, Mr Kang’s appearance in Court via audio visual link meant I had the benefit of seeing him give evidence and his responses to the cross- examination by Mr Huh. Mr Kang is a well-qualified and experienced lawyer both in the Korean and New Zealand jurisdictions.89 He is independent of the parties in this proceeding.

[112]   I also heard evidence from Mr Park, the lawyer who represented Yoonwoo in the Korean proceedings. At a time when Mr Huh was legally represented in this proceeding Mr Huh’s lawyers questioned whether Mr Park could give expert evidence on matters of Korean law when he had acted for Yoonwoo in the proceedings in issue. It is preferable that an expert on Korean law be independent of the parties. However, Mr Park is a well-qualified and experienced Korean lawyer. I see no reason why in principle he should not give expert advice on matters of Korean law. However, his

89 Mr Kang is a barrister and solicitor of the High Court of New Zealand. From 1979 until 1983 he studied at Sung Kyun Kwan University in South Korea and graduated with a South Korean equivalent of a Bachelor of Laws. From 1984 until 1986 he studied at the Seoul National University in South Korea and graduated with a South Korean equivalent of a Master of Laws. Between 1998 and 1999 he worked as an assistant patent attorney for Y S Chang & Associates, which is a patent attorney office in Seoul, Korea. In 1998 he graduated from the University of Auckland with a Bachelor of Laws and then commenced working at Kelly Flavell, solicitors, until 2005 when he commenced his own practice under the name KBS Lawyers. He is fluent in the Korean language and he confirmed in his evidence that he had read the Code of Conduct for Expert Witnesses in Schedule 4 of the High Court Rules.

evidence does not refer to the Code of Conduct for expert witnesses in the High Court Rules. That would be a reason for not accepting his expert opinion evidence.

[113]   Yoonwoo says Mr Park’s evidence is there to outline for the Court what relevantly happened in the Korean proceedings, and for him to do this properly he necessarily has to refer to and therefore explain aspects of Korean law. Whereas, Mr Kang was called for the sole purpose of giving expert evidence on relevant Korean law.

[114]   I have relied on Mr Kang’s evidence for expert advice on Korean law, given his independence. I have used Mr Park’s evidence to inform me of what happened in the Korean proceedings where relevant to the matters I am considering. I find where the opinion evidence of Mr Kang fits with the narrative provided by Mr Park’s evidence, this is helpful because it provides assurance regarding the reliability of Mr Kang’s evidence.

[115]   The performance of Mr Kang and Mr Park under cross-examination leaves me satisfied with the overall reliability of their evidence. Without the benefit of seeing Mr Kim testify under cross-examination on the matters where his evidence contradicts that of Mr Kang I cannot resolve those conflicts. The contradictions involve the operation of a different type of legal system to that in New Zealand and I have no familiarity with this system. Without further explanation from Mr Kim I cannot decide whether I would prefer his evidence from the evidence of Mr Kang. Accordingly I find the material conflicts between the evidence of the two legal experts on Korean law cannot be resolved on the basis of the evidence as currently presented to me from Mr Kim. The failure to produce Mr Kim for cross-examination means I cannot put any weight on his evidence where it contradicts that of Mr Kang. On the general topics, where Mr Kim’s evidence is consistent with the evidence of Mr Kang and Mr Park, Mr Kim’s evidence adds little to what is already available to me. These are good reasons for me finding that where his affidavit is contradictory of Mr Kang’s evidence the affidavit should not be read. Mr Kim’s affidavit should not be read.

[116]   In summary there are passages of Mr Kim’s affidavit that are inadmissible for the reasons I have given. There are other passages that are admissible, but the failure

to produce him for cross-examination warrants those passages of his affidavit not being read. The balance of the affidavit is admissible but given it is consistent with Mr Kang’s evidence it adds nothing to the overall understanding of Korean law that I can gain from the experts’ evidence. Thus, it is not helpful for the issues I have to determine. In such circumstances I find the best approach is to exclude Mr Kim’s affidavit entirely from the evidence.

Failure to cross-examine Yoonwoo’s witnesses

[117]   Yoonwoo submits in closing that Mr Huh did not cross examine Mr Kang on several key aspects of his evidence, which effectively strengthens this evidence. The issues that were not covered in cross-examination are: (a) the law in Korea regarding an agent’s ostensible authority; (b) that in Korea Judicial Conciliation orders have the effect of final and conclusive judgments; (c) the legal effect in Korea of Mr Lee’s authority as registered manager of Mirae to act as Mirae’s representative in legal proceedings in which Mirae was the appointed representative party; and (d) the requirements of the Korean Resident Registration Act and the effect and implication of Mr Huh updating his registered address during 2010 and whether that meant he was maintaining his residence in Korea.

[118]   Yoonwoo also submits that Mr Huh similarly failed to cross-examine Mr Park on parts of his evidence. First, his evidence regarding steps Yoonwoo took in 2009 when it commenced both proceedings. Second, what occurred in 2010 when the Judicial Conciliation orders/judgment sums were made. Third, what occurred in 2014 when steps were taken to enforce the Judicial Conciliation orders in Korea. Fourth, regarding Mr Lee’s representations to the Korean Court on his authority as manager of Mirae (the appointed representative party) to agree to the making of the Judicial Conciliation orders/judgments. Fifth, regarding Mr Huh’s continued involvement in the Dae Joo group of companies (including the other defendants) after 2008.

[119]   Section 92 of the Evidence Act sets out the obligations for cross-examination of an opposing party’s witnesses. Put simply, if Mr Huh wanted the Court to reject evidence from Mr Kang and Mr Park on the aforegoing issues Yoonwoo argues that Mr Huh was obliged to cross-examine them and put any contradictory evidence he

relied on to them. Failure to cross-examine by a party can result in that party being deemed to have accepted the witnesses’ evidence.90 It may be thought some leniency can be extended to a party who is self-represented. However, in Rawlinson v Rice91 a plaintiff lay litigant in a civil trial in tort expressly refused to cross-examine the defendant on matters crucial to proof of the civil claim against the defendant. The defendant’s counsel submitted the failure to challenge evidence disputing he lacked the necessary mental element to establish the tort meant the case against the defendant must fail. The argument succeeded and the case was withdrawn from the jury with judgment entered for the defendant.

[120]   Rawlinson v Rice was decided before the Evidence Act, however, the authorities cited in the judgment regarding the obligation to cross-examine are just as relevant today. The principle is of long standing that a party wanting to contradict the evidence of a witness or submit to the Court the evidence should be disregarded is under an obligation first to cross-examine the witness so that he or she has the opportunity to respond to the challenge. It was clearly explained by Lord Halsbury in Brown v Dunn92 and has since been applied in courts in England, Australia and New Zealand. Today modern evidence texts state there is no hard and fast rule there must be cross-examination but rather the recognition of a principle that fairness generally requires a witness to have an opportunity to respond where their evidence is challenged on significant issues.93

[121]   Here Yoonwoo relies on the combined effect of Mr Huh’s failure to produce Mr Kim, who was called for cross-examination (which has seen his evidence excluded) together with Mr Huh’s failure to cross examine Mr Kang and Mr Park and says against this background there can be no challenge to parts of their evidence. I agree. However, this does not mean the Court should accept the evidence of Mr Kang

90 This principle is not expressly stated in the Evidence Act s 92 but s 92(d) permits a Judge to make any other order that the Judge considers just. The express remedies given in s 92 are for a witness to be recalled fror cross-examination or for the party who failed to cross-examine to have its contradictory evidence excluded. Exclusion of a party’s contradictory evidence has much the same effect as treating the party as deemed to have accepted the witness’s evidence.

91 Rawlinson v Rice HC Tauranga CP 17/94, 3 December 1998.

92 Brown v Dunn (1893) 6 R 67 (HL).

93 See Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at [EV92.01] and following; and Matthew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA92.1] and following.

and Mr Park automatically and uncritically. It will still need to be carefully considered where relevant.

Application of legal tests for the enforcement of unregistered foreign judgments

Were the Korean judgments final and conclusive?

[122]   Mr Kang says that in each of the judgments the parties reached an agreement that was recorded by the Uijeongbu District Court. In accordance with art 29 of the Judicial Conciliation of Civil Disputes Act 1990 (Korea), the judgments have the effect of a final judgment in Korea and are binding on the parties. Under art 34 of that Act the parties had 14 days to appeal against the judicial arbitration decision. Here there is evidence in the affidavit of Moon Woo Park that no appeal was filed against either judgment, which means the judgments are final and conclusive.

[123]   From the evidence I heard from Mr Kang I am satisfied that he has a competent understanding of the matters of Korean law on which he gave expert evidence. I have no reason to doubt Mr Kang’s evidence or Mr Park’s evidence on this topic. There is no admissible evidence from Mr Huh to the contrary. The judgments have the appearance of formally delivered Court documents, which is consistent with Mr Kang’s evidence. Mr Kang has explained the process by which they become final and conclusive. The concept of a Court making orders or entering judgment by consent to reinforce the legal effect of a compromise reached between litigating parties is a familiar concept in this jurisdiction. Here such orders/judgments have the same legal effect and force as those which follow the judicial hearing and determination of a lis inter partes. Accordingly, I am satisfied the subject judgments are final and conclusive judgments.

Judgment for fixed sum of money

[124]   There is no doubt that here the judgments Yoonwoo seeks to enforce are for fixed sums of money. This enforcement criterion is met.

Did the Uijeongbu District Court in the proceedings 6250 and 6537 have jurisdiction to rule on the subject matter?

[125]   I am satisfied the Uijeongbu District Court had jurisdiction to rule on the subject matter in the proceedings 6250 and 6537, for the reasons set out below. Again I rely on the evidence of Mr Kang who provided expert evidence on relevant aspects of the Korean legal system. I see no reason to doubt his evidence on this topic.

[126]   Mr Kang referred to the judgments and the judgment sums in issue. He described the Korean legal system as a civil legal system. He said that District Courts in Korea primarily deal with civil claims, criminal claims and family claims. He confirmed that the contractual disputes with which the subject judgments are concerned are within the jurisdiction of the Uijeongbu District Court. I accept this evidence. The disputes were over the Dae Joo parties’ failure to pay the agreed purchase price for apartments that Yoonwoo had contracted to sell to them. The subject matter of the contract and the dispute over non-payment was clearly the type of civil dispute that would be within the Korean court’s jurisdiction.

[127]   Mr Kang explained that the Korean District Courts have sole jurisdiction to hear all civil claims. Where the claim is KRW 200 million or less the case is heard by a single Judge.94 Where the amount is more than that the case is heard by a panel of three Judges. He described the District Courts of Korea as equivalent to a High Court in New Zealand.

[128]   Mr Kang outlined the process by which claims for debt are pursued in the Korean District Court. This requires the plaintiff (here Yoonwoo) to file applications for payment orders.

[129]   Payment order applications are dealt with in one of three ways. First, settlement demand, where the Court issues a payment order based only on a review of the documents submitted by the plaintiff. If there is no objection to the payment order by the defendant within two weeks the payment order is fixed and has the same effect as a formal judgment. Second, a lawsuit. This follows where a defendant objects to a

94     At the date of hearing the exchange rates for KRW 200 million was approximately NZD 268,000.

payment order within the two-week time frame, or is likely to object to any payment order application then the proceeding follows an ordinary law suit procedure. Third, there is judicial arbitration. This happens where there is an objection to the payment order. The parties can then agree to judicial arbitration instead of a lawsuit. In a judicial arbitration Judges preside over the arbitration. If the parties reach an agreement at the arbitration it is recorded by the Court and has the same effect as a final judgment. Where the parties do not agree, then the Judges issue a settlement decision with reference to the plaintiff’s claim and both parties’ interests, which if not objected to within two weeks is taken to have the same effect as a final judgment. If there is objection to the Judge’s settlement decision within two weeks of the decision, then the matter is converted back to the lawsuit procedure or the parties can attend judicial arbitration again.

[130]   Mr Kang was satisfied that the subject judgments here record that Yoonwoo filed payment order applications in the Uijeongbu District Court and the defendants objected. The parties then pursued judicial arbitration (instead of a lawsuit) in accordance with the Civil Judicial Arbitration Act. The arbitration was presided over by a panel of three judges. Three judges were required because the judgments each involved an amount exceeding KRW 200 million.

[131]   Mr Huh has filed no admissible evidence that contradicts the Uijeongbu District Court having jurisdiction to determine the matter between Yoonwoo and the Dae Joo parties.

Did Mr Huh submit to the jurisdiction of the Uijeongbu District Court in the proceedings 6537 and 6250?

[132]   For proof of submission to jurisdiction Yoonwoo relies on the following. First, the Korean Court records for both the proceedings show a voluntary submission to jurisdiction by Mr Huh having filed documents in both proceedings on more than one occasion and on different dates, including dates when he was present in Korea. Yoonwoo submits factors to consider are whether: Mr Huh was present or potentially resident in Korea at the time the proceedings were instituted; he was properly served with the proceedings; he was a national of Korea; he submitted to the jurisdiction of the Korean District Court by voluntarily appearing in the proceedings; he possessed

property in Korea; and he would be subject to the New Zealand jurisdiction in corresponding circumstances.

[133]   In Von Wyl v Engeler the Court of Appeal accepted that a voluntary appearance in a foreign proceeding by a non-resident can be enough to establish that he or she had submitted to the foreign court’s jurisdiction.95 The Court of Appeal later reinforced this principle when it stated:96

The principle underlying the concept of submission to the jurisdiction is that a person who would not otherwise be subject to the jurisdiction of the Court may preclude him or herself by his or her own conduct from objecting to the jurisdiction and thus giving the Court an authority over that person which, but for that submission, it would not possess.

[134]   Accordingly, I will focus first on whether Mr Huh made a voluntary appearance in the Korean proceedings. Because if he did, then whether he was properly served beforehand or was in Korea at the time the proceedings were commenced become irrelevant. Moreover, as will be explained below, certain actions were taken in both proceedings that are either consistent with Mr Huh making a voluntary appearance therein or someone else wrongly purporting to act on his behalf. If it was the former the submission to jurisdiction will be established, whereas, if it was the latter such conduct will either be fraud or it will have denied Mr Huh an opportunity to be heard in the Korean proceeding. In either case this will mean the judgments will not be enforceable against him.

[135]   The onus is on Yoonwoo, as the party seeking to enforce the foreign judgments, to prove Mr Huh submitted to the jurisdiction of the Korean Court. On the other hand, the onus is on Mr Huh to prove the Korean judgments were obtained by fraud or as a result of him being denied an opportunity to be heard. In my view this means that if Yoonwoo can point to conduct that supports submission to the Korean courts’ jurisdiction and which on the balance of probabilities appears to have been done by Mr Huh personally or with his authority that will be enough to prove there has been submission to that jurisdiction. The onus will then move to Mr Huh to prove he had no part in the subject conduct.

95     Von Wyl v Engeler, above n 5,at 421.

96     At 421.

Proceeding 6537

[136]   Regarding proceeding 6537 there is evidence from Mr Park and Mr Kang that shows an answer document was filed on 26 October 2009 in response to the claim filed by Yoonwoo.97 The copy of the answer document in evidence shows the names of the four Dae Joo defendants with seals stamped alongside. An oval seal appears alongside Mr Huh’s name in Korean characters. As previously stated, an answer document is analogous to a statement of defence in New Zealand civil proceedings.98

[137]   There is evidence from Mr Park and Mr Kang that on 26 November 2009 the Dae Joo defendants submitted a further answer document to the Court. That document was filed on behalf of all defendants; the copy in evidence bears the names of the four defendants together with adjacent seals. Included are Mr Huh’s name in Korean characters with an oval sealed stamped alongside.

[138]   On 30 November 2009 the defendants filed an application to appoint Mirae as the representative party. This document is in evidence. It expressly states that the defendants in the case appoint Mirae as the selected party to represent them in the proceeding. The names of all defendants in Korean characters appears on the document with seals affixed beside their names. From then on, all legal documents relating to the proceeding were served on Mirae and Mirae’s manager Mr Lee acted on behalf of all defendants. Mr Kang has confirmed in his evidence that under Korean law where there are multiple defendants they can appoint one of their number to represent them in the proceeding and from then on that person is the one who receives notices and other documents from the opposing party/parties and the Court as well as actively participating in the hearing of the proceedings on behalf of all defendants.

[139]   The above account shows that on three separate occasions documents were filed by the defendants, including Mr Huh. Further the evidence from Mr Park and Mr Kang shows that the Korean court accepted the above documents and acted on them.

97 There is evidence from Mr Park and Mr Kang that earlier on 22 October 2009 the Korean Court  had sent a copy of Yoonwoo’s claim in proceeding 6537 to Mr Huh’s postal address which was stated as the Dae Joo Group, President’s Room, Moodeong Building, 20-2 Geumnam-Ro 2 GA, Dong – GU, Kwangju.

98 Both Mr Kang and Mr Park gave evidence to this effect.

[140]   Mr Park says filing an answer document signals to the Court that a claim is being defended and prevents judgment from being automatically entered against a defendant. He also says that the answer document filed here confirmed to him that Mr Huh was aware of the claim and intended to defend the claim. That the filing of an answer document has this legal effect is confirmed by Mr Kang.

[141]   From my reading of the English translation of the answer documents they signal an intent on the part of the defendants to fight Yoonwoo’s claim on its merits, which is an act consistent with submission to jurisdiction.99 Furthermore, their filing answer documents had a material effect in the proceeding because it prevented Yoonwoo obtaining a judgment by default against the defendants. Thus, it was a significant step.

[142]   The judicial conciliation hearing was on 18 March 2010. Mr Park confirms that he was present at the hearing and that Mirae (in the form of its manager Mr Lee) appeared and represented all defendants. Mr Park’s evidence is that Mr Lee gave no indication to Yoonwoo or the three Judges at the hearing that he lacked authority to represent Mr Huh. Rather he acted as if he represented all defendants and he agreed to the terms of the Court orders on behalf of all defendants. Following this appearance, on the same day the Korean Court delivered the orders/judgment that Yoonwoo seeks to enforce in this Court. The judgment/orders made by the Court that day give no indication the Judges were concerned about Mr Lee’s ability to agree to orders being made against all defendants. The evidence from Mr Park and Mr Kang is that what occurred between the parties and the role played by the Korean court was consistent with recognised Korean law. Further there is no evidence to suggest there was anything different or remarkable about what had occurred. I have no reason to doubt Mr Park’s evidence because it is consistent with the Court record. Further, I do not consider the Korean Court would have entered judgment against Mr Huh unless it was satisfied Mr Lee was authorised by Mr Huh to act on his behalf.

[143]   It is enough for a submission to jurisdiction if a defendant takes one voluntary step in the proceeding.100 The above steps are, therefore, enough to establish that in

99     See Re Dulles’ Settlement Trust [1951] Ch 842.

100   Except for a protest to jurisdiction. Gordhan v Kerdemelidis [2013] NZHC 566.

this case Mr Huh submitted to the jurisdiction of the Korean Court. No-one at the time acted as if they saw any reason to look behind the documents the defendants had filed and to query if they were authorised or not. This is analogous to what occurs in New Zealand. Parties or their lawyers file documents like statements of defence and make appearances in Court. No-one checks to see if those actions are authorised. Rather they are presumed to be authorised until the contrary is shown to be true. Similarly in both New Zealand and Korea it would be a serious offence for a third party to falsely represent that he or she was a defendant or authorised to act on a defendant’s behalf. Unlike New Zealand the Korean Courts allow a company to be represented in Court by one of its officers. New Zealand law does allow for a representative to represent the interests of other persons having the same interests either with consent or as directed by the Court.101

[144]   Accordingly, I am satisfied that taken at face value all indicators pointed towards Mr Huh having been responsible for: (a) the filing of the two answer documents either personally or by authorising someone else to apply his name and wooden seal to those documents; and (b) appointing Mirae as the defendants’ representative. There was nothing to alert Yoonwoo or the Korean Court that something was amiss with the steps taken on behalf of Mr Huh.

[145]   I am satisfied that this evidence shows it is more probable than not that Mr Huh authorised Mr Lee to act on his behalf and that on their face these documents show that Mr Huh submitted to the Korean Court’s jurisdiction.

Proceeding 6520

[146]   Regarding the 6520 proceeding, Mr Park says the Dae Joo defendants filed an answer document on 1 September 2009 in response to Yoonwoo’s claim. The document is in evidence; it has the name of all four defendants in Korean characters with seals beside each name. Mr Huh’s name in Korean characters is on this document alongside an oval seal.

101 See Talley’s Fisheries Ltd v Minister of Immigration (1994) PRNZ 469. The case dealt with the former High Court Rules (r 78) and the now repealed Judicature Amendment Act 1972 (s 10). However present day equivalent provisions have the same effect: High Court Rules 2016, r 4.24.

[147]   Mr Park says that on 2 September 2009 the defendants submitted an application, sealed by all of them, to appoint Mirae as their representative in the 6520 proceeding. However, here Mr Park’s affidavit refers to a document in evidence which is a copy of the Korean Court’s case file record showing this step was taken. In his affidavit Mr Park does not identify where in the exhibits filed in this proceeding can be found a copy of the application to appoint Mirae as the defendants’ representative.

[148]   Without seeing the copy of the application to appoint Mirae as representative for all defendants I have only Mr Park’s second-hand account in evidence and the Korean Court’s record that such an application was filed and acted on by the Court. Because I have not been able to see the original document appointing Mirae as the representative party I have not seen direct evidence of Mr Huh’s name in Korean characters with seal alongside in relation to this document. However, the evidence of the Court record informs me this step was taken. Further the Judicial Conciliation on 8 April 2010 proceeded with Mr Lee appearing before the Court as representative of all defendants. This was confirmed by Mr Park’s evidence. I consider the Korean Court would not have entered judgment against all defendants with only Mr Lee present unless that Court was satisfied he was representing all defendants.

[149]   Moreover, the extent to which there is direct first-hand evidence of court documents for the 6520 proceeding showing Mr Huh’s name and seal is relevant here for proving whether he submitted to jurisdiction or not. Whilst there is only one piece of primary evidence in relation to the proceeding 6520 (the answer document) that is enough to establish submission to jurisdiction. The secondary evidence from Mr Park and the Korean Court’s record of the representative application being made and granted simply serves to corroborate the primary evidence. It follows that the omission to include in the evidence (or at least to have a witness draw my attention to) the actual document where all defendants applied to appoint Mirae as the representative is not fatal to proof of whether Mr Huh submitted to the Court’s jurisdiction in the 6520 proceeding.

[150]   Accordingly, I am satisfied the available evidence shows it is more probable than not that Mr Huh authorised Mr Lee to act on his behalf, and that on their face

there are Court documents that evidence Mr Huh submitting to the Korean Court’s jurisdiction.

[151]   The findings I have made on submission to jurisdiction answer the argument Mr Huh raises about not being properly served with the proceedings when they were commenced, and being resident in New Zealand. These matters are immaterial if he voluntarily participated in the proceedings, which I am satisfied is established by Yoonwoo’s evidence.

[152]   I acknowledge that what evidence there is regarding service is messy. Service was effected on what was understood to be Mr Huh’s place of business, which Mr Kang says is a proper address for service in Korea. However, here Mr Huh says he was no longer associated with the business address at the time service occurred. There is evidence the business address was also that of Mirae and other Dae Joo companies. There is evidence that at various times Mr Huh was a senior officer of Mirae and other Dae Joo companies. However, aligning those roles with the dates of service has not been easy. For this reason, I have avoided the question of service, given there is clear evidence of voluntary participation in both proceedings.

Fraud/no opportunity to be heard

[153]   I now turn to the question of whether Mr Lee or another person acted without Mr Huh’s authority in filing documents, purporting to be acting on Mr Huh’s behalf, in both proceedings and by agreeing to orders being made by the Court at each of the Judicial Conciliation hearings.

[154]   In Korea its citizens have official registered seals which are recorded in a government registry. There is no dispute that the seals affixed on the subject documents are not Mr Huh’s official registered seal. However, evidence given by Mr Kang and Mr Park for Yoonwoo, and from Mr Huh under cross-examination, revealed that in Korea the use of seals (rather than signatures) on legally binding documents

can include seals other than an official registered seal. These other seals are generally known as “common seals” or “wooden seals”.102

[155]   Further evidence given from Mr Kang and confirmed by Mr Park is that in Korea other persons can with the subject’s authority affix the subject’s wooden seal to legal documents and in that way bind the subject to their terms. Mr Huh did not dispute this. His evidence under cross-examination was ultimately reduced to him alleging that the seals stamped beside his name in the aforementioned court documents were placed there without his authority or approval, and further that Mr Lee acted without his authority or approval when he appeared at the Judicial Conciliation hearings in both proceedings and agreed to the Court making the orders against the defendants for payment of the sums of money set out in each of those orders.

[156]   I was not impressed by Mr Huh’s evidence. The decision of Associate Judge Bell records that Mr Huh’s case for setting aside the formal proof judgment Davison J entered against Mr Huh relied on an argument that the seals shown on the answer documents and document to appoint Mirae as representative of the defendants were not Mr Huh’s official registered seal. Mr Huh initially denied the use of other seals.  It was only during the hearing before me when he was confronted by evidence of his use of wooden seals on legal documents that Mr Huh acknowledged he did use wooden seals. This acknowledgment left him in the position of retreating to the position that Mr Lee had acted without Mr Huh’s authority. My impression is that Mr Huh’s evidence on this topic shifted ground whenever he faced evidence that showed his expressed stance was untenable. This left me with the clear impression he was neither a reliable nor a credible witness when it came to him denying the various steps taken in both proceedings, that appear to be either done by him or under his direction.

[157]   Further, there is good evidence from Mr Kang and Mr Park to the effect that if in Korea anyone filed court documents purporting to do so on behalf of a named defendant and used a wooden seal purporting to be that of the defendant without being authorised to act in this way this would be a serious offence akin to fraud in New Zealand. Indeed, Mr Kang described it as a criminal offence under the Korean

102   I shall use the latter term to refer to these seals as this is the term Mr Huh used under cross- examination.

Criminal Act 1953,103 art 239 which provides a specific offence where “a person who, for the purpose of uttering, counterfeits or wrongfully uses another’s seal, signature, written name, or emblem”. This offence is punishable by a term of three years’ imprisonment.

[158]   Further, Mr Huh has made no criminal complaint to Korean Police about Mr Lee’s conduct. Indeed, Mr Huh has taken no steps in the Korean Courts to bring to their attention Mr Lee’s alleged wrongful conduct. Put shortly, Mr Huh has taken no steps that he might have expected to take once he purportedly discovered that in two proceedings Mr Lee or someone else (presently unidentified by Mr Huh) had filed answer documents purporting to be filed by Mr Huh and that Mr Lee had wrongfully represented to the Korean Courts he was acting on Mr Huh’s behalf. If there can be any suggestion Mr Lee acted innocently, but mistakenly by filing answer documents for Mr Huh and the representative application Mr Huh has taken no steps to bring this to the Korean Court’s attention. There is nothing in the way Mr Huh has run his defence in the proceeding before me that shows he has tried to have the Korean judgments set aside for being entered based on fraud, wrongful use of Mr Huh’s seal and name or honest mistake by Mr Lee.

[159]   I consider that if Mr Huh had genuine grounds for asserting the answer documents, the application for representation, and Mr Lee’s appearance and consent to the Court orders in both proceedings were not done with Mr Huh’s authority he would have first taken some step in Korea to undo the judgments against him by those Courts. That is the logical starting point for attacking judgments obtained by fraud of mistake.

[160]   Accordingly, I see no basis for finding unauthorised actions were taken on  Mr Huh’s behalf in either proceeding. It follows that he cannot establish the judgments were obtained by fraud. Nor can he establish he did not have an opportunity to be heard. The Korean Court records contradict that.

103   Sometimes translated as “Penal Code”.

Contrary to public policy

[161]   In light of the findings I have made regarding fraud and no opportunity to be heard there is nothing else about the judgments that supports their enforcement being said to be contrary to public policy.

Conclusion

[162]   I have found the Korean judgments in proceeding 6537 and 6520 to be time barred by s 4(1)(a) of the LA 1950. For this reason alone the claim Yoonwoo brings to enforce the Korean judgments must fail.

[163]   In every other respect I am satisfied the Korean judgments were the result of a proper process in which Mr Huh voluntarily participated. But for the limitation difficulty I would have found both judgments are enforceable against Mr Huh.

Result

[164]   The Korean  judgments  in proceeding 6537  and  6520 are time barred  by    s 4(1)(a) of the LA 1950.

[165]Yoonwoo’s claims for enforcement are dismissed.

[166]Judgment is entered for Mr Huh.

[167]   As a self-represented litigant Mr Huh is entitled to reasonable disbursements but not costs.104 Beyond that, there would be no reason in this case why costs should not follow the event. Mr Huh has leave to file a memorandum on disbursements within 10 working days of this judgment. Yoonwoo has 10 working days to file a response.

Duffy J

104 Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA). In McGuire v Secretary for Justice [2018] NZSC 116 the Supreme Court questioned the rule that self-represented litigants cannot recover costs. However it confirmed that while reform via the legislature or the Rules Committee was in progress the rule was to apply normally.