Ellis v Dariush-Far [2007] QCA 398 (2008) 242 ALR 635

SUPREME COURT OF QUEENSLAND CITATION: Ellis v Dariush-Far [2007] QCA 398 PARTIES: GEOFFREY ELLIS (applicant/respondent) v ALEXANDER DARIUSH-FAR (respondent/appellant) FILE NO/S: Appeal No 5840 of 2007 SC No 2180 of 2007 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 16 November 2007 DELIVERED AT: Brisbane HEARING DATE: 8 November 2007 JUDGES: Williams and Keane JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Appeal dismissed 2. Appellant to pay respondent's costs on the standard basis CATCHWORDS: PRIVATE INTERNATIONAL LAW – FOREIGN JUDGMENTS - EFFECT AND ENFORCEMENT – LEGISLATION FOR ENFORCEMENT OF JUDGMENTS – JUDGMENTS OF COURTS OF COUNTRIES OTHER THAN AUSTRALIAN STATES OR TERRITORIES – QUEENSLAND – where third party recovered judgment from appellant in the District Court of New Zealand – where third party assigned judgment debt to respondent – where respondent applied to have judgment registered as foreign judgment in the Supreme Court of Queensland – whether deed of assignment effective to assign judgment debt to respondent – whether judgment enforceable in New Zealand for purposes of Foreign Judgments Act 1991 (Cth) s 6(6) – meaning of "the date of the application" in s 6(6) Foreign Judgments Act 1991 (Cth) District Court Rules 1992 (NZ), r 568 Foreign Judgments Act 1991 (Cth), s 3, s 6 Property Law Act 1952 (NZ), s 130(1) -- 1 of 9 -- 2 Brisbane Land Pty Ltd v Pine Rivers Shire Council [2000] 1 Qd R 493, cited Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748, cited O'Loughlin v Mount (1998) 71 SASR 206, cited Re Johnson; Ex parte Johnson v Tonkin (1994) 123 ALR 607, distinguished World Square Pty Ltd v Taylor [1990] 1 Qd R 583, distinguished COUNSEL: P A Hastie for the appellant D C Rangiah for the respondent SOLICITORS: McInnes Wilson for the appellant Carne Reidy Herd for the respondent [1] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and there is nothing I wish to add thereto. I agree with the orders proposed. [2] KEANE JA: On 13 June 2007, the learned primary judge made orders for the registration in the Supreme Court of Queensland as a foreign judgment pursuant to Pt 2 of the Foreign Judgments Act 1991 (Cth) ("the Act") of the judgment given by the District Court of New Zealand, Christchurch registry, No 1099 of 2000 ("the New Zealand judgment") on 4 April 2001. [3] The appellant, the judgment debtor, seeks to have the orders for the registration of the New Zealand judgment set aside. The principal basis of the appeal is the contention that the learned primary judge erred in concluding that the judgment debt under the New Zealand judgment had been effectively assigned to the respondent. This contention is essentially concerned with the proper construction of the instrument whereby the debt was assigned. [4] Before I discuss the arguments agitated on the appeal, I will summarise the history of the proceedings, the relevant provisions of the Act and the conclusions of the learned primary judge. The proceedings [5] On 4 April 2001, First Foods Limited recovered judgment in the sum of NZ$154,639.93 against the appellant in the District Court of New Zealand, Christchurch registry.1 [6] First Food Limited changed its name to FFO Limited in 2003, and was wound up in liquidation in January 2005. It was restored to the New Zealand Companies Register on 9 November 2006.2 [7] On 19 January 2007, the liquidators of FFO Limited and the respondent entered into a deed of assignment assigning the judgment debt to the respondent.3 Notice of the assignment of 19 January 2007 was served on the appellant on 12 March 2007. 1 Ellis v Dariush-Farr [2007] QSC 142 at [1]. 2 [2007] QSC 142 at [8]. 3 [2007] QSC 142 at [8]. -- 2 of 9 -- 3 [8] The relevant parts of the deed of assignment are as follows: "BACKGROUND: A. The Liquidators are the Liquidators of FFO Limited (In Liquidation) which was placed into liquidation on the 9th June 2003 by a special resolution of the shareholders at Christchurch. Wayne John Deuchrass and Iain Andrew Nellies of Insolvency Management Limited were appointed liquidators jointly and severally. B. In the course of the administration of the liquidation, an issue arose, relating to a judgement debt granted on the 2 nd of April 2001 by the District Court in Christchurch in the company's favour against Alexander [Dariush]-Far for an amount of $140,000.00 plus interest. C. The liquidators have reviewed the legal advice on the recovery and deem that it is uneconomic to pursue the debt given the debtors elusiveness and that he no longer resides in New Zealand. D. The director however is keen to pursue the recovery of this debt and has sought to have the debt assigned to him personally. E. The parties have agreed to an assignment of the debt and payment of such debt as evidenced by the Deed. IT IS RECORDED AS FOLLOWS: 1. The liquidators assign the debt due by Alexander Dariush- Far to Geoffrey Norman Ellis as purchaser under an agreement for sale and purchase for the sum of 10% of any net recovery after the payment of legal costs or $1.00 which ever is the greater…" [9] On 13 March 2007, the respondent filed an originating application in the Supreme Court of Queensland seeking orders that the New Zealand judgment be registered in the Supreme Court of Queensland as a foreign judgment pursuant to the Act. On 20 March 2007, the application came before a judge of the Supreme Court, and was adjourned.4 [10] A further deed of assignment between the liquidators of FFO Limited and the respondent was entered into on 22 March 2007 in order to avoid any possible uncertainty as to the effect of the deed of assignment of 19 January 2007. [11] On 23 March 2007, the District Court of New Zealand, Christchurch registry, ordered that the respondent be substituted as plaintiff for FFO Limited in respect of the judgment debt, and that the respondent be "at liberty to take such proceedings against the [appellant] … for the amount of the unsatisfied Judgment and costs in this proceeding." That order allowed for the abridging of the time for service to allow the defendant to be served with the order by 28 March 2007. [12] On 4 April 2007, the appellant was served with the order and the further deed of assignment dated 22 March 2007. 4 [2007] QSC 142 at [2]. -- 3 of 9 -- 4 [13] On 8 May 2007, the respondent filed an amended application,5 which was heard on 21 May 2007. The Act [14] Section 6 of the Act provides relevantly as follows: "Application for, and effect of, registration of foreign judgments (1) A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after: (a) the date of the judgment; or (b) where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings; to have the judgment registered in the court. … (3) Subject to this Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered. (4) The court's order must state the period within which an application may be made under section 7 to have the registration of the judgment set aside. (5) The court may, by order, extend the period within which such an application may be made. (6) A judgment is not to be registered if at the date of the application: (a) it has been wholly satisfied; or (b) it could not be enforced in the country of the original court. (7) Subject to sections 7 and 14: (a) a registered judgment has, for the purposes of enforcement, the same force and effect; and (b) proceedings may be taken on a registered judgment; and (c) the amount for which a judgment is registered carries interest; and (d) the registering court has the same control over the enforcement of a registered judgment; as if the judgment had been originally given in the court in which it is registered and entered on the date of registration. … (12) If, on the day of the application for registration of a judgment, the judgment of the original court has been partly satisfied, the judgment is not to be registered in respect of the whole amount payable under the judgment of the original court, but only in respect of the balance remaining payable on that day. …" 5 [2007] QSC 142 at [3]. -- 4 of 9 -- 5 [15] The learned primary judge did not rely upon the further deed of 22 March 2007 or the orders made in New Zealand in relation to it. Her Honour held that the deed of assignment dated 19 January 2007 was effective to assign the New Zealand judgment debt to the respondent.6 The arguments in this Court Construction of the deed [16] The appellant asserts that the deed dated 19 January 2007 did not effect an assignment of the judgment debt. In this regard, it is said that the deed did not plainly make over the judgment debt to the respondent.7 [17] The respondent submits that the "judgment debt" is clearly identified in the recitals at paragraph B of the deed. In my respectful opinion, the respondent's submission is clearly to be preferred. [18] When the deed is read as a whole, there can be no doubt that the subject matter of the deed of 19 January 2007 was the New Zealand judgment debt. It cannot be disputed that it is legitimate to have regard to the recitals to determine the true construction of the terms where there is otherwise some doubt about the construction.8 Recital B to the deed of assignment clearly identifies the New Zealand judgment debt as the subject matter of the assignment effected by cl 1 of the deed. [19] Clause 1 of the deed purported, in terms, to take immediate effect as an assignment by way of sale of the debt. There is, in my respectful opinion, nothing uncertain or ambiguous about the intended effect of the deed. [20] Section 130(1) of the Property Law Act 1952 (NZ) provides: "Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal or equitable thing in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim that debt or thing in action, shall be and be deemed to have been effectual in law (subject to all equities that would have been entitled to priority over the right of the assignee if this Act had not been passed) to pass and transfer the legal or equitable right to that debt or thing in action from the date of the notice, and all legal or equitable and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor." [21] Notice of the assignment was served on the respondent on 12 March 2007. Accordingly, the assignment was effective from that date at the latest. [22] The definition of "judgment creditor" in s 3 of the Act expressly includes a person in whom rights under the judgment have become assigned. Accordingly, the 6 [2007] QSC 142 at [8], [34] and [39]. 7 Cf William Brandt's Sons and Co v Dunlop Rubber Co [1905] AC 454 at 462. 8 O'Loughlin v Mount (1998) 71 SASR 206 at 218 – 219; Chacmol Holdings Pty Ltd v Handberg (2005) 215 ALR 748 at [39] – [44] (and the cases referred to therein). -- 5 of 9 -- 6 respondent was a judgment creditor pursuant to the Act at the time the application was filed and at the time the application was heard. Was the New Zealand judgment enforceable? [23] Under s 6(6) of the Act, the judgment could be registered if it was enforceable in New Zealand. The learned primary judge held that the New Zealand judgment could be enforced in New Zealand as at 13 March 2007. The appellant asserts that her Honour erred in so holding. In particular, the appellant contends that the respondent was required to comply with r 568 of the District Court Rules 1992 (NZ) in order for the judgment to be enforceable. [24] Rule 568(1) was relevantly in the following terms: "Where any change has taken place after judgment, by death, assignment, or otherwise, in the parties entitled to enforce a judgment or order or in the parties liable under a judgment or order, the party claiming to be entitled to enforce the judgment or order may apply ex parte to the Court or the Registrar for leave to issue the necessary process, and the Court or the Registrar may – (a) If satisfied that the party so applying is entitled to issue the process, make an order to that effect. (b) If not so satisfied, order that any issue or question necessary to determine the rights of the parties be tried and determined in such manner as the Court or Registrar thinks fit." [25] Her Honour held relevantly: "I am satisfied that the judgment could be enforced in New Zealand on 13 March 2007. Once the deed of assignment was executed on 19 January 2007 under s 130 of the Property Law Act 1952 (NZ), the applicant as assignee obtained the same legal rights that the assignor had, namely, the right to enforce the judgment. Whilst there needed to be a further procedural step under r 568 of the District Court Rules 1992 (NZ) this did not mean the judgment could not be enforced but rather it could be enforced subject to a further procedural step. Rule 5 of the District Court Rules in New Zealand is a provision which is similar to UCPR 371 and provides that a failure to comply with the rules in issuing or continuing a proceeding is an irregularity and does not nullify what has been done. Any failure to comply with r 568 would have been an irregularity only. Furthermore as the Court has power under r 5(2) (b) to cure irregularities it cannot be said that the judgment could not be enforceable in New Zealand as at 13 March 2007 had enforcement action been taken by the applicant before compliance with r 568."9 [26] I note that it is not suggested that, in the absence of evidence of New Zealand law, it was not open to the learned primary judge to come to her own view of the effect of r 568.10 [27] In my respectful opinion, her Honour was correct to hold that the judgment was enforceable in New Zealand on 13 March 2007. Rule 568 of the District Court 9 [2007] QSC 142 at [39] – [40]. 10 Cf Damberg v Damberg (2001) 52 NSWLR 492 at [118] – [147]. -- 6 of 9 -- 7 Rules 1992 (NZ) facilitates, rather than impedes, the enforcement of judgments.11 In this regard, it is to be distinguished from the rules of court considered in World Square Pty Ltd v Taylor12 and Re Johnson; Ex parte Johnson v Tonkin13 where the rules in question erected a bar to further proceeding on a judgment in the absence of the grant of leave. Rule 568 is not concerned to provide for the lifting of such a bar: it facilitates enforcement of a judgment debt by an assignee who has an entitlement to proceed without proof of anything more than his or her identity as the judgment creditor. The respondent, as assignee of the judgment debt, needed to do nothing more to establish his entitlement to enforce the judgment debt. Clearly, the judgment could be enforced by him. The obtaining of leave was merely an aspect of the process of enforcement. [28] For these reasons, the appeal must fail. The respondent's contention [29] The respondent also seeks to support the decision below by the contention that her Honour erred in holding that "the date of the application" referred to in s 6(6) of the Act was the date the application was made, rather than the date the application was heard.14 The respondent's application was heard on 21 May 2007. By then, the District Court of New Zealand had ordered that the respondent be substituted for FFO Limited in respect of the judgment debt and be at liberty to proceed, so that if the respondent's contention is correct her Honour's order can be sustained on this alternative basis. [30] It is not strictly necessary to deal with this contention for the reasons which I have given; but, because this contention concerns the construction of the Act in relation to an important point of practice, it is desirable to deal with the point. [31] Section 6(1) of the Act provides that a judgment creditor may apply to the court at any time within six years after the date of the judgment. The appellant argues that the date of the application referred to in s 6(1) must be the date of the filing of the application rather than its determination, and, because it "does not make any sense" if the date of application referred to in s 6(1) were different from that referred to in s 6(6), the date referred to in the latter provision must also be the date of filing. [32] The learned primary judge accepted this argument. Her Honour said: "I consider that the date of application in the two subsections is properly the same date. The real question however is, what is the date which is being referred to? Is it the date of the filing which must be within six years and at which point the judgment must be enforceable in New Zealand or is it the date of hearing which must be within six years and at which point the judgment must be enforceable. I consider that the date of the application is the date of the filing of the application. In the decision of Brisbane Land Pty Ltd v Pine Rivers Shire Council ([1998] QCA 255 at p 2) de Jersey CJ held in relation to a provision of the Local Government (Planning and Environment) Act 1990 which required 'A party intending to seek 11 [2007] QSC 142 at [36]. 12 [1990] 1 Qd R 583. 13 (1994) 123 ALR 607. 14 [2007] QSC 142 at [29] – [32]. -- 7 of 9 -- 8 leave of the Court of Appeal to appeal against a decision of the court must within 30 business days after the Court's decision is given to the party, apply to the Court of Appeal for leave to appeal against the decision' that: 'In my view the ordinary construction of the provision means that if the application for leave to appeal is filed within the 30 day prescribed period the formal requirement of the section has been satisfied, albeit that the application may not have been heard until the expiration of that 30 day period' Accordingly the relevant date for the purposes of s 6(1) is 13 March 2007."15 [33] The text of s 6(6) suggests, I think, that, in speaking of the date of the application, it is concerned with the date on which the application is actually heard and determined by the court. It is to be noted that s 6(6) of the Act provides: "A judgment is not to be registered if at the date of the application: (a) it has been wholly satisfied; or (b) it could not be enforced in the country of the original court." [34] This provision is a command directed to the court by which an application for registration of a judgment is to be decided. It is not a command directed to a judgment creditor not to apply for registration of a judgment if the judgment has been satisfied or cannot be enforced. The determination of the issue whether the judgment debt has been satisfied or is unenforceable is clearly a matter for the court required to decide whether or not to register the judgment. The occasion for that decision is necessarily the date of the determination whether the judgment debt has been satisfied or is unenforceable. It would do scant justice to the legislature to attribute to it the intention that a court should register a judgment which had been satisfied or had become unenforceable at the date when the court makes the decision to register the judgment merely because, at the time when the application was filed, the judgment was unpaid and enforceable. [35] This understanding of s 6(6) of the Act is confirmed by the text of s 6(12) of the Act. That subsection uses the expression "day of the application for registration", in contemplation of part payment of an amount payable under a judgment between the date of filing and the date of registration. Section 6(12) clearly refers to the date of the judicial decision as to registration as the "day of the application for registration". [36] I would, with respect, accept that the learned primary judge was correct in concluding that, when s 6(1) of the Act confers a right to apply for registration within six years of the date of the judgment, it is concerned with the making of an application in the manner prescribed by the applicable rules of court which govern the making of applications. An application can be said to have been made in this sense when the necessary papers have been filed in the court. That conclusion certainly accords with the decision of this Court in Brisbane Land Pty Ltd v Pine Rivers Shire Council.16 In my respectful opinion, however, s 6(6) and s 6(12) are clearly not speaking of the filing of an application, or of the time when that occurs. In s 6(6) and s 6(12), the legislature is speaking of the "date" and "day" of the 15 [2007] QSC 142 at [30] – [32] (citation footnoted in original). 16 [2000] 1 Qd R 493 at 494. See also Crowder v Moore [1997] 1 Qd R 24 at 27 – 28. -- 8 of 9 -- 9 application as the "date" or "day" on which the court actually hears and determines the application. [37] In my respectful opinion, "the date of the application" in s 6(6) of the Act is the date on which an application for registration is heard and determined. Conclusion and orders [38] The appeal should be dismissed. [39] The appellant should be ordered to pay the respondent's costs on the standard basis. [40] DAUBNEY J: I also agree with the reasons for judgment of Keane JA, and with the orders proposed. -- 9 of 9 --