Ellis v Dariush-Far [2007] QSC 142

SUPREME COURT OF QUEENSLAND CITATION: Ellis v Dariush-Far [2007] QSC 142 PARTIES: GEOFFREY ELLIS (applicant) v ALEXANDER DARIUSH-FAR (respondent) FILE NO/S: BS2180/07 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: District Court at Christchurch New Zealand DELIVERED ON: 13 June 2007 DELIVERED AT: Supreme Court at Brisbane HEARING DATE: 21 May 2007 JUDGE: Lyons J ORDER: 1. That the judgment of the District Court of New Zealand, Christchurch Registry, in the matter number 1099 of 2000 made on 4 April 2001 be registered in the Supreme Court of Queensland as a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) 2. That pursuant to an Order of the District Court of New Zealand, Christchurch Registry dated 23 March 2007, the judgment be registered in the name of Geoffrey Norman Ellis 3. The amount payable by the Judgment Debtor to the Applicant is NZD $154,639.93 which is made up of the following: (i) The judgment sum of NZ $140,000.00; and (ii) Interest payable under the laws of New Zealand which was assessed by the District Court of New Zealand as being $14,639.93 CATCHWORDS: PRIVATE INTERNATIONAL LAW – FOREIGN JUDGMENTS – EFFECT AND ENFORCEMENT – LEGISLATION FOR ENFORCEMENT OF JUDGMENTS – JUDGMENTS OF COURTS OF COUNTRIES OTHER -- 1 of 8 -- 2 THAN AUSTRALIAN STATES OR TERRITORIES – QUEENSLAND – where judgment made in New Zealand in 2001 – where application for registration of a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) made out of time - whether judgment could be registered in Queensland pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) Foreign Judgments Act 1991 (Cth) s 6 Uniform Civil Procedure Rules 1999 r 947E Companies Act 1993 (NZ) s 260 Property Law Act 1952 (NZ) s 130 District Court Rules of New Zealand 1992 r 568 Brisbane Land Pty Ltd v Pine Rivers Shire Council [1998] QCA 255, applied COUNSEL: C F O’Meara for the applicant M H Hindman for the respondent SOLICITORS: Carne Reidy Herd for the applicant McInnes Wilson Lawyers for the respondent [1] LYONS J: This application filed on 13 March 2007 relates to an application to register a judgment debt in the amount of $NZ 154,639.93 made on 4 April 2001 in the District Court of New Zealand. [2] The application filed on 13 March 2007 was first heard on 20 March 2007 but was adjourned after concerns were raised about the effectiveness of the assignment of the judgment debt to the applicant. This has since been addressed. [3] An amended originating application was then filed on 8 May 2007 seeking the following orders: 1. That the Judgment of the District Court of New Zealand, Christchurch Registry, in matter number 1099 of 2000 made on the 4 April 2001 be registered in the Supreme Court of Queensland as a Foreign Judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth). 2. That the Judgment debt referred to in paragraph 1 be registered in the name of Geoffrey Norman Ellis, who is the assignee of the Judgment Debt, pursuant to an order of the District Court of New Zealand, Christchurch Registry dated 23 March 2007. 3. That leave be given to the Applicant to register this Judgment as it is more than six years since the Judgment was given pursuant to s 6 (5) Foreign Judgments Act 1991. 4. The Judgment Debt be expressed in $NZ currency. That is $NZ 140,000.00 plus interest as assessed at $14,639.93, a total of $NZ 154,639.93. 5. The Applicant be permitted pursuant to Rule 947J to serve notice of registration of the judgment on the Respondent by serving the Respondent’s Solicitors on the record (if any). 6. The Respondent pays the Applicant’s costs of and incidental to this Application. -- 2 of 8 -- 3 7. Any other such order as this Honourable Court considers necessary. [4] As will appear, the arguments originally presented to the Court underwent development. However I think it is helpful to look first at the arguments that were originally presented. At the hearing on 21 May 2007 the applicant sought leave to have the judgment of 4 April 2001 registered as the application was not within six years of the original judgment. The basis of the application [5] This application was made pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth) (“the Act”) and its regulations. This Act extends Part 2 to each District Court of New Zealand. The scheme under the Act is a simplified administrative arrangement of reciprocal enforcement where a foreign judgment is registered and enforced as if it were a judgment of the local court. The applicant is the judgment creditor as he is the person in whom the rights under the judgment have become vested by assignment. The request for leave [6] Section 6(5) of the Act provides as follows: “Application for, and effect of, registration of foreign judgments (5) The court may, by order, extend the period within which such an application may be made.” [7] The applicant submits that the court has a discretion to grant leave pursuant to subsection 6(5) of the Act and that whilst no guidance is given in the Act as to the circumstances in which leave should be granted, the submission is that the ordinary principles with respect to the granting of leave should apply and the application should be determined on the merits of the case. [8] The reasons for delay are set out in the affidavit of Salvatore La Spina sworn on 12 March 2007 and he states that the company known as First Foods Limited obtained judgment against the respondent on 4 April 2001. The company changed its name on 22 April 2003 to FFO Limited (“FFO”). The applicant was the sole director of the company at the time the judgment was obtained against the respondent. FFO was wound up on or about 24 January 2005 but this was reopened by the High Court of New Zealand on 6 November 2006 and FFO was restored to the Companies Register on 9 November 2006. The judgment debt has been assigned to the applicant in his own name in accordance with a deed of assignment dated 19 January 2007. [9] The applicant who is a resident of New Zealand seeks to register and enforce the judgment in his own name. The affidavit states that the applicant was delayed in bringing the application because it was not until 2005 that the applicant became aware of the respondent’s whereabouts on the Gold Coast. Furthermore the affidavit states that as the company had been wound up in liquidation and had been deregistered from the New Zealand Company Register it had to be reregistered and a deed of assignment with the liquidators entered into before the applicant could pursue the debt against the respondent. In particular, delay ensued because the judgment debt had been assigned to the applicant in his own name pursuant to the -- 3 of 8 -- 4 deed of assignment made between him and the liquidators of the company FFO in accordance with s 260 of the Companies Act 1993 (NZ). [10] As previously indicated, the matter was heard ex parte in this Court on 20 March 2007 but was adjourned due to an issue as to whether the deed of assignment effectively assigned the judgment debt to the applicant. Accordingly, subsequent advice was given to have a further deed of assignment prepared and executed to resolve the concern which had been raised. The applicant also submits that the difficulty in serving the respondent further contributed to the delay. [11] Accordingly, the applicant submits that there are valid reasons for the delay. The applicant also submits that the original assignment of debt was served within six years and that the current application was served within six years from the date of service of the judgment on the respondent’s solicitors who declined service. [12] The respondent opposes the applicant’s application for registration of the New Zealand judgment pursuant to the Act on the basis that the application is out of time and there is no discretion allowing time to be extended. Is there a discretion to extend the time? [13] Section 6(1) of the Act provides: “(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.” [14] Section 6(5) is the section which the applicant relies on and this section provides: “(5) The court may, by order, extend the period within which such an application may be made.” [15] Section 6(4) however is also relevant and it provides: “(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.” [16] Having considered the section, I am satisfied that the discretion to extend time in subsection (5) is clearly referable to a respondent’s application in subsection (4). It is the application last referred to in the section before the discretion is given and the words “such application” are used. I do not consider that subsection (5) applies to the applicant’s application in subsection 1 to register a foreign judgment where a specific time limit of six years is clearly expressed. I am satisfied that if there was to be a discretion in respect of the time limit, then it would have been inserted in subsection 1 and the words “any time within 6 years” would not have been used. [17] I consider that the order extending the period “within which such an application may be made” refers to the application referred to in the preceding subsection 4 which is an application which is to be made under s 7 to have the registration of the -- 4 of 8 -- 5 judgment set aside. Discretion to extend the time for the respondent’s application to set aside a registered judgment is entirely reasonable because pursuant to subsection 4 the court might specify 28 days from the date of the order for the respondent to make an application to set aside the registration of a judgment. The registration of the judgment may have occurred ex parte. If the applicant does not then serve the order until late in the 28 day period, it is easily seen why the court may grant the respondent more time than initially provided in the order. [18] Furthermore subsection 10 specifically refers to “...the period fixed under subsection (4) (including any extensions of that period under subsection (5)”. Accordingly, I am not satisfied that there is a discretion in subsection 6(5) to allow time for an application to the appropriate court for the registration of a New Zealand judgment to be extended after the six year period specified in subsection 1 has expired. Is the application in fact out of time? [19] At the hearing on 21 May 2007 the applicant submitted that if it was unsuccessful in obtaining leave to bring the application to have the judgment registered out of time, then it was submitted that the application was in fact within the six year period. [20] In particular, the applicant submitted that the date of filing of the originating application in this Court was 13 March 2007 and that this filing date is the relevant date for the purposes of s 6(1). On the basis therefore that the filing of the application was within six years, this would be sufficient to satisfy s 6(1), even if the application itself was not determined until after the six years had expired. Both parties were given leave to make further written submissions. [21] In the further written submissions the applicant submitted not only that the application was within time in accordance with s 6(1) but that the judgment fulfilled the requirements of s 6(6). The applicant submits that the phrase “at the date of application” in s 6(6) is the date when the application is heard and does not refer to the date the application is filed. Therefore as the judgment was enforceable in New Zealand at the time the application was heard (after adjournment) on 21 May 2007, s 6(6) does not prevent the Court from registering the judgment. [22] The applicant further submits that if the respondent’s construction of the phrase “at the date of application” is accepted as meaning the date the application is filed then the submission would be that the judgment was in fact enforceable on 13 March 2007. Essentially the applicant submits that irrespective of whether the date of the application referred to in s 6(6) is the date of filing or the date of hearing, the judgment was enforceable on both dates. Section 6(6) provides as follows: “(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.” [23] The applicant submits that the judgment was enforceable from the date of the assignment in January 2007 pursuant to the Property Law Act 1952 (NZ) and that -- 5 of 8 -- 6 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. [24] On 23 March 2007 the District Court at Christchurch made orders including: “The time for service and the issuing of process against the said Defendant pursuant to rule 568(3) be abridged so as to allow the defendant to be served with this Order by 28 March 2007 and to allow the applicant to issue proceedings in relation to this Order against the defendant by 29 March 2007.” [25] Rule 568 (3) provided that any order made had to be served on the persons affected and that no process could issue until the expiration of seven days after the day of service. [26] The respondent submits that the relevant date is the date of the filing of the application rather than the day the application is actually heard. The respondent submits however that the judgment was not actually enforceable on that date in New Zealand and accordingly the judgment could not have been registered on 13 March 2007. The respondent states that the judgment was not enforceable on that date because r 568 had to be complied with because of the assignment of the judgment debt to the applicant and until that rule was complied with by the applicant, the applicant was not entitled to issue any process relating to the judgment, that is, to enforce the judgment. [27] The respondent submits that the application brought by the applicant pursuant to r 568 was not heard until 23 March 2007 and on that date orders were made including an order that the time for service was abridged allowing the defendant to be served by 28 March 2007 and allowed the applicant to issue proceedings against the defendant by 29 March 2007. The respondent submits however that service did not in fact occur until 4 April 2007 which was therefore after the six years from the date of judgment had passed. [28] The respondent submits that the judgment could not be enforced in New Zealand until after the application was filed in this court on 13 March 2007 and accordingly because the judgment could not be enforced in New Zealand at that time the judgment was prohibited from being registered in this court because the requirements of s 6(6) could not be fulfilled. What is the meaning of “at the date of the application”? [29] Turning to the threshold issue of what is meant by the term “at the date of the application”. It is clear that the s 6(1) of the Act states that a judgment creditor “may apply to the appropriate court at any time within 6 years” and s 6(6) states that “a judgment is not to be registered if at the date of the application…it could not be enforced in the country of the original court”. [30] 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. -- 6 of 8 -- 7 [31] 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 Council1 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 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” [32] Accordingly the relevant date for the purposes of s 6(1) is 13 March 2007. Was the applicant a judgment creditor? [33] Section 6(1) provides that a judgment creditor under a judgment may apply to have the judgment registered. Was the applicant a judgment creditor at the time of the application was filed on 13 March 2007? [34] Section 3 of the Act provides that: “‘judgment creditor’, in relation to a judgment, means the person in whose favour the judgment was given, (whether or not a sum of money was given under the judgment) and includes a person in whom the rights under the judgment have become vested by succession, assignment or otherwise.” The judgment debt was assigned to the applicant in his own name in accordance with a deed of assignment made between the applicant and the liquidators of FFO on 19 January 2007 in accordance with s 260 of the Companies Act 1993 (NZ). [35] Rule 568(1) includes: “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 parties 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…”. [36] This assumes an effective assignment of the judgment, and the entitlement of the assignee to enforce. The rule provides a mechanism to facilitate enforcement. It does not affect the status of the applicant as a judgment creditor. That depends on the assignment of the judgment. [37] I am therefore satisfied that the applicant is a judgment creditor. 1 [1998] QCA 255 at p 2. -- 7 of 8 -- 8 Was the judgment enforceable in New Zealand on 13 March 2007? [38] The ultimate question then is whether the judgment can be registered and the issue that needs to be determined is whether as at 13 March 2007 “it could not be enforced in the country of the original court”. [39] 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. [40] 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. [41] Accordingly, given that the requirements of section 6 of the Act have been satisfied, the New Zealand judgment made on 4 April 2001 should be registered. ORDERS 1. That the judgment of the District Court of New Zealand, Christchurch registry, in the matter number 1099 of 2000 made on 4 April 2001 be registered in the Supreme Court of Queensland as a foreign judgment pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth). 2. That pursuant to an Order of the District Court of New Zealand, Christchurch Registry dated 23 March 2007 the Judgment be registered in the name of Geoffrey Norman Ellis. 3. The amount payable by the Judgment Debtor to the Applicant is NZD $154,639.93 which is made up of the following: (i) The judgment sum of NZ $140,000.00; and (ii) Interest payable under the laws of New Zealand which was assessed by the District Court of New Zealand as being $14,639.93. -- 8 of 8 --