Bank of New Zealand v Airey [1994] QSC 189

IN THE SUPREME COURT OF QUEENSLAND No. 534 of 1994 Brisbane Before Justice White [Bank of New Zealand v. Maxwell Hugh Airey] IN THE MATTER of THE FOREIGN JUDGMENTS ACT 1991 (CTH) AND: BANK OF NEW ZEALAND Judgment Creditor MAXWELL HUGH AIREY Judgment Debtor REASONS FOR JUDGMENT- WHITE J. Judgment delivered: 22 July 1994 CATCHWORDS: Counsel: Solicitors: Hearing date: Application to register foreign judgment - entitlement to be heard by debtor prior to registration- s.7(2)(viii) Solicitor for applicant Judgment debtor in person Thynne & Macartney as town agents for Primrose Couper Cronin Rudkin for applicant 13 July 1994 -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND IN THE MATTER of No. 534 of 1994 THE FOREIGN JUDGMENTS ACT 1991 (CTH) AND: BANK OF NEW ZEALAND Judgment Creditor MAXWELL HUGH AIREY Judgment Debtor REASONS FOR JUDGMENT - WHITE J. Judgment delivered: 22 July 1994 The Bank of New Zealand has sought an order that the judgment of the District Court of New Zealand at Auckland dated 9 August 1993 whereby it was ordered that Maxwell Hugh Airey pay NZ$15,589.91 together with interest and costs of NZ$2,210.10 to National Australia Bank (N.Z.) Limited be registered under Part II of the Foreign Judgments Act 1991 (Cth). The judgment debtor ("Mr. Airey") appeared to oppose the making of such an order. Section 6 of the Foreign Judgments ·Act 1991 ("the Act") provides for the registration of a foreign judgment and in subsection (4) provides that the order of the Court when ordering registration must state the period within which an application may be made to have the registration of the judgment set aside. Mr. Airey submitted that he ought to be permitted to oppose the -- 2 of 6 -- 2 registration on this application rather than await the making of the order for registration and then seek to have it set aside on a subsequent occasion. The solicitor who appeared for the applicant did not oppose this course. Common sense and authority would suggest that matters which might be raised by a judgment debtor on an application to set aside the registration of a foreign judgment might be considered on the initial application to register the judgment. In Hunt v. B.P. Exploration Co (Libya) Ltd. (1980) 54 A.L.J.R. 205 Stephen, Mason and Wilson JJ observed at p.208 that although the Queensland Act (The Reciprocal Enforcement of Foreign Judgments Act 1959) did not specifically say so it was envisaged that the application for registration would be made ex parte. The Commonwealth Act is analogous. Their Honours did not however seem to suggest that consideration of matters which might cause the registration to be set aside could not be made on the occasion of the application to register. Burt J. in Crick v. Hennessy [1973] W.A.R. 74 at p. 75 in the face of a submission to the contrary, concluded that it was proper to consider whether or not the registration would be liable to be set aside on an application to register. Macrossan J. (as his Honour then was) in the Full Court in Barclays Bank Ltd. v. Piacun [1984] 2 Qd.R. 476 noted that the judgment debtor appeared to resist the registration before the chamber judge having had notice of the application. There was no suggestion that this was impermissible. Good sense would recommend that a judgment be not registered where a debtor appears to challenge the registration and could do so successfully. -- 3 of 6 -- 3 Mr. Airey raised a number of matters in his affidavit in opposition to registration not all of which he sought to pursue on the h~aring of the application. He conceded that he was confined to the grounds set out in Section 7(2)(a) and (b) of the Act, see Hunt v. B.P. Exploration Co. (Libya) Ltd., supra. Mr. Airey was represented by counsel who argued the merits at the hearing in New Zealand. It was an application for summary judgment to recover an outstanding line of credit balance of some NZ$15,589.91 which Mr. Airey arranged through Broadbank Corporation Limited. Mr. Airey swore and filed an affidavit in those proceedings going to the merits. In this Court Mr. Airey submitted that because proceedings were brought in New Zealand in the name of the the National Australia Bank (NZ) Limited the ''rights under the judgment are not vested in the person by whom the application for registration was made", s. 7(2)(viii) of the Act. In paragraph 8(c) of his affidavit in these proceedings he swore that he did not receive notice from the National Australia Bank (NZ) Limited or from the applicant, the Bank of New Zealand, with regard to the assignment to them of Broadbank's rights nor that National Australia Bank (NZ) Limited had proved that it had acquired rights from Broadbank against him. He thus denied that he had a contractual relationship with either the National Australia Bank (NZ) or with the Bank of New Zealand which obliged him to repay any money to either. The question of the assignment of the debt, if it were an issue, could have been raised in the summary judgment proceedings but was not. The material in support of those proceedings -- 4 of 6 -- 4 included a letter from the National Australia Bank (NZ) Limited's solicitors to Mr. Airey in which the following appears: "we act for National Australia Bank (NZ) Limited formerly known as Broadbank Corporation Limited to which you are indebted as at the 26th of November 1992 in the sum of $15,589.91 being the balance owing on your Funds Management Account. Interest is accruing on the sum of $15,589.91 at a rate of $5.02 per day from the 27th of November 1992." In correspondence exhibited by Mr. Airey to his affidavit read in those proceedings he is shown as having written to the National Australia Bank (NZ) Limited raising accounting and other matters with it pertaining to the debt but not challenging its entitlement to pursue the debt. It seems to me that Section 7(2)(viii) of the Act does not refer to such matters of internal law but to the need for correspondence between the foreign judgment creditor and the applicant for registration. Here, the applicant for registration is the Bank of New Zealand and the judgment creditor appears on the New Zealand judgment as the National Australia Bank (NZ) Limited. Mr. Fullarton, solicitor for the applicant, has exhibited an order of the High Court of New Zealand by which all of the property, rights and powers of every description of the National Australia Bank (NZ) Limited were transferred to and vested in the Bank of New Zealand with effect from 1 October 1993. Accordingly, I am satisfied that the rights under the judgment are vested in the applicant for registration. No other basis for refusing registration has been advanced by Mr. Airey, whom, I might add, is a solicitor ~n practice in this State. At the date of hearing the application Mr. Fullarton has sworn as required by the Act that the prevailing rate of exchange -- 5 of 6 -- -------- 5 between the Australian dollar and the New Zealand dollar as reported by the Australian Financial Review was NZ$1 . 21 to A$1 . 00. He has also sworn that as informed by a solicitor of the High Court of New Zealand interest on the subject judgment is payable under the District Courts Act 1992 (NZ) at the rate of 11 percent per annum. The orders of the Court are that: ( 1 ) the judgment of the District Court of New Zealand at Auckland dated 9 August 1993 whereby it was ordered that Maxwell Hugh Airey pay NZ$15,589.91 together with interest and costs of NZ$2,210.10 to National Australia Bank (NZ) Limited be registered under Part II of the Foreign Judgments Act 1991 (Cth); (2) the amount payable by the judgment debtor is A$14,710.75 together with interest on the judgment sum at 11% per annum from 9 August to the date of registration; (3) the judgment debtor pay the judgment creditor the reasonable costs of and incidental to the registration including the costs of obtaining a certified copy of the judgment to be taxed. -- 6 of 6 --