Bank of New Zealand v Parmar Construction Ltd & Ors [1991] QSC 268

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE, 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CHAMBERS MASTER WHITE No 991 of 1991 BANK OF NEW ZEALAND and PARMAR CONSTRUCTION LIMITED & ORS and PA McLEAN and MA McLEAN BRISBANE .. DATE 19/9/91 9.30 A.M. JUDGMENT 1 ~REVlsEo-coPi.Eis~ssuE·o1 Court Reporting Bureau ;! Date, 3)) SfiP 1191 Plaintiff First Defendant Second Defendants -- 1 of 23 -- 10 20 30 50 60 190991 JUDGMENT MASTER: In this matter the orders of the Court are: 1. The registration of the judgment of the High Court of New Zealand dated 23 February 1990 pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1973 (NSW) ordered on 8 October 1990 in the Supreme Court of New South Wales against Peter Alan McLean be set aside. 2. The registration of the judgment of the High Court of New Zealand dated 23 February 1990 pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1973 (NSW) ordered 8 October 1990 in the Supreme Court of New South Wales against Margaret Anne McLean be not set aside. It is further ordered that: 3. The plaintiff pay the costs of the second defendant 4. .:_ Peter Alan McLean of and incidental to the application to set aside the registration of the judgment against him including the costs reserved on 8 October 1990 in the Supreme Court of New South Wales and 22 August 1991 in this Court to be taxed. Further ordered that the second defendant Margaret Anne McLean pay the costs of the plaintiff of and incidental to the registration of the New Zealand judgment and of the notice of motion to set aside such registration including the costs of 8 October 1990 and 22 October 1991 to be taxed. I publish my reasons. Govt. Printer, Old. 2 10. 20 30 40 50 60 -- 2 of 23 -- IN THE SUPREME COURT OF QUEENSLAND No. 991 of 1991 BETWEEN: AND: AND: BANK OF NEW ZEALAND Plaintiff PARMAR CONSTRUCTION LIMITED & ORS. First Defendant P.A. McLEAN and M.A. McLEAN Second Defendants REASONS FOR JUDGMENT - MASTER M. WHITE Delivered the Nineteenth day of September, 1991 CATCHWORDS: Setting aside registration of foreign judgment given in New Zealand Cross-vested from Supreme Court of New South Wales - Sufficiency of notice pursuant to s.8(1)(a)(iii) of Foreign Judgments (Reciprocal Enforcement) Act 1973 (N.S.W.) - Foreign law - Proof - Incorrect affidavit of personal service - Fraud - Basis for setting aside registration. COUNSEL: Mr. R. Perry for the plaintiff.Solicitor for the second defendants. SOLICITORS: Hopgood and Ganim for the plaintiff. Bruce S. Dulley as town agent for Richardson McGhie for the second defendants. HEARING DATE: 29th August, 1991 -- 3 of 23 -- IN THE SUPREME COURT OF QUEENSLAND No. 991 of 1991 BETWEEN: AND: AND: BANK OF NEW ZEALAND Plaintiff PARMAR CONSTRUCTION LIMITED & ORS. First Defendant P.A. McLEAN and M.A. McLEAN Second Defendants REASONS FOR JUDGMENT - MASTER M. WHITE Delivered the Nineteenth day of September, 1991 This matter was transferred to this Court by order of a Master of the Supreme Court of New South Wales by consent of the parties on the 30th November, 1990. In that Court there was a notice of motion to set aside registration of the judgment of the High Court of New Zealand dated the 23rd February, 1990 against the second defendants Peter Alan McLean and Margaret Anne McLean, which was entered in the Supreme Court of New South Wales on the 8th October, 1990 pursuant to Part II of the Foreign Judgments (Reciprocal Enforcement) Act 1973 (N.S.W.). After the transfer to this Court no further steps were taken by the second defendants to prosecute their motion. The solicitor for the plaintiff contacted the second defendants' solicitor in Queensland (where the second defendants reside) by letter dated the 5th July, 1991 seeking to have the matter listed for hearing in this Court. However, -- 4 of 23 -- I the second defendants did not choose to list it for hearing and the plaintiff relisted it for the 22nd August, 1991. The solicitor for the second defendants submitted that this was inappropriate as the second defendants did not, at this stage, wish to have their motion for setting aside the registration of the judgment heard. Once before this Court the motion was adjourned into Chambers where such matters are customarily heard. Order 98 r.6(4) of the Rules, which order concerns cross- vesting, requires the party who originated the proceeding within 14 days of the date of the order transferring the proceeding to file and serve a summons for directions. If it does not, then the other party or the court may do so. There may be some doubt as to whether, in this case, the "proceeding" referred to in Rule 6(4) should be taken to refer to the registration of the foreign judgment by the plaintiff in New South Wales or the notice of motion to set that judgment aside brought by the second defendants. It would be an arid exercise to attempt to determine that matter now and it is unnecessary to do so. It is clear that the Rules envisage that directions may need to be given for the further conduct of the proceedings but it will not always be so. Had the second defendants been in a position to do so I would have proceeded to hear the substantive matter on the 22nd August, 1991, however certain persons required by them for cross- examination were not available. Accordingly, directions were given to the parties relating to the filing of further -- 5 of 23 -- material and the matter was adjourned for hearing to the 29th August, 1991. Section 11 of the Jurisdiction of the Courts ( Cross- vesting) Act (Qld) 1987 provides that where the matter to be considered is a right of action arising under the written law of another State "the Court shall, in determining that matter apply the written and unwritten law of that State ... ". Accordingly, it was determined that the law to be applied was the Foreign Judgments (Reciprocal Enforcement) Act 1973 (N.S.W.). It is, as might be expected, substantially the same as the Reciprocal Enforcement of Judgments Act 1959 (Qld.). It may be convenient to mention at this stage that the second defendants allege that they received no notice of the date for the hearing of the summary judgment application in the High Court of New Zealand on the 23rd February, 1990 when a money judgment, the subject of the registration, was entered against them. Further, the second defendant, Peter McLean, swears that he was never served personally with the originating process as sworn to by Dennis Henry Magnussen, the process server. The relevant New South Wales provision is s. 8 ( 1) (a) and is in identical terms to s.7(1)(c) of the Queensland Act. It provides:- "8(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment: (a) shall be set aside if the Supreme Court is satisfied: ( i) that the judgment is not a judgment to which this Part applies or was registered in contravention of the provisions of this Act; -- 6 of 23 -- (ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; (iii) that the judgment debtor did not (notwithstanding that process may have been duly served on him in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; (iv) that the judgment was obtained by fraud; (v) that the enforcement of the judgment would be contrary to public policy in the State; or (vi) that the rights under the judgment are not vested in the person by whom the application for registration was made; ... " It is necessary to set out the progress of the New Zealand proceedings as can be gleaned from the material. The first defendant was a company through which the second defendant, Peter McLean, conducted his building business. The plaintiff extended certain overdraft facilities to the first defendant and to the second defendants. In addition, the second defendants guaranteed the due performance of the first defendant's obligations to the bank. A number of documents issued on behalf of the plaintiff in New Zealand in respect of the summary judgment application the subject of the registered judgment. They were:- (i) A notice of intention to seek summary judgment dated 28th November, 1989 and memorandum attached thereto dated 29th November, 1989; (ii) A statement of claim dated 29th November, 1989; (iii) Notice of application for summary judgment dated 28th November, 1989 (wherein the date of hearing was stated to be 2nd February, 1990); -- 7 of 23 -- (iv) Affidavit of Richard Warren McFelin in support of summary judgment sworn 3rd November, 1989; (v) Notice for directions for fixing date of hearing for summary judgment and time within which the second defendants must file opposition to application dated 28th November, 1989; (vi) The order of Master Hansen of the High Court of New Zealand dated 18th December, 1989 fixing the hearing date of the summary judgment application for 9th February, 1990 and the date for the second defendants to file and serve their material in opposition being three days prior to the hearing; (vii) Affidavit of Dennis Henry Magnussen as to personal service upon the second defendants of the summary judgment material; (viii) An affidavit of Leneen Veronica Forde sworn on the 15th February, 1990. The second defendants did not appear in the High Court of New Zealand nor did they oppose the summary judgment application and judgment was given against them for $71,788.33 (N.Z.) inclusive of interest to date of judgment plus costs, on the 23rd February, 1991, relying upon the above material. The affidavit of Mr. Magnussen sworn on 15th February, 1990 is to the effect that: "On Wednesday, 17th January, 1990 I did serve both of the abovenamed second defendants PETER ALAN McLEAN and MARGARET ANNE McLEAN with a notice of proceeding when summary judgment sought, a statement of claim dated 29th November, 1989, notice of application for summary judgment and affidavit of Richard Warren McFelin in support of application for summary judgment, copies of which are annexed and marked "A", "B", "C" and "D" -- 8 of 23 -- respectively by handing the same personally to the defendants at 31 Wobur Street, Brackenridge in the State of Queensland." Mr. Magnussen goes on to depose:- "I could identify the persons I served as PETER ALAN McLEAN and MARGARET ANNE McLEAN as they acknowledged their identity as such when I served them and accepted the documents presented to them." Miss Forde deposed to causing a letter to be sent to the second defendants by certified mail on the 7th February, 1990 advising them of a new hearing date for the summary judgment application in the High Court of New Zealand in Christchurch on the 9th February, 1990. On the 12th February, 1990 she caused a second letter to be sent to the second defendants by certified mail advising of a new hearing date for the summary judgment application on the 23rd February, 1990. Mr. Peter McLean filed an affidavit in support of setting aside the registration of the judgment in the Supreme Court of New South Wales swearing that:- "3. I was not personally served with any court documents whatsoever pertaining to those proceedings. 4. I did not receive any notice of proceedings to take place on or about the 23rd day of February 1990, when the said Judgment was apparently given and I did not appear in the proceedings. 5. On a date which I cannot now remember I did read a letter addressed to myself and the female Defendant advising us of a hearing date on the 9th February 1990 at 1 0am in Christchurch, New Zealand. That letter was dated 7th February 1990 and was signed by a firm of solicitors in Brisbane." On the morning of the hearing before me the plaintiff produced a facsimile copy of an affidavit of Jillian Elizabeth Hanna sworn in London. It was received on the undertaking that the original would be filed in due course and subject to -- 9 of 23 -- 1 the second defendants' objection that had the affidavit been received in time, leave would have been sought to cross- examine her. I permitted the material in her affidavit to go into evidence because Darrell Frederick Jardine, the plaintiff's Queensland solicitor, had deposed, in an affidavit filed on the 22nd August, 1991, on information and belief, of the matters to which Miss Hanna swore as having been done herself. Miss Hanna had conduct of the New Zealand proceedings. Little in Miss Hanna's affidavit is contested by the second defendants save that Mrs. McLean denies that she intimated to Miss Hanna that she knew that the summary judgment application had been heard on the 23rd February, 1990 when she telephoned Miss Hanna in New Zealand in March 1990. Miss Hanna deposes to receiving a telephone call from Mrs. McLean on the 1st March, 1990 and to her recollection of it. She exhibited a diary note made contemporaneously. Paragraph 3 of her affidavit is as follows:- "On the 1st March, 1990 Mrs. Margaret McLean, one of the Second Defendants to the said proceedings, telephoned me and asked me and I verily believe what the outcome was of the hearing of the Summary Judgment application on 23rdFebruary, 1990. I informed Mrs. McLean that judgment had been entered that day against both her and her husband and that I was waiting for instructions from the Bank inrelation to what steps were to be taken to enforce the judgment. Mrs. McLean asked me and I verily believe whether the entering of judgment would affect their credit rating and I advised her that the entry of judgment would be advertised in the relevant Gazette and that if she had any further queries then I would not be able to assist her as I was taking instructions from the Bank ... " Miss Hanna's note which she made at the time is exhibited to her affidavit (as it was to the affidavit of Mr. Jardine). It reads as follows: -- 10 of 23 -- "TF Mrs. Margaret McLean 1/3/90 - wanted to know what outcome of DO~ on 23/2? I sd judgmt entered " "waiting for instructions she sd would it affect their credit rating - I sd it will be advertised in the Gazette but that if she had any further queries/ needed advice I couldn't help as I'm acting for the Bank - suggested she consult Mr. McNish - she doesn't have a solicitor in Australia. (concern re credit rating as Peter wants to buy a car)" It would appear from Mr. McFelin's affidavit in support of the summary judgment application that Mr. McNish was the second defendants' New Zealand solicitor. Both Mr. and Mrs. McLean were cross-examined as to their affidavit evidence. Mr. McLean was asked if he knew that there were proceedings between himself, his wife and the plaintiff bank. He responded:- " ... Just to clarify it from my point of view, right, my wife was served with the papers, therefore I had seen them. I knew that there was that it was going to Court. I think the first date we were given was, on the papers, was 29 November. I don't know. I knew that something was happening and I wasn't able to afford to go myself, I wasn't able to afford a solicitor ... " Mr. McLean agreed that when he received the letter from Henderson Trout, solicitors for the plaintiff bank bearing date 7th February, 1990 that it referred to those proceedings and that he understood it to refer to those proceedings. Mr. McLean did not recall ever seeing the letter dated the 12th February, 1990 sent by Henderson Trout to the second defendants and for that matter neither did his wife. The effect of Mr. McLean's evidence with respect to the original documentation relating to the summary judgment application in New Zealand was that as far as he was concerned his wife -- 11 of 23 -- showed him everything with which she had been served, that he knew what was going on with respect to those court proceedings but that he could not afford to go to New Zealand to defend the summary judgment application. In addition, Mr. McLean considered that the property available for execution to the plaintiff in New Zealand would be sufficient to satisfy the debt. Mr. McLean agreed that after receipt of the letter from Henderson Trout dated the 7th February, 1990 he continued to do nothing with respect to defending the New Zealand proceedings because he could not afford to do so. Mrs. Margaret McLean agreed that she was served personally with the papers for the New Zealand summary judgment hearing, that she knew what the action was about and that there was a date on those papers indicating the date of the hearing in New Zealand. She agreed that she discussed the proceedings with her husband and having done so, took no step to contest or defend the action in New Zealand. Mrs. McLean received the letter dated the 7th February, Henderson Trout and discussed it with her husband. asked:- 1990 from She was " Is it fair to say that the two of you decided not to do anything about the action in New Zealand?--It was not that we decided not to do it, it was that we couldn't do anything about it. That is all right, we won't argue about that, but is it fair to say that you were aware of the proceedings, the court case in New Zealand, but for the reasons that your husband has given in evidence you decided not to contest or defend the action in New Zealand?--Yes." Mrs. McLean however, denied ever receiving the letter dated 12th February, 1990 from Henderson Trout indicating the new date for the summary judgment hearing. She recalled -- 12 of 23 -- 1Q telephoning Miss Hanna in New Zealand and said in cross- examination:- "I just rang up to find out what our credit rating wouldbe over in New Zealand. I had even forgotten that it was going to court on the 23rd." Mrs. McLean asserted that she was reading that date from the letter in front of her in the witness box. The following took place:- " From all of that it is fair to say that you had been aware of this action in New Zealand for some time, but had decided, for the reasons given by your husband, not to do anything about it, and by this stage you were then concerned what effect, if any, a judgment in that action against you and your husband might have on your credit rating?-- Yes. At no time, I suggest to you, did you or your husband consult any lawyers or take any steps yourselves either to defend or to contest the action in New Zealand?-- No, we did not. You certainly had an opportunity to do so, that is the time?-- We had the time, but we just couldn't afford to do it. You didn't have the money?-- No. Is it fair to say proceedings?-- That's right. you were aware of the You certainly had an opportunity to do somethingabout it if you could?-- Yes. But because of your financial position you and your husband decided not to; is that fair?-- Yes." It should be noted that in her affidavit Mrs. McLean had sworn that she did not receive the letter dated 7th February, 1990 until after 9th February, 1990 but did not seek to maintain that position on cross-examination although she was not asked directly about it. Miss Forde under cross-examination said that she arranged for the letters from her firm dated the 7th and 12th February, -- 13 of 23 -- 11 1990 respectively to be sent to the second defendants as certified post through her firm's mail room and that as far as she could say the letter of the 12th February, 1990 said never to have been received by the second defendants had not been returned to the offices of Henderson Trout. The process server Mr. Magnussen had no independent recollection of the events that occurred on the morning of the 17th January, 1990 when, according to his affidavit, he served both Mr. and Mrs. McLean. He indicated that his practice with respect to the identification of persons upon whom he was serving process was to ask them to identify themselves by their names. It was put to Mr. Magnussen in cross-examination that he did not serve Mr. Peter McLean with any documents on the 17th January, 1990, but whilst he admitted that he now had no independent recollection of the events on the 17th January, 1990, which is hardly surprising since he is a process server by occupation, he stood by the affidavit which he swore on 1 5th February, 1990 as to service. Whilst Mr. Magnussen swears to serving both he does not swear that he served each with a set of the documents described. The second defendants seek to set aside the registration of the judgment on three bases. The first is that pursuant to s.8(1)(a)(iii) of the New South Wales Act they did not receive notice of the proceedings in sufficient time to enable them to defend the proceedings and did not appear. The second is that the judgment was obtained by fraud as against the second defendant, Peter Alan McLean, because he was never personally served with the process on the 17th January, 1990 and the High -- 14 of 23 -- li Court of New Zealand relied upon Mr. Magnussen's affidavit in ordering judgment against him. The third is that to enforce the judgment would be contrary to public policy. Each is a ground set out in the Act for setting aside the registration of the judgment. The public policy sought to be advanced is the fraud of the service affidavit. In Barclays Bank Limited v. Piacun (1984] 2 Qd.R. 476 the Full Court had to consider, inter alia, the meaning of s.7(1)(c) of the Queensland Act (equivalent to s.8(i)(a)(iii) of the New South Wales Act). In that case, the debtor received no notice of any kind before judgment was entered against him in England. He sought to set aside the registration of the judgment in Queensland on the grounds set out in s.7(1)(c) of the Act. The Master in Chambers declined to register the judgment but on appeal to the Chamber Judge, some months having elapsed between the hearing by the Master and hearing of the appeal, the Chamber Judge was persuaded that the debtor had sufficient notice to seek to set aside the original judgment and accordingly registered the judgment. Connolly J. held in the Full Court in the appeal from that decision at p.479 that:- "The whole scheme of this legislation is to supply clear criteria for registration which can be applied with certainty. Now in this very case, the learned Chamber Judge accepted at least the possibility that the application to register the judgment when before the Master might be unsuccessful. rt cannot, with respect, be a satisfactory answer in an area such as this to say that after few more months of the law's delays it becomes registrable. What is meant by paragraph ( c), in my respectful judgment, is that the defendant must receive notice of the proceedings in sufficient time to enable him to have resisted the making of the judgment which it is sought to register. The appellant did not receive -- 15 of 23 -- Ll such notice and it follows in my judgment that the order under appeal must be set aside." Macrossan J. (as he then was) speaking of the English Foreign Judgments (Reciprocal Enforcement) Act of 1933 said:- "This language is broader in some ways than the terms of the English 1920 Act and it is obviously designed to bolster the right of a judgment debtor to make local resistance to the enforcement of a foreign judgment. In cases where he did not have a fully adequate opportunity to oppose the suit which has led to the foreign judgment. These conclusions as to the purpose of the legislation would appear to arise equally from a consideration of the Queensland s.7(1)(c) and those impressions are strengthened by a broader view of the whole of s. 7 ( 1 ) . Certain kinds of judgments seem to be regarded as unsuitable subjects for the stream-lined enforcement of procedures which are made available in other cases to foreign judgment creditors. Under ss.(b),(d) and (e) of s.7(1), when the foreign judgment has been obtained without jurisdiction in the foreign court or by fraud or in a manner contrary to the public policy of this State the registration is set aside. In these cases the debtor is not put to the inconvenience and expense which would attend any obligation to launch his attack within the foreign jurisdiction which pronounced the judgment: he's given a summary right to defeat registration in this State and thus avoid any attempts at execution based on registration." The meaning of the words in s.8(i) (a) (iii) of the New South Wales Act appears to me to be plain. Mr. and Mrs. McLean received notice of the New Zealand proceedings on the 17th January, 1990. Al though neither Mr. McLean nor Mrs. McLean said firmly that on the day that Mrs. McLean was served with the originating process she showed it to her husband, it seems reasonable to suppose that she did. Both of . them were very vague about time and dates. They both agreed that they discussed the matters raised in the papers and concluded that they would not defend the proceedings, not only because they could not afford to do so, but also because they were of the opinion that there was sufficient property available in New -- 16 of 23 -- ll Zealand to cover the judgment debt. There was no suggestion by either of them that there was insufficient time for them to have defended the proceedings had they decided on that course. Having come to that conclusion on the facts it then becomes necessary to consider the question of the adjourned dates for the hearing. I cannot conclude that the clear intention of the legislature was defeated by Mr. and Mrs. McLean not receiving notice of the adjourned date for the hearing on the 23rd February, 1990. I accept for the purposes of dealing with this aspect of the application that they did not receive the letter dated the 12th February, 1990. All that the section requires is that they receive notice of the proceedings in sufficient time to enable them to defend. That occurred. There was no suggestion in the evidence of Mr. or Mrs. McLean that circumstances changed or that their intention changed between what would have been the date of hearing and the actual hearing date on the 23rd February, 1990. Further the memorandum attached to the notice o~ summary judgment drew to their attention the possibility of seeking an adjournment for further time to resist the application. Accordingly, I conclude that they did have notice within the meaning of s. 8 ( 1) (a) (iii) of the Foreign Judgment ( Reciprocal Enforcement) Act 1973 (N.S.W.) It then becomes necessary to consider the two further bases for seeking to set aside the registration namely that of fraud and that the judgrnent was obtained contrary to the public policy of New South Wales. They are dependant upon my accepting, in the case of Mr. McLean, that he was not served -- 17 of 23 -- u with the proceedings by Mr. Magnussen on the 17th January, 1990. I should say immediately of Mr. Magnussen that I had no reason to doubt his evidence when he stated that he stood by his affidavit of service which he swore about a month after serving the process. Exhibit 1 in the application is a work sheet which Mr. Magnussen filled out immediately after service. He identified the handwriting on it as his own. It contains the names of the second defendants, their address, the name of the matter and, in his own handwriting, the date of service on the 17th January, 1990, the time at 6 a.m. and that it was personal service. Mr. McLean thought that he was working on the 17th January, 1990. When asked at what time did he start work he replied "I wouldn't have a clue, to be quite honest" and when pressed to give an estimate he said "I am a sub-contract carpenter. I usually leave home anywhere between 5. 3 0, 6 o'clock." He was then asked, "Do you recall about 6 o'clock that morning a man coming to Wobur Street and giving you some papers?". His response was "No, I don't". Mr. McLean was generally vague in his answers about times and dates but he seemed firm on this. From my recollection of his evidence and considering the transcript, Mr. McLean was not asked if he was present when the process server gave his wife papers, nor whether the process server spoke to him. It was not put to Mrs. McLean in cross-examination that her husband was served with the papers at the same time that she was served nor, alternatively, that he was present. A careful consideration of Mr. Magnussen's affidavit suggests that possibly one set of papers only was served upon the joint -- 18 of 23 -- 1.§_ second defendants. Because Mr. Magnussen had no recollection of that day that could be taken no further in cross- examination. Accordingly Mr. McLean may have been present yet have been correct when he swore that he personally was not given some papers. I seek some explanation which is consistent with both Mr. Magnussen and Mr. McLean being truthful witnesses because nothing in their demeanour or words suggested the contrary. Exhibit 1 did not take the plaintiff's case However, it is any further than the affidavit necessary to consider if Mr. of service. McLean has satisfied the burden of proof which he carries on the application to set aside the registration of the judgment. I conclude that Peter McLean was not served personally with the originating documents. What then is the effect of that conclusion? was given as to the law of New Zealand with service. Foreign law is a question of fact something of which this Court can take judicial No evidence respect to it is not cognisance, even though the foreign law has already been proved before it in another case. The evidence of that law must be of qualified experts in that foreign law, see Lazard Brothers & Co. v. Midland Bank [ 1933] A. C. 289 at 298. Al though Mr. Perry for the plaintiff tendered Sim and Cain The Practice of the High Court and Court of Appeal of New Zealand (loose-leaf service, Butterworths), that may not be resorted to as evidence of the law of New Zealand as to service of originating proceedings. In Lazard Brothers & Co. v. Midland Bank, supra, Wright L.J. held at p.298: -- 19 of 23 -- 11 "If the law is contained in a code or written form, the question is not as to the language of the written law but what the law is as shown by its exposition, interpretation and adjudication ... Hence the Court is not entitled to construe a foreign code itself ... The text of the foreign law if put in evidence by the experts may be considered, if at all, only as part of the evidence and as a help to decide between conflicting expert testimony." In the absence of evidence as to the foreign law it is presumed that is the same as the law of the forum, see Bowden Bros & Co. v. Imperial Marine and Transport Insurance Co. (1905) 5 S.R.(N.S.W.) 614 per Cohen J. at p.616; Standard Bank of Canada v. Wildey (1919) 19 S.R. (N.S.W.) 384 per Cullen C.J. at p.388. As mentioned above, by virtue of s.11 of the Jurisdiction of the Court (Cross-vesting) Act (Qld.) 1987, the law to be applied is that of New South Wales. The New South Wales Supreme Court Rules provide in Part 9 r.2(1): "Subject to any Act, originating process shall be served personally on each defendant." "Originating process" is defined in Part 2 r. 8 ( 1 ) and would include the process whereby proceedings were initiated in New Zealand. provides: New South Wales Supreme Court Rules Part 9 r. 3 ( 1 ) "Personal service of a document may be effected by leaving a copy of the document with the person to be served, or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document." Part 9 r.13 provides: "Subject to the rules, where husband and wife are parties to proceedings service on the husband shall not have effect as against the wife." And vice versa by virtue of s. 8 of the Interpretation Act, 1987 (N.S.W.). -- 20 of 23 -- If I am incorrect in my conclusion that New South Wales law applies to this question of service, the Queensland Rules in 0.10 rr.1, 2 and 3 are sufficiently similar as to principle so that the same result would occur whichever is applied. Accordingly, I find that there has been no personal service of the originating proceedings upon the second defendant Peter Alan McLean as required by law. In Vadala v. Lawes (1890) 25 Q.B.D. 310 Lindley L.J. held at p.316:- " ... There is the rule which is perfectly well and well known, that a party to an action can judgment in it for fraud. Whether it is the an English Court or of a foreign Court, does using general language, that is a general unconditional and undisputed." established impeach the judgment of not matter;proposition In Syal v. Heyward [1948] 2 K.B. 443 the Court of Appeal, in considering the registration of a foreign judgment, held with respect to s.4 of the English Act of 1933 which is similar to s.8(1)(a)(iv) of the New South Wales Act that:- " ... the question is not one of fraud on the plaintiff, but of fraud on the Court, ... " I have found that the second defendant Peter Alan McLean was not served personally with the originating process and the judgment in that action was made in reliance upon the affidavit of David Henry Magnussen as to personal service upon him. It therefore follows that the High Court in New Zealand was misled by that affidavit and would not have entered judgment against Mr. McLean had it not had an affidavit of personal service. Accordingly, that constituted a fraud upon the New Zealand High Court and is a ground for setting aside the registration of the judgment in the case of the second -- 21 of 23 -- defendant Peter Alan McLean. It is unnecessary to consider the further ground, namely, that the registration should be set aside as being contrary to public policy, the basis of which is the same as the ground based upon fraud. The orders of the Court are that: 1. The registration of the judgment of the High Court of New Zealand dated 23rd February, 1990 pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1973 (N.S.W.) ordered 8th October, 1990 in the Supreme Court of New South Wales against Peter Alan McLean be set aside. 2. The registration of the judgment of the High Court of New Zealand dated 23rd February, 1990 pursuant to the Foreign Judgments (Reciprocal Enforcement) Act 1973 (N.S.W.) ordered 8th October, 1990 in the Supreme Court of New South Wales against Margaret Anne McLean be not set aside. In the absence of further submissions it is further ordered that:- 3. The plaintiff pay the costs of the second defendant Peter Alan McLean of and incidental to the application to set aside the registration of the judgment against him including the costs reserved on 8th October, 1990 in the Supreme Court of New South Wales and 22nd August, 1991 in this Court to be taxed. 4. The second defendant Margaret Anne McLean pay the costs of the plaintiff of and incidental to the registration of the New Zealand judgment and of the notice of motion to set aside such registration including the costs of 8th -- 22 of 23 -- r October, 1990 and 22nd August, 199t to be taxed. -- 23 of 23 --