CKP Fishing Company Ltd v Owner of the Woo Yang #205 [1999] FJHC 79; HBG0001d.1998s (6 August 1999)

Fiji Islands - CKP Fishing Company Ltd v The Owner of the Woo Yang #205 - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

ADMIRALTY JURISDICTION

HBG 1 OF 1998

Admiralty Action in Rem

BETWEEN:

:

CKP FISHING COMPANY LIMITED
Plaintiff

AND:

THE OWNER OF THE WOO YANG #205
DefendantAND:

<

MARINE PACIFIC LIMITED
Intervener

Mr. V. Kapadia for the Plaintiff
Ms. M. Chan for the Intervener

DECISION

By Notice of Motion dated 15 March 1b>Marine Pacific Limited (the "intervener") has sought orders as follofollows upon the grounds contained in the affidavit of Victor Fatiaki sworn 19 February 1999 and filed herein:

i) Judgment for the sum of US$156,067.40 (or the Fiji equivalent) and costs and interests in the sum of £15,273.97 (or the Fiji equivalent) and interest at the continuing daily rate of US$33.62 (or the Fiji equivalent) from 17 February, 1999 being a decision of the High Court of England at London dated 16 February, 1999 AND AN ORDER that the judgment be registered in Fiji under the Reciprocal Enforcement of Judgments Act (Cap 39);

ii) A Declaration that the Intervener's claim takes priority over all other claims;

iii) The vessel "Woo Yang #205" be appraised and sold by the Intervener and that the costs of the appraisal and sale of the vessel, Judgment in favour of the Intervener, costs and interest be paid out firstly out of the proceeds of sale;

iv) such further and other relief as this Honourable Court deems fit."

Background facts

The details regarding the facts of this case are set out in Fatiaki's said affidavit and other subsequent affidavits filed herein. In so far as it is material to this application I state hereunder the relevant facts on which the determination of the issue before the Court depends.

The intervener was engaged by the defendant to do salvage work on the vessel "Woo Yang # 205" (the "vessel") which it did. As Fatiaki has stated, on 18 January 1999 the intervener obtained a salvage award over the vessel which was enforced in the High Court of England as an Order of the High Court of England on 8 February 1999 and was sealed on 15 February 1999.

By an Order of this Court (ex parte) made of 5 March 1999 the intervener was granted leave to intervene in these proceedings. And as ordered the Motion and Affidavit were served on the defendant by 'delivering to and posting the same at the entrance to the vessel identified as "Woo Yang # 205" at Walu Bay Wharf, Suva'.

A further affidavit sworn 18 March 1999 by Victor Fatiaki was filed wherein he stated, inter alia, that (a) intervener's 'claim has priority over all prior liens, including the Plaintiff's because it has preserved the property to which earlier liens have attached', (b) the President of the Company (defendant) has authorised the intervener to sell the vessel. He is therefore seeking the orders prayed for in the said motion of 15 March 1999. He is also asking the Court to order service of documents out of jurisdiction by registered mail at the following address: Woo Yang Fisheries Co. Limited, 5F Honsan Building, 899-3 Bang - Bac - Dong, Seocho - Ku, Seoul, Korea.

In reply to the intervener's affidavits the Plaintiff, in the affidavit sworn by KIM SUNG SOO, the Managing Director of the Plaintiff, states inter alia, that he did sign the salvage agreement as agent of the defendant without 'any express written authority from the owners of the ship'. At that time he understood that the insurance company which had insured the vessel would pay for the salvage costs. After the salvage the ship was left with the plaintiff in its possession to look after. He says that the intervener neither advised him of the said salvage sum of US$156,067.40 and £15,273.97 as at 16 February 1999 nor was he informed of the arbitration proceedings which was carried out in London. The plaintiff further disputes that the intervener has priority over all other liens or claims including the claim by the plaintiff. The plaintiff says that it has priority over the claim by the intervener.

On 16 April 1999 an order was made by this Court for the vessel to be appraised and sold by the Admiralty Marshal.

Issue for Court's determination

It was agreed that before I hear argument as to priority of claims, I ought to determine the intervener's application as in (i) of the said Motion of 15 March 1999 (supra), namely that the judgment obtained against the defendant in the High Court of England be registered in Fiji under the Reciprocal Enforcement of Judgments Act (Cap. 39) (the 'Act').

The issue therefore is whether on the facts and in law I ought to grant this application or not. To decide this I have heard extensive argument from both counsel.

Intervener's submission

The vessel "Woo Yang #205" lay stranded on Nasilai Reef outside Suva. The Intervener agreed on 4 August 1998 to salve the vessel on a "No Cure - No Pay" basis.

As stated above, the Intervener has a salvage award from the Council of Lloyd's Arbitration Forum on 4 August 1998. That award is registered and taken up as a Judgment of the High Court of England under RSC or 73 r 31 (2). It was sealed on 16 February 1999 and has been attached to the Supplementary Affidavit of Victor Fatiaki sworn on 23 April 1999. That judgment still stands for it has not been set aside.

The Intervener seeks an order for the registration of the judgment in Fiji under the Act. It submits that "it has complied with the spirit of the rules of Cap 39". Miss Chan for the Intervener submits that although the Rules require that an application be made by ex parte summons, 'that process would apply to new applications where no existing litigation is on foot'. Here, she says, 'there is already existing litigation, namely this action, to which this application is made'. She submits that the judgment speaks for itself, therefore the order for registration of the judgment in Fiji should be made accordingly in terms of the judgment of the High Court of Judicature.

Plaintiff's submission

Mr Kapadia for the plaintiff objects to the application. He submits that the Reciprocal Enforcement of Judgments Rules (the "Rules") which are made pursuant to Section 6 of the Act set out specific procedure for registration of a foreign judgment in Fiji and he sets out in his written submission what the basic requirements are for registration.

Mr Kapadia has vigorously argued that the Intervener has not followed any of the requirements of the Act or the Rules made thereunder. Therefore he submits that the said judgment "at this stage does not give the Intervener any rights to claim any form of priority in the proceeds of the sale" of the vessel.

Determination of the issue

I have given due consideration to the arguments put forward by both counsel. In short, Miss Chan on the one hand submits that in relation to the provisions of the Act and the Rules made thereunder, the Intervener has "complied with the spirit of the rules of Cap 39 and hence the judgment ought to be registered". On the other hand Mr Kapadia argues that the Intervener has not followed any of the requirements of the Act or the Rules made thereunder.

In considering the issue before the Court, one should not overlook the fact that at the time the Intervener came into the picture in this action in rem against the defendant by being joined as a party, the vessel was already under arrest and it still is although an order has already been made for its appraisal and sale.

Judgment in rem and its effect

There is no argument about it that there is in existence this foreign judgment and that it is capable of being registered in Fiji under the Reciprocal Enforcement of Judgments Act Cap 39 provided there is a compliance with its provisions. Not only is it a judgment but it is a judgment in rem.

On the definition of 'judgment in rem' and its effect I would like to refer to Hals. 4th Ed. Vol. 8 para 739 under the caption 'Foreign Judgments' where it is stated:

739. In general. A judgment in rem may be defined as the judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation. It is thus a judgment vesting in a person the possession of or property in a thing, or decreeing the sale of a thing in satisfaction of a claim against the thing itself, or a judgment as to the status of a person.

A judgment in rem pronounced by a court of competent jurisdiction is conclusive and binding in England, not only between parties and privies, as in the case of a judgment in personam, but against all the world.

And further in para 740 (ibid.) Halsbury states as follows in regard to 'judgments in rem relating to movables' which I consider is pertinent to the issue before the Court:

740. Judgments in rem relating to movables. A foreign judgment in rem relating to movables will be recognised and enforced in England if the movables were situated in the foreign country at the time of the proceedings. The judgment need not be an actual adjudication as to the status of the thing itself. A decision as to right or title will of course be conclusive, but so also will any disposition by the court by way of sale, transfer or otherwise, as for example, where an Admiralty court orders the sale of a ship to satisfy a maritime lien, or a prize court orders the sale of goods because they have been adjudged lawful prize. In such a case the foreign court can give a bona fide purchaser a title which cannot be impeached in England, even though by English law, but for the foreign judgment, some other person would have been regarded as owner of the thing sold or as having preferential rights over it.

It seems that a foreign judgment in rem relating to movables can be enforced in England by an action in rem.

Provisions of Reciprocal Enforcement of Judgments Act & Rules

For the purposes of registering the judgment under the Act and the Rules made thereunder, the provisions thereof ought to be complied with in toto. To follow it 'in spirit' as urged by counsel for the Intervener is not good enough and it certainly is not a compliance with the provisions of the Act under any circumstances. The fact that the vessel is under arrest and that there is already this action, does not mean that the provisions of the Act ought not to be followed or that the procedure under the Rules can be ignored.

The Reciprocal Enforcement of Judgments Act is as its preamble states "an Act to facilitate the reciprocal enforcement of judgments and awards in the United Kingdom and Fiji".

Under s3(2) of the Act it is mandatory that there be service on the 'judgment debtor' with the process of the original Court. The 'judgment debtor' is defined as 'the person against whom the judgment was given and includes any person against whom the judgment is enforceable in the place where it was given'. In the case before me it is the defendant which is the 'judgment debtor'. In regard to 'service' of the 'process of the original court' the said s3(2) in so far as it is material provides:

"(2) No judgment shall be ordered to be registered under this section if-

(a) .....

(b) .....

(c) the judgment debtor being the defendant in the proceedings was not duly served with the process of the original court and did not appear notwithstanding that he was ordinarily resident or was carrying on business within the jurisdiction of that Court or agreed to submit to the jurisdiction of that court; or

(d) .....

(e) .....

(f) ....."

There is no dispute that 'service' has not been effected on the defendant as required or at all under the said s3(2) of the Act.

I accept the arguments of Mr Kapadia that the correct procedure for the registration of the foreign judgment as required by the Act and the Rules have not been observed and reject Ms Chan's submissions that the judgment should be registered because there is already this action and that there is a compliance with provisions of the Act 'in spirit'. The details of the procedure are set out in Mr Kapadia's written submission and they are as follows:

(a) an application must be made Ex-parte and by Originating Summons in the High Court of Fiji; (Rule 2)

(b) the application must be supported by an Affidavit of the facts exhibiting the Judgment which must be duly certified; (Rule 3)

(c) the deponent to the Affidavit must depose that the Judgment does not fall within any of the cases set out in sub-section 2 of Section 3 of the Act; (Rule 3)

(d) the full place of abode of business of the judgment creditor and the judgment debtor must be set out in the Affidavit; (Rule 3)

(e) the Summons and the Affidavit must be intituled as set out in Rule 4; (Rule 4)

(f) the Summons must be served in a proper manner as a Writ of Summons is required to be served i.e. on the judgment debtor personally and not by service on the ship as has happened in this instance; (Rule 5)

(g) the Order Nisi for leave to register the Judgment is then made under Rule 6 of the Rules; (Rule 6)

(h) the Order giving leave to register the Judgment shall state the time within which the judgment debtor is entitled to apply to set aside the registration; (Rule 7)

(i) notice in writing of the registration of Judgment must be served on the judgment debtor within a reasonable time. After registration this notice must be served on the judgment debtor by personal service or by leave of the Court by substituted service or service out of jurisdiction; (Rule 10)

(j) the judgment debtor then is provided with time within which it could apply by Summons to the High Court of Fiji to set aside the registration or to suspend the execution on the judgment pursuant to Rule 13;

(k) pursuant to Rule 15 no execution shall issue on a judgment registered under the Act until after the expiration of the time limited by the Order giving leave to register after service on the judgment debtor of the notice of registration thereof;

(l) prior to issuing execution on a judgment registered under the Act the party must produce to the High Court of Fiji an Affidavit of Service of the notice of the registration of the judgment pursuant to Rule 16.

Conclusion

In the outcome, in the light of the above provisions in the Act and the Rules it is absolutely necessary that to enable the Intervener to successfully register this foreign judgment in Fiji it ought to comply with those provisions. This the Intervener has failed to do.

For these reasons the Intervener's application for the registration of the foreign judgment under the Reciprocal Enforcement of Judgments Act Cap 39 is refused. The Motion is therefore dismissed with costs which I fix at $250.00.

D. Pathik
Judge

At Suva
6 August 1999

Hbg0001d.98s