Sports Technology International Pty Ltd v B W Holdings Ltd [2011] FJHC 717; Civil Action 150.2004 (9 November 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 150 of 2004

IN THE MATTER of the Foreign Judgments (Reciprocal Enforcement) Act, Cap 40, Laws of Fiji.

And

IN THE MATTER of an Judgment of the Supreme Court of New South Wales, Sydney Registry, Common Law Division, Australia obtained in Action No. 10396 of 2003 by
SPORTS TECHNOLOGY INTERNATIONAL PTY LIMITED as Plaintiff against B W HOLDINGS LIMITED as First Defendant and FIJI SPORTS COUNCIL as Second Defendant

Appearances: Mr T.Tuitoga for the plaintiff
Ms Radhika Naidu for the first defendant
Mr Devanesh Sharma for the second defendant

Date of hearing: 5th August, 2011

JUDGMENT

1. Fiji Sports Council was the organiser for the South Pacific Games, 2003 and had wanted a hockey pitch constructed at Laucala Beach, Suva. B W Holdings Limited won the tender for the construction works and had entered into a contract with Sports Technology International Pty Limited, an Australian company to supply materials for the hockey pitch .
   

Sports Technology International Pty Limited alleged it had completed its obligations under the contract and was entitled to be paid the balance of the contract sum by B W Holdings Limited. It was further alleged that Fiji Sports Council had guaranteed the payment of AUD $ 163,675 by B W Holdings Limited to Sports Technology International Pty Limited.

Sports Technology International Pty Limited, obtained judgment against B W Holdings Limited and Fiji Sports Council in the Supreme Court of NSW, Sydney. The judgment was registered as a judgment in the High Court of Fiji on 21 May, 2004, under the Foreign Judgments (Reciprocal Enforcement) Act (cap 40).

2. The defendants have sought to set aside the judgment of the High Court of Fiji on the following grounds of section 6(1)(a) of the Foreign Judgments (Reciprocal Enforcement)Act, which reads as follows:
   

"(i) that the judgment is not a judgment to which this Part applies was registered in contravention of the foregoing provisions of this Act; or

(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or

....

(2) For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (3), be deemed to have had jurisdiction –

(a) In the case of a judgement given in action in personam –

.....

(iii) If the judgement debtor, being a defendant in the original court, had, before the commencement of the proceedings, agreed in respect of the subject matter of the proceedings to submit to the jurisdiction or that court or of the courts of the country of that court; or (emphasis added)

3. The affidavit filed on behalf of B W Holdings Limited contain two contentions. The first is that the courts in New South Wales had no jurisdiction to adjudicate on the dispute, as the contract was entered into in Fiji and performed in Fiji. This contention is unsustainable in the face of clause 10e) of the contract between Sports Technology International Pty Limited and B W Holdings Limited(attached to the affidavit), which explicitly provides that action may be commenced in a court of competent jurisdiction in New South Wales.
   

The answer to the second contention that Sports Technology International Pty Limited had not satisfactorily performed and/or completed the contract is given in the succeeding paragraph.

4. In opening, counsel for Fiji Sports Council advanced the contention that New South Wales was not one of the countries included in Part 11 of the Foreign Judgments (Reciprocal Enforcement)Act(cap 40).
   

It is settled law that section 9 of the Foreign Judgments (Reciprocal Enforcement) Act leaves "intact for the purposes of registration and enforcement the judgments of all other countries and territories covered by the Reciprocal Enforcement of Judgments Act (cap 39)" -Justice Mr Byrne in Brown v Stewart (action No.190 of 1989), as referred to by Mr Tuitoga. A similar conclusion was reached by Justice Mr Pathik in the case of Raniga v Raniga, (1999) FJHC 122, cited in the submissions of B W Holdings Limited. New South Wales is covered in the Reciprocal Enforcement of Judgments Act (cap 39) .

Mr Devanesh Sharma had three other strings to his bow. First, he asserted the letter dated 1st May,2003, given by Fiji Sports Council and relied on by Sports Technology International Pty Limited as constituting a guarantee was in effect, an offer. Secondly, he stated Fiji Sports Council had not submitted to the jurisdiction of the NSW courts. Thirdly, that the judgment registered was not expressed in the currency of Fiji,as required by section 4(3) of the Foreign Judgments (Reciprocal Enforcement)Act .

As regards the first assertion, as stated by Sachs LJ in Ferdinand Wagner v Labscher Brothers & Co,[1970]2 All ER 174 at pg 177, this court is not sitting " as a court of appeal against a judgment pronounced on the merits by a foreign court..Such an attitude would force the plaintiff back to his original cause of action and it would avail him little that he had been successful abroad".

The decisive factor in these proceedings is whether there was agreement by Fiji Sports Council to submit to the jurisdiction of the NSW courts in terms of section 6 (1)(a)(ii) read with sub-section (2)(a)(iii) of the relevant statute.

Mr Tuitoga conceded there was no express agreement to submit to the jurisdiction of the courts of NSW. Amin Rasheed Shipping Corp v Kuwait Insurance, (1984) 1 AC 50 referred to in the submissions of Sports Technology International Pty Limited is authority for the principle of private international law on determining the proper law of a contract.

Diplock J(as he then was) in Blohn v. Desser, [1962] 2 Q.B. 116 at page 123 referring to the five cases when an English court would enforce a foreign judgment as enumerated by Buckley L.J. in his famous aphorism in Emmanuel v Symon, [1908]1 KB 302,,stated:

" It is also, I think, clear law that the contract referred to in the fifth case, to submit to the forum in which the judgement was obtained, may be express or implied".

In my judgment, the following facts as relied on by Mr Tuitoga imply there was agreement to submit to jurisdiction to the courts of NSW: (a) the guarantee payable in Australian dollars is specifically related to the liability of B W Holdings Limited; (b) the recovery of the amounts due under the contract between Sports Technology International Pty Limited and B W Holdings Limited is governed by NSW law . The inference that Fiji Sports Council agreed to submit to the jurisdiction of the courts of NSW is rendered easily acceptable by the consideration that if Sports Technology International Pty Limited were to pursue litigation (as it has), it would be desirous to institute proceedings in one jurisdiction rather than in two different jurisdictions.

On the third contention of Mr Sharma,I agree with Mr Tuitoga that the failure to express the judgment in the currency of Fiji is not fatal .It does not constitute a statutory ground to set aside the judgment.

5 Orders

The application of the first and second defendant to set aside the judgment registered is dismissed with costs summarily assessed at $ 3000 payable by the first and second defendant to the plaintiff.

A.L.B.Brito-Mutunayagam
Judge

09 November, 2011