First Mortgage Ltd v Romanella Pty Ltd [1992] FJLawRp 15; [1992] 38 FLR 71 (22 April 1992)

[1992] 38 FLR 71

HIGH COURT OF FIJI

Civil Jurisdiction

FIRST MORTGAGE LTD

v

ROMANELLA PTY LTD & 2 OTHERS

Jayaratne J

22 April 1992

Foreign judgment- registration in Fiji- relevance of Exchange Control Act (Cap 211)- Foreign Judgments (Reciprocal Enforcement) Act (Cap 40).

An application to set aside a foreign Judgment registered in Fiji the High Court considered the grounds available for registering and setting aside such Judgments and HELD: that the Exchange Control Act only applied to contracts entered into in Fiji and therefore had no relevance to the Judgment, which had been validly registered.

No cases were cited.

Interlocutory application in the High Court.

R Patel for Plaintiff
Dr. Sahu Khan for Defendants

Jayaratne J:

This Ruling is in respect of the summons taken out by the 3rd Defendant Vinod Kumar Ramanlal Patel dated 15.3.1991 to set aside the registration of a Judgment in Fiji delivered in Fiji obtained against him and a few others as well in the Supreme Court of Queensland.

I consider it apposite to give the background to the whole episode involving the two countries, Australia and Fiji. The plaintiff First Pacific Mortgage Ltd. obtained the Judgment in the Supreme Court of Queensland on 19.6.1990 against the Defendant and two others for the recovery of $A256,855.89. The defendant had played the role of a guarantor to the 1 st Defendant who had purchased some real properties in Brisbane.

The foreign Judgment was registered under Foreign Judgments (Reciprocal Enforcement) Act Cap.40 which will hereafter be referred to as the Act, on an ex parte summons on 21.8.1980. Summons was taken out by Messrs. Parshotam & Co. the then law firm of the Defendant to set aside the registration of the Judgment on 12.10.90 but it was withdrawn by the Defendant, Another summons was filed by Messrs. Sahu Khan & Sahu Khan, the present solicitor of the Defendant for the reinstatement of the original summons of 12.10.1990 seeking only the removal of the registration of the Judgment. It was allowed.

Dr. Sahu Khan raised a preliminary objection to the registration and a ruling was given overruling the objection. It is unnecessary to repeat the contents of A the objection or my ruling. Further hearing was conducted subsequently on the same issue of registration and the ruling is awaited.

At the hearing both counsel made oral submissions for and against the registration. Dr. Sahu Khan's oral submissions are all in the nature of an attack towards the foreign Judgment under Section 6 of the Act. Before I go further into the argument, it is relevant at this stage to set out fully Section 6(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 registering court is satisfied-

(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 D

(iii) that the judgment debtor being the defendant in the proceedings in the original court 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; or

(iv) that the judgment was obtained by fraud; or

(v) that the enforcement of the judgment would be contrary to public policy in the-country of the registering court; or

(vi) that the rights under the judgment are not vested in the person by whom the application for registration was made;

(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had, previously to the date of the judgment in the original court, been the subject of a final and conclusive judgment by a court having jurisdiction in the matter."

He considers the attack under two heads - Public Policy and Territory. Under Public Policy what See. 6(1) states is that the registration may be set aside if the Judgment is contrary to the Public Policy of the registering court. Dr. Sahu Khan has gone to the extent of criticising the cause of action in Australia which forms the basis of the Judgment. In Section 2 of the Act, Judgment is defined as a Judgment or order given or made by a court in any civil proceedings or a Judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party. In the light of this definition, there is absolutely no room to go beyond the Judgment as a whole for the purpose of opposing registration in a foreign country. Perusing the affidavit of the defendant dated 6.1.1992, 1 have given consideration to the lamentable depositions made therein explaining his failure to raise certain issues in Australia at the trial. Those are not the concern here. They came well within the four corners of the court room in Australia. It is the registration stage that it has now reached which may be set aside on various grounds one of which is the Public Policy. Dr. Sahu Khan's main argument is that the enforcement is not permissible under the Exchange Control Act of Fiji. It is only meant to be applied in Fiji but any contract which is inconsistent with the provisions of the Act will be ineffective in its performance. He was critical of the formation of the contract in Australia. The defendant only played the part of a guarantor to the 1st Defendant who had purchased some properties in Brisbane.

He has only to provide to the plaintiff the moneys in case of a default by the 1st Defendant or the 2nd Defendant. The liability arises over the guarantee. There is no mention in the contract of any Exchange Control Act of Fiji.

In so far as Section 3 of the Act is concerned, there are only three ingredients E to be satisfied for the registering of a foreign Judgment in Fiji.

1) It has to be final and conclusive as between the parties in the original court;

2) It has to be for a payment of a sum of money, not being a payment in respect of taxes or the like;

3) That the delivery of the judgment is after the relevant proclamation.

One would have to see whether these ingredients are complied with. If so, the registration is permissible and correct. Nevertheless, it can be set aside under Section 6(1). Dr. Sahu Khan's argument on the public policy is not so forceful enough and relevant either to the facts of the case as to upset the registration of the Judgment.

As for the issue of Territory, he only submitted that the proclamation has to be made to the whole country and not to a part. He did not pursue the issue very much by saying that it is only a technical matter.

Mr. Patel countering Dr. Sahu Khan's argument submitted that the Judgment is from Queensland; it is not subject to any appeal; the judgment was validly registered in Fiji on 17.8.1990 under the Act; the Exchange Control Act applies to contracts entered into only in Fiji; defendant entered into the contract in Australia; the defendant has alleged some verbal agreements which he should have raised in Australia. He has referred me to Subsection 3 of Section 35 and Sec.2 and 4(1) of the fourth schedule.

I have to emphasise that Exchange Control Act of any country for that matter is designed to prevent the flow of currency from that country to other countries on illegal contracts or through illegal channels. It cannot be considered as an impediment, hindrance or an obstruction to the performance of a lawful contract. Hence there is no possibility of labelling the contract made between the plaintiff and the Defendant illegal or against the public policy of the registering country.

As I see the Exchange Control Act is used by the Defence as a weapon of attack to the registration when Section 2 of the fourth schedule states thus:

"Nothing, in the Act shall be contracted as preventing the payment by any person of any sum into any court in Fiji but the provisions of Part III shall apply to the payment of any sum out of court or otherwise to or for the credit of any person resident outside Fiji. This section is relevant only in the performance part of the contract and not to the registration."

The Exchange Control Act does not in any way tarnish the registration of the Judgment.

Mr. Patel answering Dr. Sahu Khan on the territory issue said that the nation has to abide by the proclamation. I agree with him on that.

I hold that there is not enough of affidavit evidence and effective oral submissions on behalf of the Defendant to enable me to set aside the registration of the Judgment and the application of the Defendant to set aside the registration is hereby refused. The plaintiff is entitled to costs of the action taxed if not agreed.

(Application dismissed.)