CKP Fishing Company Ltd v Owner of the Woo Yang 205 [1999] FJLawRp 29; [1999] 45 FLR 154 (6 August 1999)

[1999] 45 FLR 154

HIGH COURT OF FIJI ISLANDS

CKP FISHING COMPANY LIMITED

v

THE OWNER OF THE WOO YANG #205
MARINE PACIFIC LIMITED (Intervener)

[HIGH COURT, 1999 (Pathik J) 6 August]

Admiralty Jurisdiction

Practice: Civil- registration of foreign Judgment- compliance with the rules mandatory- Reciprocal Enforcement of Judgments Act (Cap 39) Sectio Reciprocal ocal Enforcement of Judgments Rules (Cap 39 - S

The intervener sought registration of a Ju a Judgment of the High Court of England which arose out of a salvage awar was argued that since the the vessel was already the subject of litigation in Fiji the precise provisions of the Reciprocal Enforcement of Judgments Rules did not need to be observed. The High Court rejected this submission and the application and HELD: that compliance with the rules is mandatory.

No Case wasd.
#160;
Application for trgistration of a foreign Judgment.

V. Kapadia&#1r tfor the Plaintiff
Ms. M. Chan for the Intervener;
Pat:#160;
By NoticNotice of Motion dated 15 March 1999 MarinMarine Pacific Limited (the “intervener”) has sought orders as follpon the grounds contained in the affidavit of Victor Fatiakatiaki sworn 19 February 1999 and filed herein:

“i); Judgment fo suheof U $156,$156,067.40 (or the Fiji equivalent) and costs and interest in the sum 163;15,273.97 (or the Fiji equivalent) and interest at the continuing daily rate of US$33.6$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);

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ii) ـ҈ A60; A DeclaDeclaration that the Intervener’s claim takes priority ove other claims;

iii) ;ɘ&#1he vese vessel &#el “Wo20;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) ټ & such fuch further and othd other relief as this Honourable Court deems fit.”

Bound facts
&

The ls regarding the fahe facts of this case areout iiaki&;s said said affi affidavitdavit and other subsequent affidavits filed herein. In so far as it is material to this application I state herr the relevant facts on whin 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 Fatiak stated, on 18 January 1999 the intervener obtained a salvage award over the vessel which wich 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 Court (ert (ex parte) made of 5 March 1999 the intervener was granted leave to intervene in these proceedings. And as ordered thion and Affidavit were served on the defendant by ‘delivering to and posting the same same at the entrance to the vessel identified as “Woo Yang # 205” at Walu Bay Wharf, Suva’.

A further affi sworn 18rn 18 March 1999 by Victor Fatiaki was filed wherein he stated, inter alia, that (a) intervener’s ‘claim has priority over all prior liens,uding the Plaintiff’s because it has preserved the prhe property to which earlier liens have attached’, (b) the President of the Company (defendant) has authorized 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 thervener&#ner’s affidavits the Plaintiff, in the affidavit sworn by Kim Sungsoo, 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 were 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.

Onpril 1999 an order waer was made by this Court for the vessel to be appraised and sold by the Admiralty Marshal.

Issu Court’s d7;s determination

It was a that befohear hear argumengument as to priority of claims, I ought to determine the intervener’s application as in (i) of the Motio15 March 1999 (su9 (supra), namely that the judgment obtained against the defendant in the the High Court of England be registered in Fiji under the Reciprocal Enforcement of Judgments Act (Cap.39) (the ‘Act’).

The issue therefore ishwhether 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.

Interven217;s submisubmissionThe vessel “Wo20;Woo Yang #205” lay stranded on Nasilai Reef outside Suva. The Intervener agreed on 4 August 1998 lve 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 Hight of England under RSC Order 73 r 31 (2). It was sealed on d 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 Interveners an orde order for the registration of the judgment in Fiji under the Act. It submits that “it has complied with the spir the rules of Cap 39”. Miss Chan for the Intervener submits that although the Rules rles 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.

Plainti217;s submissbmission

Mr Kapadia has ously arly 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 judgm#8220;at this stage does not give the Intervener any rightsights to claim any form of priority in the proceeds of the sale” of the vessel.

Detetion of the issu issue

In coring the issue befe 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 ant about iout it that there is in existence this foreign judgment and that it is capable ofg registered in Fiji under the Reciprocal Enforcement of Judgments Act Cap 39 provided there iomplcompliance with its provisions. Not only is it a judgment but it is a judgment in rem.
4th Ed. par. para 739 uthe the caption ‘Foreign Judgments’ where it is stated:

739. In ge. A l. A judgment in ry be ed as the judgment of a court of competent jurisdurisdiction determining the status of a pe a person or thing, or the disposition of ng, as distinct from the particular interest in it of a para 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 jut in rem pronouronounced 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 he world.

And >And furth para 740a 740 (ibid) Halsbur states as f as follows in regard to ‘judgments in rem relating to movables’ which I consider is pertinent to the issue before the Court:

<. Judgments in reatineatingovables. A foreigoreign judgment in rem relating to movablevables will be recognised and enforced in England if the movables were sit in the foreign country at the time of the proceedings. The. 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 that a foreign judg judgment in rem relating to movables can be enforced in England by an action in rem.

Provisof&#1b>b> &aules.br>
For ther the purposes of registering the judgment under the Act and the Rthe Rules made thereunder, the provisions of ought to be complied with in toto. To follow it ‘in spirit’ as urged by coun 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 ogment awards in the Unhe United ited Kingdom and Fiji”.

Unde2) of the Act it isit is mandatory that there be service on‘judgment debtor̵’ with the process of the original Court. The ‘judgment debtor’ is defined as ‘theon against whom the judgmendgment 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:

<220;(2) No judgment sent shall be ordered to be registered under this section if -

(60; & .....

(b)&#160 ټ .....
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(c) 㼠; jud deud debting ting tfendant iant in the proceedings was not duly servederved with with the the proceprocess ofss of the original court and did not appear notwithstanding that heordin resior was was carrycarrying oing on business within the jurisdiction of that Court or agreed to submit to the jurisdiction of that court; or

(d) ټ&##160;< .60; .....

(e) ...>

(f) & n&#..0; ..1;
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There is no disphat &#8t ‘servi217; ot befected on the dant auiredt all under the said s3(2) of the Act.
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I accept the arts ents of Mr KapadKapadia thia that that the core 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) &#160applicatiot must be mabe made ex-parte and by Originating Summons in the High Court of Fiji; (Rule 2)

(b) &#16e appiicatusn must be s be supported by an Affidavit of the facts exhibiting the Judgment which must be duly certified; (Rule 3)

(c) tho dep tenthe tfidavit mvit 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)& &&#160 fu60 fulle of abode oode of busf businessiness of the judgment creditor and the judgment debtor must be set out in the Affidavit; (Rule 3)

&

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

(f) &##10;&&#160 Sume Summons mons must be served in a proper manner as a Writ of Summons is required to be served i.e. on the judgmentor pally ot by service on the ship as has happened in this instance; (Rule 5)

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

(600;҈ rder gder g lea register the JudgmJudgment shall state the time within whichwhich the the judgmjudgment dent debtor is entitled to apply to set asie registration; (Rule 7)

(i)  &##160; noti wrin writing oing 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 r by nal se or by leav leave of e of the Cthe Court by substituted service or service out of jurisdiction; (Rule 10)

(j) & ټ the jude judgment dent debtor then is provided with time within which it could apply by Summons to the High Court ji toasideregistration or to suspend the execution on the judgment pursuant to Ruto Rule 13le 13;

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(k) &#1ursua R to 15le 15 no exno execution shall issue on a judgment registered under the Act until after the expiration of the timitethe Ogivinve to register after service on the judgment debtor of the nohe notice tice of reof registrgistration thereof;

(60; prior to issuiecution on a on a judgment registered under the Act the party must produce to the Court of Fiji an Affidavit of Service of the notice of the registration of the judgment punt pursuant to Rule 16.

Conclusion

For theseons the Intervntervener’s application for the registration of the foreign judgment under the Reciprocal Enforcement of Judgments Act Cap 39 is refused. otion ison is therefore dismissed with costs which I fix at $250.00.

(Application dismissed.)