Stenhurst Pty Ltd v Golding International Pty Ltd [1995] PGNC 41; N1377 (30 October 1995)

Unreported National Court Decisions

N1377

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 158 OF 1994
BETWEEN:
STENHURST PTY LIMITED - Plaintiff
And:
GOLDING INTERNATIONAL PTY LIMITED - Defendant

Waigani

Andrew J
29 September 1995
30 October 1995

PRACTICE - Foreign Judgments - Registration of Foreign Judgments - setting aside registration - jurisdiction of foreign court - reciprocal enforcement of Judgment Act (Ch No 50) S. 5 (1), S. 5 (2) (a) (1).

Held:

(1) ـ&#1or ther the purpopurposes of the reciprocal enforcement of Judgments Act (Ch No 50) S. 5 (1) and (2). Jurisdiction ofcourtthe cyuntry of the original court is determined exclusively within the meaning ofng of the the Act.

(2) ټ Wa judgment debtor btor contested the jurisdiction of the foreign court but had not otht otherwise submitted to the jurisdiction at coy volily appearing in the proceedings, the registered judgment should be sete set asid aside.

Cases Cited:

Green & Company Pty Ltd v Green [1976] PNGLR 73

Government of Papua New Guinea & Davis v Barker [1977] PNGLR 380

Hunt v BP Exploration Co (LIBYA) Ltd 54 ALJR

Societe Co-operative Sidmetal v Titan International Ltd [1967] 3 all ER 494

Word Publishing v Denis Reinhardt (unreported Supreme Court of Queensland OS No 589 of 1991, 9th August 1991)

Counsel:

P Dowa for the Applicant

I Aigilo for the Respondent

30 October 1995

ANDREW J: This is an aation to set aset aside an order of the National Court on the 24th May 1994 ordering registration of a default judgment for debt entered on the 23rd December 1993 in the Supreme Court of Victoria at Melbourne against the defendant / judgment creditor for the amount of $A332,713.00 and costs of $A900.00.

The applicant has argued inter alia, that this was a default judgment and that the principle matter that must be shown is that he has a defence on the merits (reliance for that proposition was based on Green & Company Pty Ltd v Green [1967] PNGLR 73 and Government of PNG & Davis v Barker [1977] PNGLR 386. He has proceto argue his dhis defence on the merits. But an application to sideaside the registration of a foreign judgment is governed by the Reciprocal Enforcement of Judgments Act (Ch No 50). Section as follows:

&#5. &##160; Cases ises in whichsregid ered ered judgments shall or may be set aside.

(1) ټټ Oapplicationation made by any party against whom a regi registered judgment may be enforced, the the registration of the judgment:

(a) &ـ shall be sete set aside if the registering cong court is satisfied that:

(i) &##160;; ju60;judgmentgment is not a judgment to which this part applies or was registered in contravention ofon of this part; or

(ii) ټ&#the cof thntcouof y of the original court hart had no d no jurisdiction in the circumstances of s of the case; or

(iii) ;&#16e jud debter, being thng the defendant in the proceedings in the original c60; court,ourt, did not (notwithstanding that proces have duly served on him in accordance with the law of the country of the original coul court) rrt) received notice of those proceedings ificient time to enable him to defend the proceedings and dind did not appear; or

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

(v) ҈ the enfe enforcement of tde judgment would be contrary to public poli the ry of the registering court; or

(vi) #1660; the righ rights under tder the judgment are not vested in the person bm theication for regisregistratitration was made; or

(b) &#may be set aside if the rthe registering court is sati thatmatter in disputespute in t in the proceedings in the original court had at some time before the date of the judgment in the originalt bee subjf a final anal and cond conclusiclusive judgment by a court having jurisdiction in the matter.”

By Section 5 (2) the courts of the country of the original court shall be deemed to have had jurisdiction, (a) in the case of a judgment given in an action in persona:

(1) ـ if the the judgment debtor, being a defendant in the original court, submitted to the jurisdiction of that court by voluntarily appearing in the proceedings otherwise than for the purposes of:

(a) ټ&##160;ecting ting oing or obor obtaining the release of, property seized, or threatened with seizure in the proceedings; or

(b); contesting the jurisdiction of that Court.

In this matter tter the subject action is an action in persona. The stat of claim in the athe action upon which judgment was obtained was for monies advanced to the defendant in the sum of K229,527 afault judgment for debt was entered for that amount ($A332,713 and costs of $A900). T60; The qun for decision sion is whether the Supreme Court of Victoria is deemed by virtue of the Act, to have had jurisdiction insofar as that relates to the applicationave the registered judgment set aside. For these purp purposes saam satisfied that the question of jurisdiction is to be determined solely upon the criteria of S. 5 (2) of the Act and not otherwise. In Hunt v BP Exploratio(Lio (Libya) Ltd (1980) 54 a decision dealing with S.th S. 7 (3) of Queensland Act which is substantially the same as S. 5 (2) of our act, the court there saidp. 208):

“It is the purpose of the Act, as it s it was with its statutory predecessors in the United Kingdom, to replace the common law with a simpler and more effective system of enforcement of foreign judgments, the essence of which is that the foreign judgment, provided that it satisfies the necessary qualifications, is registered and enforced as if it were a judgment of the local court. The Act nses altogether wier with the old procedure whereby the judgment creditor sues on the foreign judgment so as to obtain a new judgment in the Supreme Court which is then enforced against the local assets of the judgment debtor. Instead the foreign judgment is registered and once registered, subject to certain qualifications, execution may be effected against local assets. The applon for registratioration does not involve an action in persona requiring service of the Supreme Court’s process in or outside the jurisdiction.”

The Act is based on reciprocity and not on the comity of nations; and therefore if the defendant does not submit to the jurisdiction of the foreign court, even though he has been duly served with process of that court under its powers to serve its process outside its own jurisdiction, the registration of the foreign judgment obtained against him in default will be set aside (See Societe Co-Operative Sidmetal v Titan International Ltd (1965) 3 ALL E.R. 494, a decision dealing with the United Kingdom Act which is again substantially the same as the PNG Act). See also Publishing v Deni Denis Reinhardt unreported Decision of the Supreme Court of Queensland in OS 589 of 1991 of the 9th August 19p>

Clearly the Supreme Court of Victoria had jurisdiction to enter judgment against the the defendant in accordance with its own law. The defendant appeare cont contested jurisdiction. Bsofar as that decision haon had extraterritorial effect the defendant, on all of the evidence took no further part in the proceedings and default judgment was entered. It was a decree prced ientbsentee by a foreigoreign court. The defendant did not therefore submit himself to the jurisdiction of the original cou160; The fact that he contested the jurisdiction is an exception by S. 5 (2) (a) (i) (B) ofB) of the Act and accordingly he did not, n the meaning of S. 5 (2) o(2) of the Act “submit to the jurisdiction of the court of the country of the original court by voluntarily appearing in the proceedings.” Accordingly tpreme Court ourt of Victoria cannot be deemed to have had jurisdiction.

I therefore uphold the application to set aside the registration of the judgment in this matter.

ORDER

Order of this Court ourt of the 24th May 1994 ordering registration of default judgment for debt entered on 23rd December 1993 in the Supreme Court of Victoria at Melbourne against the defendant for the amount of $A332,713.00 and costs of $A900, be set aside.

Costs to the applicant as agreed or taxed.

Lawyer for the Applicant: Paulus M Dowa

Lawyer for the Respondent: Marat Lawyers