PNG Sustainable Development Program Ltd v Paki [2022] PGNC 72; N9462 (23 February 2022)

N9462

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS(COMM) NO. 9 OF 2021 (IECMS)

BETWEEN:

PNG SUSTAINABLE DEVELOPMENT PROGRAM LIMITED

Plaintiff

AND:

REX LAM PAKI

First Defendant

AND:

SARAH MINA PAKI

Second Defendant

AND:

ORPHEUS NO.27 LTD

Third Defendant

Waigani: Tamade AJ

2022: 22^nd & 23^rd February

JUDGMENTS AND ORDERS – application by defendants to set aside registration of the Orders of the High Court of the Republic of Singapore in PNG – whether the orders of the High Court of Singapore can be set aside – grounds for setting aside of registration of Orders discussed – legislative requirements of setting aside registration of foreign judgments discussed -defendants have not met the requirements of the Act and the rules in PNG to set aside registration of the judgment of the High Court of the Republic of Singapore. Defendants application is dismissed with costs awarded to the Plaintiffs on indemnity basis.

Cases Cited

The following cases are cited and or considered in the judgment:

Application by Timothy Mathew O’Dwyer v Arnold Thoedorus Derks (2007) N3226

Stenhurst Pty Ltd v Golding International Pty Ltd (1995) N1377

Kalyk v Atlas Corporation Pty Ltd [1998] PGNC 76; N1760

WorkCover Authority of NSW v Placer (PNG) Exploration Ltd (2006) N3003

Deputy Commissioner of Taxation of the Commonwealth of Australia v Yii Ann Hii (2016) N7379

Legislation
Reciprocal Enforcement Judgements Act (Chapter 50)
National Court Rules

Counsel:

Ms Jeanale Nigs, for the Plaintiff

Ms Vanessa Rambua, for the Defendant

23^rd February, 2022

1. TAMADE AJ: These are proceedings that Plaintiff sought to register a judgment of the High Court of the Republic of Singapore in proceedings described as HC/S 865 of 2018 between the Plaintiff, the Defendants in these proceedings and others not named herein to be registered in Papua New Guinea.

2. Justice Thomas Anis heard the application and granted orders to register the Singapore judgment on 20 May 2021. The Notice of Registration of Judgment was filed on 30 June 2021 and served on the First and Second Defendants on 4 August 2021 and on the Third Defendant on 16 August 2021.

3. The Defendants have now filed this application by way of an Amended Notice of Motion filed 13 September 2021 to set aside The Registration of the Orders of the High Court of the Republic of Singapore in PNG.

4. To understand the proceedings in the High Court of the Republic of Singapore, the following are the important facts:

1. Proceedings in the Republic of Singapore were instituted by the Plaintiff against the Defendants and others on 31 August 2018.
2. The Defendants on receipt of the proceedings then challenged the jurisdiction of the Republic of Singapore and the Court in Singapore granted their application in reference SUM 1792.

100. PNGSDP, the Plaintiff appealed against the decision of the Court on the issue of jurisdiction and on 19 November 2019, the High Court in Singapore reinstated the proceedings stating that the Republic of Singapore does have jurisdiction to hear the matter and the matter proceeded to be heard in Singapore.

4. On 4 March 2020, the Court in the Republic of Singapore granted to the Plaintiff Judgment on Admission which is the judgment the Plaintiff registered herein in PNG.
5. The Defendant’s time to appeal the decision of the Republic of Singapore lapsed on or about 11 March 2020 under Singapore laws.
6. On 6 August 2021, the First Defendant, Mr Rex Paki filed an application to set aside the Court Orders of 4 March 2020 however that was refused by the Court in Singapore. The Second and Third Defendants herein never took any action to challenge the Orders of 4 March 2020.
7. The First Defendant has therefore lodged an appeal on the decision of the Singapore Court refusing to set aside the Orders of 4 March 2020 however there is no definite date of when that appeal will be heard.
   

5. The nature of the Court Orders registered here in PNG are in the following terms:

1. The proceedings are described as HC/S 865/2018 between, PNGSDP Limited v Rex Lam Paki, Sarah Mina Paki, OPPA Limited, Orpheus No.27 Limited, Argos Global (PNG) Ltd and Nick Oniotis in which it was adjudged that;
   
   1. The First Defendant is liable to account to the Plaintiff for the sums set out in Annex A hereto, being in total:
      1. Papua New Guinea Kina 1, 704 271
      2. Australian Dollars 6, 616 634.23
   2. The First Defendant is liable to pay Plaintiff the sums of;
      1. Papua New Guinea Kina 1, 704 271
      2. Australian Dollars 6, 616 634.23
   3. The Plaintiff is entitled to trace the sums under paragraph 1 above into any property, real or immovable, which the First Defendant has acquired using any part of the said sums;
   4. The Second and Fourth Defendants are jointly and severally liable to pay to the Plaintiff the sum of Australia Dollars 429 321;
   5. The First Defendant shall pay simple interest to the Plaintiff on the sums for which he has been adjudged liable under paragraph 2 above at the rate of 5.33 % per annum from 31 August 2018 to the date of this judgement;
   6. The Second and Fourth Defendants shall jointly and severally pay simple interest to the Plaintiff on the sums for which they have been jointly and severally adjudged liable under paragraph 4 above at the rate of 5.33% per annum from 31 August 2018 to the date of this Judgements; and
   7. The First, Second and Fourth Defendants shall jointly and severally pay to the Plaintiff the costs of and incidental to this action as against them, such costs fixed at S$25 000 including disbursements.
      

6. The Defendants herein seek to set aside the registration of the Orders of the Republic of Singapore on the basis that:

1. The Defendants have filed an application to set aside the Judgment in the High Court of Singapore on 6 August 2021. The application is pending a determination in Singapore.
2. The judgment debtor and or the defendants did not receive notice of the hearing of the default judgment hence did not appear and or the defendants did not have legal representation at the time of hearing of the default judgment application and

100. The Court in Singapore did not have the jurisdiction in the circumstances to hear and grant the Orders of 4 March 2020.
     

7. The Defendants rely on Order 13 Rule 74 of the National Court Rules and Section 5(1)(a)(ii) and (iii) and section 6 (1)(a) of the Reciprocal Enforcement of Judgements Act (Chapter 50).

8. Order 13 Rule 74 of the National Court Rules states that:

“74. Setting aside registration

1. The Court may, before the expiry of the time fixed by an order for registration or by an order under this sub-rule as the time within which the judgement debtor may file a notice of motion for an order setting aside the registration or extend the time so fixed.
2. Subject to subrule (3), the Court may, on motion by the judgement debtor, make an order, on terms, setting aside the registration.
3. Notice of Motion for the order must be filed within the time fixed under Rule 71(1) or under sub-rule (1).”
   

9. The relevant sections of sections 5 and 6 of the Reciprocal Enforcement of Judgement Act in which the Defendants rely on are as follows in section 5(1)(a)(ii) and (iii);

5. CASES IN WHICH REGISTERED JUDGEMENTS SHALL, OR MAY BE SET ASIDE.

(1) On an application duly made by any party against whom a registered judgement may be enforced, the registration of the judgement–

(a) shall be set aside if the registering court is satisfied
that–

(i) the judgement is not a judgement to which this Part applies or was registered in contravention of this Part; or
(ii) the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(iii) the judgement 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

And section 6(1)(a) of the Reciprocal Enforcement of Judgement Act;

6. POWER OF REGISTERING COURT ON APPLICATION TO SET ASIDE REGISTRATION.

(1) If, on an application to set aside the registration of a judgement, the applicant satisfies the registering court that–

(a) an appeal is pending; or
(b) he is entitled and intends to appeal, against the judgement, the court, if it thinks fit, may on such terms as it thinks just–

(c) set aside the registration; or
(d) adjourn the application to set aside the registration,until after the expiration of such period as appears to the court to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by the competent tribunal.

10. The Defendants rely on the case of In the Matter of an Application by Timothy Mathew O’Dwyer v Arnorld Thoedorus Derks (2007) N3226 in which Justice Manuhu stated that ‘section 5(1) of the Reciprocal Enforcement of Judgement Act is mandatory and not merely permissive’ by use of the word “shall” and on satisfying the grounds in that section.

11. I am not satisfied that ground 5(1)(a)(ii) of the Reciprocal Enforcement of Judgement Act is made out by the Defendants. The Defendants challenged the jurisdiction of the Singapore Courts, and it was decided in their favour however on appeal by PNGSDP, the High Court of Singapore ruled that it had jurisdiction to hear the matter and therefore the matter proceeded to hearing on the Admission of Facts in Singapore.

12. I am also not satisfied that ground 5(1)(a)(iii) of the Reciprocal Enforcement of Judgement Act was made out by the Defendants. The Affidavit of John Malcolm Wylie deposes to communication between the Plaintiff’s lawyers in Singapore to the Defendants regarding notice of the hearing on the Admission of Fact. Defendant pleads a hearing on a default judgment application however an application for default judgment was refused by the Court in Singapore and an application on Admission of Fact was heard which resulted in the decision the subject of registration in PNG. The Defendants were represented by lawyers in Singapore and on their cessation to act for them, the Plaintiff implored the Defendants to get representation and appear. It was the Defendant lawyers in Singapore then who appeared in Court on 28 February 2020 and sought an adjournment of the matter to 4 March 2020, the date of hearing of the Admission of Fact application.

13. The Defendants have misled the Court in their application that the judgment of the Singapore Court was a default judgment application, it was not. It was an Admission of Fact application pursuant to the Singapore Rules of Court. The Defendants through their lawyers had notice of the date of this application and on cessation of their lawyers acting for them, they never lodged an appeal within the appeal period challenging the decision.

14. The First Defendant then filed an application to set aside the Judgment of 4 March 2020 however that was refused, and they have now appealed in Singapore against the refusal to set aside Orders of 4 March 2020. The Defendants have not given correct and full disclosure of the proceedings in Singapore to assist the Court even as to facts that may not be in their favour.

15. After the issue as to jurisdiction was determined in Singapore, the Defendants took steps to submit to the jurisdiction of the Singapore Courts. They instructed their lawyers to appear in Court and seek an adjournment of the matter and sought the hearing date of 4 March 2020 wherein the Court heard the matter and made final orders which is the subject of the registration in PNG.

16. The Defendants’ reliance on section 5(2) of the Reciprocal Enforcement of Judgement Act is not pleaded in the application. In the case of Stenhurst Pty Ltd v Golding International Pty Ltd (1995) N1377, the Court held that where a judgment debtor contested the jurisdiction of the foreign court but had not submitted to the jurisdiction of that court by voluntarily appearing in the proceedings, the registered judgment should be set aside. This was where the Defendant challenged the jurisdiction of the Court and after a finding that the foreign court found that it had jurisdiction and proceeded to hear the matter, the defendant took no part in the proceeding after the jurisdiction issue was determined, the PNG Court set aside the registration of the judgment as it ruled that the Defendant did not submit himself voluntarily to the subject foreign court and therefore the decision arrived at was in his absence and to my mind out of reach from him.

17. The Defendant’s submission on reasons on public policy that such a judgment in Singapore should not be registered in PNG because it would set a bad precedent where litigants would engineer solutions to give jurisdiction to suits in Courts other than PNG, which is a competent court, to my mind is absurd. The Reciprocal Enforcement of Judgement Act does not apply only to judgments arrived at in reciprocating foreign countries, it also applies to judgments entered in PNG which can be enforced in foreign countries. Defendant’s submissions on public policy are therefore illogical and misconceived.

18. In Kalyk v Atlas Corporation Pty Ltd [1998] PGNC 76; N1760 (31 July 1998); Kapi DCJ as he then was found that ‘submitting to the jurisdiction of the Court of the country of the original court by voluntarily appearing in proceedings relate to personal appearance and by legal representation.

19. The case of WorkCover Authority of NSW v Placer (PNG) Exploration Ltd (2006) N3003 considered registering a judgment from the Compensation Court of NSW which was not a declared Court and therefore the judgment could not be registered.

20. In the case of Deputy Commissioner of Taxation of the Commonwealth of Australia v Yii Ann Hii (2016) N7379, the Applicant made an application to extend the time required to file an application to set aside registration of the judgment of the Supreme Court of Australia from a tax debt recovery. The defendants, in this case, have filed the application to set aside on the last day required to do so and therefore this case does not apply.

21. I am satisfied that after a challenge to the jurisdiction of the Court’s in Singapore, the Defendants have voluntarily taken steps to participate in the court proceedings in Singapore thereby submitting to the jurisdiction of the Court’s in Singapore. Annexure “JMW 3” in the Affidavit of John Malcolm Wylie filed on 11 October 2021 shows Defendant’s lawyers seeking an adjournment of the matter to file their Defence out of time.

22. Ms Nigs of the Plaintiff also submitted that the appeal which the Defendants state is pending a hearing and determination in the Courts in Singapore is not an appeal contemplated for under the Reciprocal Enforcement of Judgement Act. The appeal pending is on a refusal by the Singapore Court to set aside the Orders of 4 March 2020. Ms Rambua of the Defendants insists that it is an appeal within the meaning of section 1 of the Reciprocal Enforcement of Judgement Act as it includes setting aside a judgment and encompasses the decision of 4 March 2020.

23. The Defendants have attempted to overturn the decision of the Singapore Court firstly by way of an application to set aside and secondly by appealing the decision in refusing to set aside the orders of 4 March 2020 which is clearly a submission to the Courts of Singapore. I am of the view that the appeal is within the meaning as defined in section 1 of the Reciprocal Enforcement of Judgments Act however the prospect of that appeal is an uphill battle to my mind.

24. Defendants have not met the requirements of the Act and the rules in PNG to set aside registration of the judgment of the High Court of the Republic of Singapore. I am therefore minded in dismissing Defendant’s application with indemnity costs as warned by Plaintiff.

25. I, therefore, make the following orders:

1. The Amended Notice of Motion filed by the Defendants on 13 September 2021 is dismissed.
2. The Defendants shall meet the Plaintiff’s costs of this application on an indemnity basis.
   

Orders accordingly.

Dentons PNG: Lawyers for the Plaintiffs

Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Defendants