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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) For the purposes of the reciprocal enforcement of Judgments Act (Ch No 50) S. 5 (1) and (2). Jurisdiction of the courts of the country of the original court is determined exclusively within the meaning of the Act.

(2) Where a judgment debtor contested the jurisdiction of the foreign court but had not otherwise submitted to the jurisdiction of that court by voluntarily appearing in the proceedings, the registered judgment should be set 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 application to set 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 proceeded to argue his defence on the merits. But an application to set aside the registration of a foreign judgment is governed by the Reciprocal Enforcement of Judgments Act (Ch No 50). Section 5 is as follows:

“5. Cases in which registered judgments shall or may be set aside.

(1) On an application 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 that:

(i) the judgment is not a judgment to which this part applies or was registered in contravention of this part; or

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

(iii) 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) received notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear; or

(iv) the judgment was obtained by fraud; or

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

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

(b) may be set aside if the registering court is satisfied that the matter in dispute in the proceedings in the original court had at some time before 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.”

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) if 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) protecting or obtaining the release of, property seized, or threatened with seizure in the proceedings; or

(b) contesting the jurisdiction of that Court.

In this matter the subject action is an action in persona. The statement of claim in the action upon which judgment was obtained was for monies advanced to the defendant in the sum of K229,527 and default judgment for debt was entered for that amount ($A332,713 and costs of $A900). The question for decision is whether the Supreme Court of Victoria is deemed by virtue of the Act, to have had jurisdiction insofar as that relates to the application to have the registered judgment set aside. For these purposes I am 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 Exploration Co (Libya) Ltd (1980) 54 ALJR, a decision dealing with S. 7 (3) of Queensland Act which is substantially the same as S. 5 (2) of our act, the court there said (at p. 208):

“It is the purpose of the Act, as 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 dispenses altogether 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 application for registration 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 Word Publishing v Denis Reinhardt unreported Decision of the Supreme Court of Queensland in OS 589 of 1991 of the 9th August 1991.

Clearly the Supreme Court of Victoria had jurisdiction to enter judgment against the defendant in accordance with its own law. The defendant appeared and contested jurisdiction. But insofar as that decision 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 pronounced in absentee by a foreign court. The defendant did not therefore submit himself to the jurisdiction of the original court. The fact that he contested the jurisdiction is an exception by S. 5 (2) (a) (i) (B) of the Act and accordingly he did not, within the meaning of S. 5 (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 the Supreme Court 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 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