Citation: Ramanathan v Naidu [2007] NSWSC 693
Court: Supreme Court of New South Wales (Common Law Division)
Date: 4 July 2007
Judge(s): Associate Justice Malpass
Background
The plaintiff, a Singapore resident, obtained a default judgment in the Singapore High Court against the defendant, who resides in Sydney. The underlying claim concerned money said to be owed under a deed of release. The Singapore proceedings were duly served on the defendant in late January 2006, but he did not enter an appearance within the required 21 days. A default judgment for approximately AUD 614,990 was entered on 24 February 2006.
The plaintiff then applied to the NSW Supreme Court to register the Singapore judgment under the Foreign Judgments Act 1991 (Cth). A Deputy Registrar made orders registering the judgment in January 2007 and directed that the defendant had 14 days from service of the registration notice to apply to set it aside. The defendant was served on 5 February 2007 but did not apply within that period and did not seek an extension of time before the deadline expired.
On 26 February 2007, the defendant filed a Notice of Motion seeking to set aside the Registrar's orders. That application, made after the 14-day window had closed, formed the subject of the hearing before Associate Justice Malpass.
Legal Issues
- Whether the defendant could apply to set aside the registration of the foreign judgment when he had failed to apply within the 14-day period specified by the Court's orders and the Supreme Court Rules 1970 (NSW)
- Whether the defendant had received insufficient notice of the Singapore proceedings to enable him to defend them (s 7(2)(a)(v) of the Foreign Judgments Act 1991 (Cth))
- Whether the Singapore judgment had been obtained by fraud (s 7(2)(a)(vi) of the Foreign Judgments Act 1991 (Cth))
- Whether the Singapore courts had jurisdiction (s 7(2)(a)(iv)) (abandoned during the hearing)
Decision
Procedural bar: expiry of the 14-day period
The Court found that the defendant's failure to apply within the 14-day window, or to seek an extension before it expired, was fatal to the Notice of Motion. Under Part 59A, rule 8 of the Supreme Court Rules 1970 (NSW), any application for an extension of time had to be made within that 14-day period. Because the defendant did neither, the Motion was doomed to fail on this ground alone. The Court nonetheless addressed the substantive arguments.
Insufficient time to defend (s 7(2)(a)(v))
The defendant's affidavit material explained his failure to appear in Singapore on the basis that a serious motor vehicle accident in Egypt had prevented him from travelling to Singapore. His Honour found, however, that the evidence did not assert that he lacked sufficient time to defend the proceedings: it said only that he could not travel to Singapore personally. The defendant's affidavits contained nothing to establish that he could not have arranged entry of an appearance or secured representation in Singapore or Sydney within the period of approximately 25 days between service and default judgment. The Court was not satisfied the ground under s 7(2)(a)(v) was made out.
Fraud (s 7(2)(a)(vi))
Two fraud allegations were raised. The first concerned an apparent discrepancy in the deed of release, where the first payment date preceded the deed's execution date. The second alleged an incorrect calculation of interest in the Singapore pleadings. His Honour found that accurately reproducing the deed's terms in a pleading cannot itself constitute fraud, and that no evidence supported the allegation. On the interest calculation, even if the figure were wrong, the Court found that amounted to error at most, not fraud. His Honour observed that "fraud" in the context of s 7 contemplates actual fraud in the conventional sense, typically involving the giving of false evidence to induce a court to reach a wrong conclusion. The material fell well short of that standard.
Orders Made
- The Notice of Motion was dismissed.
- The defendant was ordered to pay the costs of the Notice of Motion.
Key Takeaways
- An application to set aside a registered foreign judgment, and any application for an extension of time to bring such an application, must be made within the time period specified by the Court at registration. Failure to act within that window is itself a complete bar to the application.
- Under s 7(2)(a)(v) of the Foreign Judgments Act 1991 (Cth), a judgment debtor seeking to set aside registration on the ground of insufficient notice must establish more than a personal inability to travel to the foreign jurisdiction. The evidence must affirmatively show that there was insufficient time to arrange a defence or representation.
- "Fraud" within the meaning of s 7(2)(a)(vi) requires actual fraud in the conventional sense, generally involving false evidence that induces a court to reach a wrong conclusion. Reproducing contractual terms accurately in a pleading, or miscalculating interest, does not meet that threshold.
- Allegations of fraud made without evidentiary support, and relying instead on submissions from the Bar table, will not satisfy the statutory ground for setting aside registration.
- In dismissing the motion, the Supreme Court signalled that unmeritorious procedural manoeuvres, including a last-minute adjournment application and an unnoticed extension application raised during the hearing, will not delay enforcement of registered foreign judgments.
Legislation and Cases Referenced
Legislation
- Foreign Judgments Act 1991 (Cth), particularly s 7(2)(a)(iv), (v) and (vi)
- Supreme Court Rules 1970 (NSW), Part 59A, rule 8
Cases
No specific cases were identified by name in the judgment text. The Court noted that several decisions on the meaning of "fraud" were cited in argument but found it unnecessary to resolve any divergence of views among them for the purpose of the decision.