Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 64
P1426/11	OPINION OF LADY SMITH Petition of GILLIAN MARY WALTON Petitioner; for REGISTRATION OF JUDGMENTS ­­­­­­­­­­­­­­­­­________________

Petitioner: O'Brien, advocate; Burness LLP

Respondent: Party, supported by Mr Wayne Lord

[Date of Issue]29 February 2012

Introduction

[1] This case called before me on the motion roll on 29 February 2012, in respect of the respondent's motion to set aside the registration of the judgments referred to in the interlocutor of 4 January 2012 and the petitioner's motion for correction of that interlocutor.

[2] I gave judgment ex tempore on 29 February 2012. On 3 April 2012, I was asked to provide a written judgment and I have now received the papers that were before me at the time of the motion roll hearing.

[3] The respondent, James Shanley, represented himself at the hearing, but he was supported by Mr Wayne Lord, who is a barrister in England and Wales and, I was advised, a lecturer, authority to do so having been granted under Rule of Court 12A.1 by interlocutor of 28 February 2012. The petitioner was represented by Mr O'Brien, advocate.

Background

[4] The petitioner and respondent were landlord and tenant respectively in the letting of property at 9 Coolong Road, Vaucluse, the respondent and his family having gone to live in Australia in 2008. Litigation arose between the parties (each party suing the other) in relation to the property and the letting arrangements. The respondent's solicitors withdrew from acting for him in September 2009 (see 6/7 and 6/8 of process).

[5] On 28 January 2010 and 16 February 2011, the petitioner obtained judgments against the respondent in the district court of New South Wales, Australia, for the sums referred to in article 1 of the petition (see 6/1, 6/2 and 6/3 of process). Those judgments have not been satisfied;the petitioner avers that the sums due are outstanding and at the hearing before me, the respondent did not suggest that he had paid anything to the petitioner.

[6] Further detail in relation to the litigation between the parties in Australia is set out in the note and answers that are appended to the petition in the reclaiming print.

The Petition

[7] The petitioner sought registration of the judgments referred to under and in terms of the Foreign Judgments (Reciprocal Enforcement) Act 1933.

The Interlocutor of 4 January 2012

[8] Following the procedure under Rule of Court 62.7, the petition for registration was put before me in chambers and being satisfied, on the evidence of the documents presented, that the judgments referred to were of a recognised court, were final and that payment in respect of them had not been made, I granted warrant for registration. The interlocutor referred per incuriam to the Administration of Justice Act 1920 . It should have referred to the Foreign Judgments (Reciprocal Enforcement) Act 1933. The interlocutor was served on the respondent and was extracted.

The Motion of 29 February 2012

Submissions for the Respondent

[9] The respondent's motion was made under section 4 of the 1933 Act which provides:

"4 Cases in which registered judgments must, or may, be set aside.

(1) On an application in that behalf duly 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-

(i) that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act; or

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

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

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

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

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

Section 5 of the 1933 Act is also relevant since the respondent indicated that he intended to try and appeal against the Australian judgments:

"5.(1) If, on an application to set aside the registration of a judgment, the applicant satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment, the court, if it thinks fit, may, on such terms as it may think just, either set aside the registration or 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 respondent presented a four page note of submissions, the first page of which founded, in part ,on the fact that the interlocutor referred to the Administration of Justice Act 1920; that was the case against him and he had sought and paid for legal advice on that basis. Otherwise, the submissions were that enforcement of the judgments would be contrary to public policy and that he was intending to seek to present a late appeal to the court in Australia.

[11] In oral submission, the respondent said that the whole thing was wrong. It was against public policy to enforce these judgments against him. That was because he was misled regarding the lease of the property. The petitioner was seeking to evade land tax. The lease was illegal. There was deception. There was a lack of compliance with fire regulations. He had a solicitor when the petitioner had raised her action against him. That solicitor withdrew from acting because there was an issue over his fees.

[12] He was, he accepted, ordered to find security for costs. He accepted that he had not done so and that that had led to the judgments against him being pronounced. He had, however, now contacted the court in Sydney to get copies of all the litigations between him and the petitioner so that he could apply to the court to appeal out of time. No such application had yet been made.

[13] The respondent referred to an unidentified West German case where, on public policy grounds, an application to register a judgment in another jurisidiction was refused because it could be enforced in Germany. He submitted that it was public policy in Scotland to dismiss an application for registration if it could be enforced in another jurisdiction; otherwise, valid claims would be stifled. It was not, he submitted, fair to have dismissed his claim on his failure to find security for costs, when it was a valid one. He thought that the petitioner had eighty thousand Australian dollars in the bank as prepaid costs since he had prepaid rent and paid a deposit which, together, totalled that amount. He did not explain how that sum could represent both rent/deposit and 'prepaid' litigation costs; his point seemed to be that the petitioner should have regarded that sum as set aside to meet litigation costs if they were awarded against him in the end of the day.

Submissions for the Petitioner

[14] For the petitioner, Mr O'Brien first made a motion that the interlocutor of 4 January 2012 should be corrected so as to substitute a reference to the 1933 Act. The court had, he submitted, power to do so at common law. He referred to the case of Provan's Trustee v Provan 1987 SLT 405 where Lord Morison had held , under reference to Maxwell's Court of Session Practice and the case of Miller v Lindsay (1850) 12D 964 that a Lord Ordinary had the power to correct a clerical error in an extracted decree where application was made de recenti. That was, he submitted, the situation in the present case; there was a clerical error and prompt application for its rectification was being made.

[15] Secondly, he submitted that nothing founded on by the respondent in his note or in oral submission ought to persuade me to set aside the registration of the judgments. Public policy did not support doing so. The respondent had had legal representation in Australia until September 2009. He had been advised that he ought to seek fresh legal advice. He knew of the dates of the relevant hearings. There had been service on him which satisfied the requirements of the 1933 Act . When it came to the matter of costs, he had made representations to the costs assessor by email. Even if the Australian courts had exercised their discretion differently from the way that the Scottish court might have done, that did not show that registration was contrary to public policy. Any allegation about the lease being illegal was irrelevant. There was no basis on which the respondent could demonstrate that the court in Australia had acted contrary to our public policy.

[16] Regarding the reference by the respondent to an intention to appeal, there was no appeal pending and he was now out of time to do so. Section 5 of the 1933 Act did not, in the circumstances, assist him.

Decision

[17] I retired to consider parties' submissions then returned to court and delivered judgment .

[18] I granted the petitioner's motion to amend the interlocutor and refused the respondent's motion to set aside the registration.

[19] Regarding the correction of the interlocutor, I was satisfied that I had power at common law to to grant the motion, as confirmed in the case of Provan's Trustee and that I should, in the circumstances, do so. The 1920 Act did not apply to the petitioner's application whereas the 1933 Act plainly did and the motion to correct was made promptly. I did not see that there was any prejudice to the respondent. The procedure under chapter 62 of the Rules of Court is the same for both the 1920 Act and 1933 Act applications and had been correctly applied. Although the respondent sought, at one point, to argue that the whole case against him was under the 1920 Act and that was his approach to the motion, he had infact, concentrated on the public policy arguments to which I have referred and on his belief that the petitioner should not have been successful against him in the Australian courts.

[20] Turning to the respondent's application to set aside the registration, I was not satisfied that he had brought himself within any of the provisions of s.4 of the 1933 Act. In particular, I could not see any respect in which it would be contrary to public policy for these ex facie valid judgments to be enforced in this jurisdiction. Regarding section 5, the respondent's stated intention to appeal was vague and uncertain and, furthermore, proceeded on the basis that he accepted that he was out of time to do so. I was not referred to any material which demonstrated that he was nonetheless "entitled to appeal" ( see section 5(1)). In these circumstances, I considered that it was not open to me to set aside the registration or to adjourn the application under section 5.

[21] On the petitioner's motion , I awarded the expenses of the hearing to her.