First Property Holdings Pte Ltd v Nyunt [2019] NSWSC 249 (13 March 2019)

Last Updated: 14 March 2019

Supreme Court New South Wales

Case Name:	First Property Holdings Pte Ltd v Nyunt
Medium Neutral Citation:	[2019] NSWSC 249
Hearing Date(s):	3, 4, 5, 12 October 2017, 23, 30 April 2018
Decision Date:	13 March 2019
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Defendant’s motion dismissed with costs
Catchwords:	JUDGMENTS AND ORDERS – foreign judgments registered as a judgment of the Court under the Foreign Judgments Act – application by the defendant/judgment debtor to have registration order set aside on multiple grounds – whether the defendant had agreed to submit to the jurisdiction of the courts of Singapore – whether the defendant received notice of the proceedings in Singapore in sufficient time to enable him to defend those proceedings – whether the foreign judgments were obtained by fraud – whether the proceedings in Singapore were an abuse of process – consideration of public policy ground for setting aside registration of a foreign judgment
Legislation Cited:	Burma Companies Act 1914 (Myanmar), ss 282, 282A Foreign Judgments Act 1991 (Cth), ss 6(4), 7, 7(2), 7(3)(a)(iii), 7(4) Penal Code 1861 (Myanmar), s 114 Specific Relief Act 1877 (Myanmar), s 9 Transfer of Property Act 1882 (Myanmar), s 53 Uniform Civil Procedure Rules 2005 (NSW), r 53.5(1)
Cases Cited:	Bank Polska Kasa Opieki Spolka Akcyjna v Opara [2010] QSC 93; 238 FLR 309 Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194 Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333 Global Partners Fund Ltd v Babcock and Brown Ltd [2010] NSWCA 196; 79 ASCR 383 in Abouloff v Oppenheimer (1882) 10 QBD Keele v Findley (1990) 21 NSWLR 444 Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150 Moore v Inglis (1976) 9 ALR 509 Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3 Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 Telesto Investments Ltd v UBS AG [2013] NSWSC 503; 94 ACSR 29 Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491; [2006] FCA 979 Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5; 341 ALR 415 Yoon v Song [2000] NSWSC 1147; 158 FLR 295
Texts Cited:	Hansard, 29 May 1991, p 4218 Martin Davies, Andrew Bell and Paul Le Gay Brereton, Nygh’s Conflict of Laws in Australia (9th ed, 2014, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	First Property Holdings Pte Ltd (plaintiff) Michael Nyunt (defendant)
Representation:	Counsel: C Colquhoun with T Boyle (plaintiff) D DeBuse (defendant) Solicitors: HFW Sydney (plaintiff) McCooe Raves & Poole (defendant)
File Number(s):	2017/65638
Publication Restriction:	None

JUDGMENT

1. HER HONOUR: Mr Michael Nyunt is a national of Myanmar and a citizen and resident of Australia. In 1996, Mr Nyunt had discussions with a Singaporean businessman, Mr Goh Soo Siah, with a view to investing in property development in Myanmar. As a result of their discussions, Mr Nyunt entered into a joint venture agreement with a Singaporean company, First Property Holdings Pte Ltd (Mr Nyunt’s brother was also a party to that agreement but nothing turns on his involvement). The joint venture agreement contemplated the advancement of funds by First Property for the purposes of the joint venture secured by the issue of a convertible debenture by the joint venture company. The debenture identified as principal “the loan of US$7,600,000 borrowed by the Company” (Town and City Co Ltd). For reasons associated with Myanmar law, the shares in Town and City were held by Mr Nyunt and his brother (who held his share on trust for Mr Nyunt).
2. In early 1998, by which time First Property contends its investment in the joint venture of USD 7,600,000 was almost exhausted, Mr Nyunt entered into a loan agreement with First Property to borrow USD 850,000.
3. The events that followed are the subject of bizarrely conflicting versions addressed in detail below. In short, Mr Nyunt claims that the transactions contemplated in the written agreements did not proceed; that no funds were in fact ever advanced by First Property on its own account under the joint venture agreement but instead Town and City used Mr Nyunt’s own funds “repatriated” through accounts held by First Property and other entities; and that no funds were advanced to him or for his benefit under the loan agreement. First Property contends that funds were advanced by it as contemplated by both agreements and that Mr Nyunt and the joint venture company have misappropriated assets of the joint venture to Mr Nyunt’s benefit.
4. In July 2015, following many years of litigation between First Property and Mr Nyunt in Myanmar, First Property commenced proceedings against Mr Nyunt in the High Court of the Republic of Singapore to recover the alleged debt under the 1998 loan agreement and damages for breach of fiduciary duty in respect of Mr Nyunt’s treatment of the assets of the joint venture. Mr Nyunt was served personally (in Australia) with the writ and statement of claim in those proceedings on 19 December 2015. On 14 January 2016, no appearance having been entered by Mr Nyunt in those proceedings, default judgment was entered in favour of First Property. The Court at that stage entered judgment in the sum of USD 585,143.67 in respect of the 1998 loan agreement plus interest on that sum and costs fixed at SGD 3,530. In respect of the claim for breach of fiduciary duty, the Court gave judgment for damages to be assessed. I will refer to that judgment as the primary judgment.
5. On 7 November 2016, damages in respect of the claim for breach of fiduciary duty were assessed in the sum of USD 66,243,572.84. Costs were fixed at SGD 30,000. I will refer to that judgment as the assessment judgment.
6. On 2 March 2017, First Property made an application pursuant to s 6 of the Foreign Judgments Act 1991 (Cth) to have the two Singapore judgments registered as a judgment of this Court. That application came before Natalie Adams J as duty judge that day. Her Honour made an order that the two judgments be registered as a judgment of this Court in the amount of USD 66,828,716.51 (the sum of the two judgment amounts) and SGD 33,530.00 (presumably reflecting the costs orders) plus interest in a nominated amount.
7. As required by s 6(4) of the Foreign Judgments Act and r 53.5(1) of the Uniform Civil Procedure Rules 2005 (NSW), her Honour made an order permitting Mr Nyunt to bring an application under s 7 of the Act to have the registration order set aside within 14 days of service of the notice of registration. Mr Nyunt filed a notice of motion within the period allowed under that order. This judgment determines Mr Nyunt's application.
8. The Foreign Judgments Act makes provision for the enforcement of foreign civil judgments in Australia by what was described in the second reading speech as “a simple registration process”: Hansard of 29 May 1991 at page 4218. While it is not necessary to have recourse to the second reading speech in order to construe the Act, it is pertinent to repeat the observation made on that occasion that “with the increased mobility of persons and money across borders, the need for, and benefits of, an effective capacity to enable a judgment given in one country to be enforced against assets in another country are obvious”: Hansard of 29 May 1991 at page 4218.
9. The circumstances in which the registration of a foreign judgment is liable to be set aside are stated, apparently exhaustively, in s 7(2) of the Act. An application to set aside registration of a foreign judgment is not an occasion for this Court to review the merits of the foreign decision: Kok v Resorts World at Sentosa Pte Ltd [2017] WASCA 150 at [16] per Martin CJ; Murphy and Beach JJA agreeing at [49] and [50]. Even if a mistake as to fact or law appears on the face of the proceedings before the foreign court, assuming any such mistake to have been made within jurisdiction, the merits of the judgment cannot be reviewed in this Court: Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194 at [77]- [80]. It follows that the proper approach is to confine attention to the grounds stated in s 7(2).
10. In the present case, a great deal of the evidence and the submissions were directed to the underlying merits of the dispute (in particular, the question whether funds were advanced under the 1998 loan agreement and the question whether there was a fiduciary relationship). I accept that, to the extent that such material informs the grounds under s 7 relied upon in the motion, it is necessary to have regard to it. However, as submitted by Mr Colquhoun, who appears with Mr Boyle for First Property, it is not otherwise appropriate for this court to go behind the judgments entered by the High Court of Singapore.
11. Section 7 distinguishes between circumstances in which the court “must” set the registration of the judgment aside (listed in s 7(2)(a)) and circumstances in which the court “may” set the registration aside (stated in s 7(2)(b)). Where a ground under s 7(2)(a) is established, the debtor has a right to have the registration of the foreign judgment set aside ex debito justiciae “without more ado”: Barclays Bank Ltd v Piacun [1984] 2 Qd R 476 at 483 per Macrossan J; Bank Polska Kasa Opieki Spolka Akcyjna v Opara [2010] QSC 93 at [49] per McMurdo J; 238 FLR 309. To set aside registration on such a ground does not offend the purpose of the Act but rather serves its intention that not every judgment duly given according to the laws of the place where it was given should be registrable or remain registered once an application is made to set it aside: Bank Polska at [50].
12. Mr Nyunt’s notice of motion filed 17 March 2017 listed numerous grounds for having the registration of the judgment set aside. They combine factual assertions and legal propositions not always formulated by reference to the language of any particular ground allowed under s 7. The consideration of the application has been significantly complicated by the fact that, while First Property’s submissions addressed each ground specified in the motion in turn, Mr Nyunt’s submissions did not. Some points were developed in Mr Nyunt’s submissions in ways not articulated in the written grounds set out in the motion; in those instances it was not easy to discern where or indeed whether the parties had engaged with the same point on the same terms. I have dealt with the grounds in the motion as I understood them to be put by Mr Nyunt at the hearing but in the order in which they were addressed in First Property’s submissions, which created at least the semblance of order by following the sequence of s 7.

Background

13. Before turning to those grounds, it is helpful to understand more about the background to the Singapore proceedings. The joint venture was conceived in discussions between Mr Nyunt and Mr Goh, then the managing director of Allgreen Properties Pte Ltd, the real estate division of a Singapore-based investment company, Kuok (Singapore) Ltd (Mr Nyunt says he did not at that stage know the identity of the companies standing behind Mr Goh; it is not clear what turns on that). Mr Goh was a director of First Property. At some point Mr Goh introduced Mr Nyunt to Mr Michael Chang, also a director of First Property.
14. Mr Nyunt attributes the idea of the joint venture to an invitation extended to him by Mr Goh to “accelerate [his] wealth creation” by investing funds (implicitly, his own) in real estate in Myanmar. Mr Goh says Mr Nyunt approached him to discuss an investment opportunity for Mr Goh’s interests presented by a commercial building in Yangon called “Tarmway Plaza”. In any event, the discussions culminated in the entry into the joint venture agreement. As already noted, the parties to the agreement were Mr Nyunt, his brother and First Property. The agreement was dated 9 September 1996.
15. The agreement recorded that a company known as Town and City Co Ltd had been incorporated in Myanmar on 12 June 1996 to undertake, as a joint venture business, the development of property projects in Myanmar. In fact, Town and City was not incorporated until 30 October 1996. First Property contends that nothing turns on that for present purposes.
16. The projects in contemplation at that time were the Tarmway Plaza development and some properties in Natmauk Lane, also in Yangon. First Property contends that the projects of the joint venture were to be undertaken with funds contributed by First Property (or companies associated with it) and Mr Nyunt in proportion to their respective interests in the joint venture reflected in the parties rights under the debenture (First Property as to 95% and Mr Nyunt as to 5% with an option to increase his share to 20%: see clause 3.3 of the joint venture agreement). In return for his entitlement to a 5% interest, First Property contends Mr Nyunt was to act as First Property’s agent in supervising and managing the investments. That appears to be disputed by him.
17. As already noted, the shares in Town and City were held beneficially by Mr Nyunt. It appears to be common ground that that was because, at the time the joint venture agreement was entered into, there was a prohibition on foreign ownership of real property in Myanmar. First Property’s interest was to be protected by the debenture.
18. First Property’s version of those events is consistent with the provisions of the joint venture agreement. Clause 3.2 of the agreement required Mr Nyunt and his brother to procure that Town and City would issue a convertible performance debenture on the terms set out in appendix 2 to the agreement. Clause 3. 3 provided that, at the earliest possible time after First Property was legally entitled to become a shareholder of Town and City, the principal secured by the debenture would be converted to not more than 95% of the issued capital in Town and City in the name of First Property. Upon conversion, Mr Nyunt would hold not less than 5% of the issued capital with an option to increase his share to 20%.
19. The joint venture agreement included a clause relied upon by First Property as a submission to jurisdiction clause (cl 14) as follows:

“GOVERNING LAW
This Agreement shall be governed by and construed in all respects in accordance with the laws of Singapore and the Parties hereto agree to submit to the non-exclusive jurisdiction of the Singapore courts.”

20. The convertible performance debenture was represented as having been executed by Town and City on 20 September 1996. However, as already noted, contrary to the recitals in the joint venture agreement, that company had not in fact been incorporated by that date. In his affidavit sworn 9 June 2017, Mr Nyunt stated that, following its incorporation, Town and City never ratified or otherwise confirmed the debenture. The significance of that evidence for present purposes was not explained. First Property did not seek to enforce the debenture in the proceedings in Singapore. Indeed, if the debenture was unenforceable due to the non-existence of the company at the time it was purportedly issued, that would explain First Property’s decision to pursue a remedy against Mr Nyunt personally for breach of fiduciary duty (that is not a submission that was put; it is merely an observation).
21. As contemplated by clause 3.3 of the joint venture agreement, the debenture secured the “principal” which was defined as the loan of USD 7,600,000. Clause 2.1 of the debenture provided that, subject to clauses 9 and 11.3, Town and City would pay the principal to the subscriber (defined as First Property) or subsequent holder of the debenture on demand. Clause 7 of the debenture repeated the representation that Town and City was a limited liability company having been duly incorporated on 12 June 1996 and that its shareholders and members of the board were Mr Nyunt and his brother.
22. The form of debenture annexed to the joint venture agreement (unexecuted) contemplated submission to the jurisdiction of the courts of Myanmar. However, cl 15. 5 of the debenture as executed contained a clause submitting to the jurisdiction of Singapore, as follows:

“Interpretation, Applicable Law; Domicile
(a) This Debenture shall be construed in accordance with and governed by the laws of Singapore in effect at the date of execution of this Agreement.
(b) For all purposes hereunder, the Company [Town and City] and the Holder hereby submit to the non-exclusive jurisdiction of the Singapore courts.”

23. As already noted, Mr Nyunt claims that the transactions contemplated in those agreements did not proceed. It is not suggested that the properties in question were not acquired and developed; the issue raised is whether that was done with funds invested by First Property. Mr Nyunt’s evidence on that issue is addressed in further detail below.
24. First Property contends that, prior to the execution of the joint venture agreement, a number of payments were made towards the development of the Tarmway Plaza property and the purchase of the Natmauk Lane properties. The detail of those payments was addressed in great detail in First Property’s evidence and submissions. In short, First Property contends that the joint venture agreement and convertible performance debenture reflected the basis upon which the joint venture had in fact proceeded since April 1996, that is, that First Property Holdings (or entities on its behalf) would advance 95% of funds to Town and City to be used for the purposes of property development in Myanmar (specifically, the development of the Tarmway Plaza property and the Natmauk Lane properties) on the basis that it would receive either 95% of the shares in Town and City upon being permitted to hold such shares under Myanmar law or 95% of the proceeds upon any winding up of Town and City. In return for his 5% contribution, Mr Nyunt was (upon conversion of the debenture) to receive 5% of the shares in Town and City with an option to increase his shareholding to 20%.
25. By 10 November 1997, according to First Property, the amounts that had been advanced by it for the purposes of the joint venture fell just short of the USD 7.6 million limit of principal identified in the debenture.
26. In his affidavit sworn 9 June 2017, Mr Nyunt said:

“In late 1997 I found myself short of funds and unable to fund the completion of a housing development project in Thin Gun Gyun Township that I was involved in and I approached [First Property Holdings] to loan this money to me to do this.”

27. On 3 March 1998, First Property and Mr Nyunt entered into a loan agreement. Its terms were relatively straightforward; it provided that, in consideration of First Property “agreeing to grant and continuing to grant” to Mr Nyunt the sum of USD 850,000 “only”, he covenanted to repay that sum in five equal instalments on nominated dates or as agreed.
28. The loan agreement included a jurisdiction clause in the following terms (clause 7.6):

“This Loan shall be construed in accordance with and be governed by the laws of Singapore in effect at the date of execution of this Agreement. For the purposes hereunder, the Borrower and the Lender hereby submit to the non-exclusive jurisdiction of the Singapore courts.”

29. Mr Nyunt claims that, although he entered into the 1998 loan agreement following his own request for funds, the loan was not approved by the Central Bank of Myanmar and he did not draw down any of the loan money pursuant to that agreement.
30. First Property Holdings presented a different characterisation of those events. According to the evidence of Mr Chang, the additional loan to Mr Nyunt was to be used by him solely for the purposes of the joint venture. First Property submitted that is consistent with a letter sent by Mr Nyunt to First Property dated 21 November 1997 in which he described the agreement as one to “extend loans [to Mr Nyunt] as working capital for completion of the construction projects undertaken by Town and City Co Ltd, a Myanmar company of which I am the major shareholder”, although it may be observed that the formality of the letter sits at odds with the relationship of the parties as joint venturers.
31. Between 8 January 1998 and 24 April 2000, 13 payments totalling USD 598,536.69 were made, as First Property Holdings perceived the position, towards the expenses of the joint venture. That is denied by Mr Nyunt. The documentation supporting those payments reflects the arrangements outlined above concerning the way in which the joint venture was to operate.
32. In summary, First Property characterises the position under the joint venture as follows: a total of USD 8,185,143.67 was advanced by First Property in 66 payments between April 1996 and April 2000. First Property attributes USD 7.6 million of that amount as having been paid “under the [debenture]” and USD 585,143.67 under the loan agreement with Mr Nyunt.
33. In an affidavit sworn on 17 March 2017 (not read by Mr Nyunt on the present application but tendered by First Property as exhibit B), Mr Nyunt stated that no business activity was ever conducted on the basis of the joint venture because First Property “never contributed any money to the joint venture”. That affidavit was sworn in response to an order made by Campbell J requiring Mr Nyunt to file and serve an affidavit providing full detail of the evidence relied upon to support the motion. My Nyunt stated that, at the time the affidavit was sworn, he was not in possession of any documents to support the contents of the affidavit because they were in Myanmar.
34. In his affidavit sworn 9 June 2017 (read on the present application), Mr Nyunt repeated that assertion, saying at par 46: “USD 7,600,000.00 was not paid by [First Property] to either [Town and City], myself or my brother ... either in Myanmar, Singapore or anywhere else on the 9th September 1996 or at any other time before or after”. However, in a later affidavit sworn 19 September 2017 (after First Property’s evidence had been served), Mr Nyunt accepted that monies had been remitted but said none of those remittances were loan moneys. Instead, he characterised them as the “repatriation” of his own money into Myanmar which he said was channelled through accounts held by other entities. The use of accounts held by others to repatriate Mr Nyunt’s own funds into Myanmar was not explained.
35. In cross examination, Mr Nyunt accepted that he had not previously put forward that explanation (before swearing the September affidavit). Mr Nyunt sought to explain his earlier denial that any funds were received as follows (Tcpt, 4 October 2017, p 81(36)):

“I’m not saying I have not received or received some money. I’m saying that I have not received any loan or debenture money, that is what I want to emphasise.”

36. In his evidence in chief, Mr Nyunt said that the so-called repatriation agreement had been reduced to writing. He later identified the alleged written agreement as a letter dated 31 March 1996 from him to Julie Chan of Leo Property Management Pte Ltd (Tcpt, 4 October 2017, p 82(8); CB 694). In that letter, Mr Nyunt asserts an intention to repatriate his own funds in the order of USD 10 million “through your company”. Mr Chang and Mr Goh denied ever seeing that letter (which, in any event, pre-dates the joint venture agreement).
37. The evidence relied upon by First Property in the application before me included a lengthy and detailed affidavit with the supporting records from Ms Lim Poh Hiang, a financial controller employed by Allgreen. Ms Lim’s evidence was closely tested in cross-examination. Ultimately, Mr Nyunt abandoned the contention that there was no evidence to support the advancement of USD 7,600,000 by First Property. The rage in respect of the USD 585,143.67 under the loan agreement was maintained.
38. As already noted, this Court is not tasked with determining the merits of those competing claims except to the extent of any issue properly raised under s 7 of the Foreign Judgments Act.
39. In around October 2000, the Natmauk Lane properties were transferred by Town and City to Mr Nyunt and his wife for a sum equivalent to approximately 20% of the original purchase price paid by Town and City for those properties. According to First Property, that occurred without its knowledge or consent and at a time when Mr Nyunt was “ostensibly discussing with [First Property] plans for its development” by Town and City (CB 1820). First Property was quick to accuse Mr Nyunt of breaching the joint venture agreement, causing Town and City to breach the terms of the debenture and breaching his duties as a director of Town and City and as a fiduciary.
40. In around February 2004, First Property was removed from the management and possession of the Tarmway Plaza property.
41. There followed a series of legal proceedings conducted over many years in Myanmar between First Property and Mr Nyunt. The detail of those proceedings is considered below in the context of the particular grounds to which it relates.

The Singapore proceedings

42. The Singapore proceedings were commenced by writ of summons with an attached statement of claim filed in the High Court of Singapore against Mr Nyunt on 19 June 2015.
43. On 1 July 2015, First Property sought leave ex parte to serve the writ on Mr Nyunt out of the jurisdiction. That application was supported by an affidavit sworn on 1 July 2015 by Mr Michael Chang.
44. The High Court of Singapore granted leave to serve the writ outside the jurisdiction. Mr Nyunt was served personally with the writ and the statement of claim in Australia on 19 December 2015. He accepts that he had actual notice of the proceedings from that time. He accepts that he understood when he received the writ that it was claimed that First Property had advanced monies to Town and City under the joint venture agreement. He also accepts that he read the following endorsement contained on the writ:

“You must satisfy the claim or enter an appearance within 21 days after the service of this writ, failing which the plaintiff may proceed with the action and enter judgment against you without further notice.”

45. Mr Nyunt wrote to the solicitors for First Property in Singapore within the 21 day period allowed for entering an appearance. However, he did not enter an appearance in the proceedings.
46. First Property applied for and obtained default judgment on 14 January 2016. As already noted, judgment was entered on that date for the liquidated sum claimed under the 1998 loan agreement. Judgment was also entered for damages to be assessed in respect of the claim for breach of fiduciary duty. There was correspondence with Mr Nyunt following the entry of default judgment, the detail of which is considered below.
47. On 7 November 2016, the assessment of First Property’s damages claim was heard before a judicial commissioner. The Court gave judgment for First Property ordering Mr Nyunt to pay:

“The sum of US$66,243,572. 84 as the damages assessed under paragraphs 36 to 39 of the [amended statement of claim] and as per prayer (1) of the [amended statement of claim]”.

48. Costs were fixed at SGD 30,000 “plus reasonable disbursements”.

Grounds specified in the notice of motion

49. The grounds specified in the notice of motion are as follows:

“(a) Pursuant to section 7(2)(a)(iv) of Foreign Judgments Act 1991 the High Court of Singapore had no jurisdiction to hear the claim or alternatively parts of the claim by reason that:
i. the Defendant did not submit to the jurisdiction of the Republic of Singapore and there was no jurisdiction in that Court with respect to the claims made by the Statement of Claim filed 19 June 2015 and amended by Statement of Claim filed and dated 7 September 2016 which was unserved and was subsequent to the judgment for the sum of USD585143. 67 entered on 14 January 2016.
ii. the subject matter of the judgment (other than the claim for monies lent) was immovable property located in Myanmar (the value of which was provided by evidence to the High Court of Singapore but not the defendant) and this Court should not have entered judgment by reason of Section 7(4)(a) of the Foreign Judgments Act.
iii. the claims made in the Statement of Claim dated 14 January 2016 before the High Court of Singapore (and proceeded with before that Court) were :

a. with respect to breach of fiduciary duties or trust and were not contractual in nature and the claims proceeded with allegedly arose under a debenture agreement to which the defendant was not a party and had not submitted to the jurisdiction of Singapore
b. with respect to monies that were sought to be recovered from the defendant in the sum of USD585143.67 these were not advanced to him on the plaintiff’s case originally pleaded in the High Court of Singapore (and no amendment was served upon the defendant) (such amendment was not made at the time judgment was entered on 14 January 2016) and there was no jurisdiction for the Court in Singapore to enter judgment with respect to, it and/or
c. the obligations relied upon were obligations owed by the company incorporated in Myanmar known as Town & City Co. Ltd (TCC) and not obligations owed by the defendant.

iv. On their proper construction the joint venture agreement and other agreements referred to in the statement of claim filed in the High Court of Singapore did not contain a submission to the jurisdiction of Singapore or its Courts in respect to the claims made in the Statement of Claim and were not a submission to jurisdiction for the purposes of section (3)(a)(iii) of the Foreign Judgments Act.
v. Further no amended Statement of Claim relied upon by the plaintiff was ever served upon the Defendant.
vi. No evidence leading to a judgment of USD66243572.84 was served upon the defendant and
vii. In the premises the defendant did not have an opportunity to defend the proceedings as required by section [7(2)(a)(v)] of the Foreign Judgments Act 1991.
viii. The jurisdiction of the High Court of Singapore for the purpose of determining its jurisdiction is to be determined in accordance with the laws of Australia
(b) Pursuant to section 7(2)(b) of the Foreign Judgments Act 1991 the Courts of Myanmar had prior to the judgment of the High Court of Singapore given a final and conclusive judgment in respect of the matters in dispute.
(c) The registration of the judgment was an abuse of the process of this Court because:
i the Courts of Myanmar had or were still in the process of determining claims the subject of the same dispute and the same subject matter sought to be litigated in Singapore, and
ii the previous choice of forum by the Plaintiff was Myanmar which at its election and as a fact was the appropriate or more appropriate forum and the Plaintiff has engaged in forum shopping contrary to the public policy of this Court.
(d) The judgments were obtained by fraud in the High Court of Singapore by the false evidence of Michael Shang [sic] Tek Chai that
a. monies had been advanced to the Defendant or to TCC in the sum of USD8,185,143.67 which had not been paid to the defendant or to TCC. The alleged debenture funds were never delivered and no other funds were received by the defendant from the plaintiff.
b. the joint venture continued notwithstanding the failure to advance or provide the monies contemplated by the joint venture agreement, the debenture and the loan agreement.”

50. As already explained, I propose to address those grounds in the order in which they were addressed by First Property and by reference to the relevant ground of s 7 invoked.

Jurisdiction ground

51. Section 7(2)(a)(iv) of the Foreign Judgments Act provides that the court must set the registration of the judgment aside if it is satisfied that the courts of the country of the original court had no jurisdiction in the circumstances of the case.
52. Mr Nyunt invokes that ground in ground (a) of the notice of motion. While the opening words of that paragraph represent that the reasons relied upon to support the jurisdiction ground are specified in points (i) to (viii), upon analysis points (v), (vi) and (vii) are directed to a different ground (the notice ground, addressed below) while point (viii) merely asserts a legal proposition without identifying any separate argument. Point (ii) (that the subject matter of the judgment other than the claim for monies lent was immovable property located in Myanmar) was abandoned during the hearing. Accordingly, the discussion that follows addresses points (i), (iii) and (iv) of ground (a) in the notice of motion.
53. It is common ground that Mr Nyunt did not voluntarily submit to the jurisdiction of the High Court of Singapore after being served with the writ and the statement of claim in Australia. The central issue raised by ground (a) is whether he had agreed to submit to the jurisdiction of that court at an earlier point in time so as to bring the matter within the terms of s 7(3)(a)(iii) of the Foreign Judgments Act. That section provides that, for the purposes of s 7(2)(a)(iv) and subject to s 7(4), the courts of the country of the original court are taken to have had jurisdiction:

“if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court...”

54. First Property submits that Mr Nyunt had agreed in the required sense by virtue of the jurisdiction clauses contained in the joint venture agreement, the debenture and the loan agreement. The principal contest between the parties in respect of the jurisdiction ground was the proper construction of those clauses and whether the subject matter of the Singapore proceedings fell within them.
55. Mr Nyunt was not a party to the debenture. It was executed by him purportedly in his capacity as a director of Town and City but at a time when that company did not yet exist. To the extent that it is relied upon directly as an agreement by Mr Nyunt to submit to the jurisdiction of the Singapore courts (rather than simply for context), I think the clause in the debenture must be put to one side. The question is whether the relevant clauses in the joint venture agreement and the loan agreement record Mr Nyunt’s agreement, in respect of the subject matter of the proceedings, to submit to the jurisdiction of the Singapore court.
56. It was indicated in submissions that there was a divergence between the parties as to whether the question of “had agreed” is to be determined in accordance with the law of this jurisdiction or of the foreign jurisdiction, but it is doubtful whether the resolution of that dispute makes any difference, as explained below.
57. Ground (a)(viii) in the notice of motion asserts “the jurisdiction of the High Court of Singapore for the purpose of determining its jurisdiction is to be determined in accordance with the laws of Australia”. Similarly, Mr Nyunt’s written submissions stated that the question whether there had been valid service and submission to the jurisdiction is to be determined in accordance with Australian law “based upon what is commonly described as the ‘international jurisdiction’”. The authority cited for that proposition was Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd (2014) 85 NSWLR 404; [2014] NSWCA 3. No point reference was provided but it was presumably intended to refer to the judgment at [53] where the Court said (per Bathurst CJ; Gleeson JA and Sackville AJA agreeing at [149] and [150]):

“The appellants do not dispute that the question of whether the foreign court has jurisdiction over a person will be determined by the common law rules of this country. They were correct in not doing so. The question in the present case is whether Mr Gibbs voluntarily submitted to the jurisdiction of the Court.” (citations omitted)

58. First Property accepted that proposition (closing written submissions par 88) but submitted that the question whether or not a dispute or claim falls within the scope of a jurisdiction clause or jurisdiction agreement is a question for the proper law of the contract or the proper law of the jurisdiction agreement, which (under the relevant agreements here) is Singapore. That appears to be the proposition that was disputed by Mr Nyunt (closing submissions par 25). However, it was not made clear that there was any relevant difference between Australian law and the law of Singapore concerning the interpretation of those clauses: cf Global Partners Fund Ltd v Babcock and Brown Ltd [2010] NSWCA 196 at [51]; [2010] NSWCA 196; 79 ASCR 383. First Property called expert evidence as to the proper construction of the clauses according to the law of Singapore. The effect of that evidence is considered below. But the burden of First Property’s submissions (as I understood them) was that, according to the law of either country, the construction would be the same (closing written submissions pars 95-98).
59. The parties addressed the jurisdiction ground in respect of the claim in debt and the claim for breach of fiduciary duty separately. As to the claim in debt, which was based on the 1998 loan agreement, it was not suggested by Mr Nyunt that such a claim would not fall within the scope of the jurisdiction clause in that agreement. Plainly, it would. For convenience, the relevant clause is repeated here:

“This Loan shall be construed in accordance with and be governed by the laws of Singapore in effect at the date of execution of this Agreement. For the purposes hereunder, the Borrower and the Lender hereby submit to the non-exclusive jurisdiction of the Singapore courts.”

60. As it was expressed in ground (a)(iii)(b) of the notice of motion, the objection to jurisdiction in respect of the claim in debt appeared to be founded on a pleading point. That ground noted that, with respect to that claim, the sum claimed was “not advanced to [Mr Nyunt] on the plaintiff’s case originally pleaded in the High Court of Singapore”. It was further noted in that ground that the judgment was entered before the statement of claim was amended and that the amendment was not served on Mr Nyunt (that is disputed by First Property).
61. First Property addressed this ground on that understanding, that is, as raising a pleading point (closing submissions pars 113-118). It was there accepted that the original pleading alleged that First Property agreed to extend a loan of USD 850,000 “to TCC” (Town and City) without distinguishing between the joint venture agreement and the loan agreement. However, the pleading also asserted that the amount of USD 585,143. 67 was drawn down by Mr Nyunt “in respect of” that agreement. Importantly, the relief sought included a claim against Mr Nyunt for that sum “in respect of [his] breach of the loan agreement”. In my view, the import of the pleading was clear. More importantly, the matter or claim in respect of which the Singapore court exercised jurisdiction was reflected in the relief sought. I do not think there is any merit in this ground insofar as it rests on the pleading point.
62. In his submissions in this Court, Mr Nyunt put this point slightly differently. He submitted that the loan agreement had no operation because no funds were in fact advanced under that agreement. It was submitted that the term “the Borrower” in clause 7.6 should be construed not merely as a definition but as being descriptive of the capacity in which the loan agreement, including the jurisdiction clause, was to operate. If Mr Nyunt had borrowed no funds, he could not be “the Borrower” within the meaning of that clause, so the argument went.
63. Mr Nyunt submitted that the evidence adduced in this Court and in the proceedings in Singapore does not establish on the balance of probabilities that any monies were advanced under the 1998 loan agreement and further that the condition precedent to its operation (consent from the Central Bank of Myanmar) was not satisfied.
64. There are a number of difficulties with that submission. One is conceptual; the submission invites this Court to go behind the default judgment (that is, to question whether the debt reflected in the judgment is in fact owed) for the purpose of determining whether the matter was within the Singapore court’s jurisdiction, in which event it is a judgment this Court should not go behind.
65. But even assuming that is a task sometimes required under the Act, I do not accept Mr Nyunt’s argument. In my view, clause 7.6 of the loan agreement contains a clear and unconditional agreement by Mr Nyunt to submit to the (non-exclusive) jurisdiction of the Singapore courts. There is no warrant for reading it in the manner suggested on behalf of Mr Nyunt. By the same reasoning, Mr Nyunt would not be a borrower if he acknowledged that the loan was drawn down but claimed to have repaid it in total. I do not think the loan agreement is to be construed so as to render the efficacy of clause 7.6 dependent upon Mr Nyunt’s status as a borrower or otherwise. He is defined as “the Borrower” and agreed to clause 7.6 in terms.
66. As to the claim for breach of fiduciary duty, ground (a)(iii)(a) asserts that the Singapore court had no jurisdiction because:

“[the claims were] with respect to breach of fiduciary duties or trust and were not contractual in nature and the claims proceeded with allegedly arose under a debenture agreement to which the defendant was not a party and had not submitted to the jurisdiction of Singapore”.

67. First Property noted that there is a measure of tension in the characterisation of the claims as non-contractual and Mr Nyunt’s reliance upon the fact that they arose under an agreement to which he was not a party. The articulation of this ground is confusing in that respect. I apprehend what was intended was two separate points: first, that the claim was not for breach of contract (so that the jurisdiction clauses governing the contracts were of no avail) and, separately, that to the extent that agreement to submit to jurisdiction was said to be found in the debenture, that was of no avail because Mr Nyunt was not a party to that instrument.
68. In any event, leaving aside the obscure formulation of the grounds stated in the notice of motion, the critical question is whether Mr Nyunt agreed to submit to the jurisdiction of the Singapore courts in respect of the subject matter of the fiduciary claim. I am satisfied that he did.
69. As submitted by First Property, in order to consider this issue, it is necessary to consider the precise nature of the claims made by First Property in the Singapore proceedings. The assessment of damages in respect of the fiduciary claim was expressly based on the matters pleaded at [36]-[39] of the statement of claim. In summary, those paragraphs pleaded the unexceptionable proposition that Mr Nyunt owed fiduciary duties to First Property in the management of Town and City’s investments including a duty to deal with the investment moneys advanced under the debenture and the loan agreement as trustee for the benefit of the joint venture and not to promote his own interests in conflict with those of the joint venture. It was pleaded in the alternative that such duties arose as an implied term of the joint venture agreement, the debenture and the loan agreement. It was alleged that Mr Nyunt breached those duties by transferring the Natmauk Lane properties to himself and his wife in 2000; by procuring the removal of First Property from the management of Tarmway Plaza in 2004 and by delaying and frustrating First Property’s attempts to seek redress for those breaches in litigation in Myanmar for many years thereafter.
70. Mr Nyunt’s contention that the claim was non-contractual is not entirely accurate. As just noted, the claim was pleaded in the alternative on the basis of an implied contractual term. The fact that Mr Nyunt was not a party to the debenture is not significant in this context; he had a personal obligation under the joint venture agreement to procure its execution in favour of First Property.
71. Acknowledging that the question of jurisdiction for the purpose of s 7(2)(a)(iv) is to be determined according to the law of Australia, First Property submitted that the governing law of a jurisdiction agreement is, like any other contractual provision, to be determined by the parties’ express choice, if they have made one. It was further submitted that, generally, the parties’ intention will be taken to be that it is to be governed by the law applicable to the contract of which it forms part.
72. First Property submitted that in the present case it is clear that each of the jurisdiction clauses is governed by the law of Singapore. That is clear from the terms of the two clauses set out above. It was submitted on that basis that the issue of their construction is to be determined by reference to the law of Singapore.
73. In order to prove the proper construction of the jurisdiction clauses according to the law of Singapore, First Property relied on the evidence of an expert witness, Mr Toh Kian Sing SC. Mr Toh acknowledged that Mr Nyunt was not a party to the debenture and so had not submitted to the jurisdiction of Singapore for any dispute arising from that instrument (CB 1618). He addressed the non-exclusive jurisdiction clauses in the joint venture agreement and the loan agreement by reference to his analysis of the pleading of the fiduciary claim. He concluded (CB 1621):

“It can fairly be inferred that the parties intended Singapore to be the one stop place of adjudication of all the disputes that emerge from the joint venture, including disputes of a fiduciary nature”.

74. There is no reason not to accept that evidence and I do.
75. In respect of the claim for breach of fiduciary duty, Mr Nyunt characterised the issue in the following way (closing written submissions par 14):

“In respect of the second claim with respect to the fiduciary obligations of the defendant the contention that there has been submission as the result of an agreement is based in the [amended statement of claim] upon the concurrent and apparently interdependent obligations arising from the [joint venture agreement], the debenture and the March 1998 loan agreement.”

76. It was submitted that the contention of submission to jurisdiction on the basis of such “interdependent obligations” was untenable because Mr Nyunt was not a party to the debenture; because the loan agreement post-dated the joint venture agreement and was expressed to be confidential; and because each of the joint venture agreement and the debenture was expressed to be an entire agreement.
77. As already indicated, I accept that the clause in the debenture agreement cannot amount to agreement by Mr Nyunt to submit to jurisdiction in respect of disputes under that instrument. The significant fact is that Mr Nyunt was required, under the joint venture agreement, to procure the execution of the debenture in favour of First Property. Further, I do not think the timing of the loan agreement is particularly significant in this context. The point made by Mr Toh is that the same clause appeared in all three agreements, which he considered was “not a coincidence” (CB 1621).
78. Mr Nyunt submitted that the claim described in the amended statement of claim is not an alleged breach of obligations under the joint venture agreement but breaches of a fiduciary relationship dependent upon not only the joint venture agreement but also the debenture and the 1998 loan agreement. I think that misconceives the way in which the case was pleaded. Although reference was made in the pleading to the loan agreement, the central foundation for the fiduciary claim was the parties’ participation in a joint venture on the terms recorded in the joint venture agreement, which included Mr Nyunt’s agreement to procure the issue of the debenture.
79. Mr Toh reached the same conclusion, saying that the fiduciary claim was “traceable ultimately” to the joint venture agreement (CB 1620). Whether this issue is determined according to Singapore law or the law of Australia, I agree.
80. Mr Nyunt relied upon the fact that the form of the proposed debenture annexed to the joint venture agreement contemplated that the debenture would be governed by the laws of Myanmar and that the proposed clause included submission to the jurisdiction of the courts of Myanmar. The debenture as executed included a change to that clause which, as already noted, provided for the debenture to be governed by the laws of Singapore and submission to the jurisdiction of the courts of Singapore.
81. It was submitted on behalf of First Property that the inclusion of the proposed Myanmar jurisdiction clause in the debenture was of no consequence because the debenture was not executed in that form. However, as submitted by Mr DeBuse on behalf of Mr Nyunt, the significance lies in the fact that, at the time the joint venture agreement was executed, the parties had in contemplation the execution of a debenture containing a Myanmar clause, militating against Mr Toh’s “one-stop shop” argument. There is some force in that point but I do not think it is determinative.
82. Ultimately, while the fiduciary claim necessarily had regard to the debenture as part of the structure of the arrangements between the parties, I do not think First Property’s reliance upon that collection of “concurrent and interdependent obligations” derogates from Mr Nyunt’s clear agreement in the joint venture agreement, and later in the loan agreement, to submit to international jurisdiction. The critical foundation for the duties alleged was his participation in the joint venture.
83. First Property submitted that clause 14 of the joint venture agreement is broad enough to capture its pleaded claim. I agree. As submitted by First Property, the clause does not in any way seek to confine the kind of claims the subject of the submission to jurisdiction to the contract alone. Mr Nyunt submitted that the submission to jurisdiction is made with respect to “this agreement”. However, I do not think that is how the clause is to be construed. For convenience, the clause is repeated here:

“This agreement shall be governed by and construed in all respects in accordance with the laws of Singapore and the parties hereto agree to submit to the non-exclusive jurisdiction of the Singapore courts.”

84. First Property submitted that the second part of that clause should be construed as a free-standing agreement, in accordance with the analysis of a similar clause by Sackar J in Telesto Investments Ltd v UBS AG [2013] NSWSC 503 at [278]; [2013] NSWSC 503; 94 ACSR 29. The judgment in Telesto provides, with respect, a helpful analysis of the proper approach to this issue. Justice Sackar said at [261]-[262]:

“One of the requirements for the recognition and enforcement of a foreign judgment is that the foreign court has exercised a jurisdiction that the forum will recognise. The competence that the law of the forum recognises that a court in a foreign country can exercise if its judgment is to be recognised or enforced in the forum is often called “international jurisdiction”. The “international jurisdiction” is assessed by reference to the law of the forum, not by reference to the law of the foreign jurisdiction from which the judgment issued.
It is not controversial between the parties that, at least for the present case, the Australian authorities show that for such “international jurisdiction” to be established, the defendant must either have been personally served with the originating process while present in the foreign place (even if temporarily), or must have submitted to the foreign jurisdiction (either by express agreement or by conduct inconsistent with protest of jurisdiction) (citations omitted).

85. The clause under consideration in Telesto was in the following terms:

“19. Governing Law and Jurisdiction

19.1 In relation to any Account or Services, the Account Agreement and any Security Document shall be governed by and construed in accordance with the law of the country in which the relevant Account is booked and the Client irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of such country, unless otherwise specified. In the case of UBS e-banking Services and the use of unsecured email, the place of performance of all obligations by the Client and the Bank and the exclusive place of jurisdiction for any disputes arising out of and in connection with that Service shall be the jurisdiction in which the Account is booked. Notwithstanding this, the Bank shall have the right, but not the duty or obligation, to take legal action against the Client in the jurisdiction in which UBS e-banking Services is offered, in the Client’s place of residence or domicile or any other jurisdiction, subject always to the foregoing choice of law.”

86. Telesto argued, as was argued by Mr Nyunt in the present case, that the clause on its proper construction recorded Telesto’s submission to jurisdiction only in respect of matters concerning the construction of the instruments referred to in the first part of the clause. Justice Sackar rejected that argument, holding that the clause contained two provisions, a choice of law provision and a submission to jurisdiction provision: at [266]. His Honour considered that the latter should be given a wide construction: at [268].
87. Mr Nyunt submitted that the clause in the present case can be distinguished from “the kind of deliberately wide clauses in arbitration agreements considered in that case”. Justice Sackar turned his mind to that issue, taking the view that the principles concerning arbitration clauses were applicable by analogy: at [270]. The Court of Appeal took the same view in Global Partners Fund Ltd v Babcock and Brown Ltd, albeit in relation to an exclusive jurisdiction clause. The Court there expressed the view that “an exclusive jurisdiction clause should be interpreted in the same liberal manner as is authoritatively established with respect to arbitration clauses”: at [60] per Spigelman CJ; Giles and Tobias JJA agreeing at [101] and [102]. I acknowledge that different practical considerations apply in the case of an exclusive jurisdiction clause. However, Sackar J saw fit to take the same approach in respect of a non-exclusive clause in Telesto and, with respect, I see no reason not to adopt that same approach. The clause under consideration in Telesto was a non-exclusive jurisdiction clause and was similar in structure to the clause under consideration here.
88. In my view, clause 14 properly construed includes provision for Mr Nyunt’s agreement to submit (non-exclusively) to the jurisdiction of the courts of Singapore in respect of his dealings with First Property. Further, as already noted, the pleading did include an alternative claim based on implied terms of the joint venture agreement.
89. For those reasons, I am satisfied that, prior to the commencement of the proceedings in Singapore by First Property, Mr Nyunt had agreed to submit to the jurisdiction of that court in respect of the subject matter of the proceedings and accordingly that the High Court of Singapore is taken to have had jurisdiction in respect of the claims made in those proceedings.

Notice ground

90. Section 7(2)(a)(v) of the Foreign Judgments Act provides that the court must set the registration of the judgment aside if it is satisfied that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear.
91. In the notice of motion, Mr Nyunt seeks to bring himself within s 7(2)(a)(v) on two grounds. Neither is literally concerned with notice of the proceedings. Ground (a)(v) in the notice of motion complains that an amended statement of claim relied upon by First Property (filed well after the primary judgment was obtained) was not served on Mr Nyunt. Ground (a)(vi) complains that the evidence in support of the assessment of damages for the purpose of the assessment judgment was not served on Mr Nyunt.
92. As already noted, the writ and statement of claim were served personally on Mr Nyunt in Australia on 19 December 2015; he accepts that he had actual notice of the proceedings from that time; he accepts that he understood that it was claimed that First Property had advanced monies under the joint venture agreement and he accepts that he read the endorsement indicating that if he did not satisfy the claim or enter an appearance within 21 days, First Property could proceed to enter judgment against him without further notice. As submitted by First Property, having notice of the proceedings, he could have filed an appearance, even if only to contest the jurisdiction of the Singapore court. Instead, he seems to have made a deliberate decision to contest that proposition in separate litigation in Myanmar (as explained below). I accept, as submitted by First Property, that those facts alone afford a sufficient basis to reject this ground. In my view, Mr Nyunt had notice of the proceedings within sufficient time to defend them.
93. In case that conclusion is wrong, it is appropriate to consider the arguments raised by Mr Nyunt under this ground. For that purpose, it is necessary to explain the course of the Singapore proceedings after the statement of claim was served.
94. On 11 January 2016, Mr Nyunt sent an email to First Property’s solicitors which included the following offer:

“May I take this opportunity to convey to your client that I certainly do not enjoy being involved in the long protracted litigation which your client started initially? As a gesture of goodwill, I propose to forgo all the benefits of judgment already handed down in my favour for the cost of defence in these cases, in exchange for and in recognition of your client and I withdrawing from all present and future court cases, and agreeing to a negotiated “ex gratia” settlement on “all-in” basis. (This offer is open for 30 days only.)”

95. On 14 January 2016, First Property replied as follows:

“WITHOUT PREJUDICE”
Dear Mr Nyunt
We refer to your email to us dated 11 January 2016.
We are taking our client’s instructions on the contents of your email and will respond to you in due course.
In the meantime, all our client’s rights are reserved.
Best regards”

96. First Property applied for default judgment and obtained the primary judgment that same day. Mr Toh was cross-examined as to whether it would be contrary to the normal conduct of litigation to write in such terms but at the same time enter default judgment. He said there was “nothing objectionable about this” (T114-115).
97. On 3 February 2016, the solicitors for First Property informed Mr Nyunt by email of the fact that default judgment had been entered. On 17 March 2016, the solicitors again contacted Mr Nyunt and informed him (again) of the entry of default judgment, of orders made at a pre-trial conference on 3 March 2016 and of the next listing of the proceedings for a further pre-trial conference.
98. The orders of 3 March 2016 required the parties to file and serve lists of documents (with affidavits verifying such lists) by 24 March 2016. On 24 March 2016, the solicitors sent Mr Nyunt copies of their list of documents and an affidavit of Mr Chang sworn 24 March 2016 in accordance with that direction. The pre-trial directions also provided:

“The affidavits of evidence-in-chief of all witnesses to be filed and exchanged by 14 April 2016.”

99. First Property did not serve its affidavits on Mr Nyunt. Mr Nyunt did not serve any evidence and did not request a copy of the evidence on which First Property Holdings intended to rely. First Property relies on the fact that the requirement was only to exchange evidence; it contends that there was no requirement to serve evidence in circumstances where Mr Nyunt was not participating in the proceedings. Mr Toh’s evidence supported that approach. He further noted that, if there was an irregularity, that could be relied upon by Mr Nyunt to have the default judgment set aside (this opinion is not contradicted by the authorities considered at [114] below, which address a different point).
100. On 1 June 2016, the solicitors again emailed Mr Nyunt informing him that the hearing had been fixed for the assessment of the unliquidated part of its claim.
101. On 30 August 2016, First Property filed a summons seeking leave to file an amended statement of claim. The summons and proposed amended pleading were sent to Mr Nyunt by email on 2 September 2016. Leave was granted to file the amended statement of claim on 6 September 2016 and it was filed the following day. On 11 October 2016, Mr Nyunt was sent copies of the order granting leave to amend and the amended statement of claim itself.
102. On 24 October 2016, Mr Nyunt emailed the solicitors requesting that further communications be sent to his address in Myanmar. As noted by First Property, the terms of that email suggest that he had been receiving emails up to that point.
103. As already noted, the hearing proceeded on 7 November 2016 and judgment was given that date.
104. For the reason already noted, the grounds raised in the notice of motion do not fall comfortably within the terms of s 7(2)(a)(v) of the Foreign Judgments Act, since neither ground is actually directed to the issue of notice of the proceedings. In his opening submissions, Mr Nyunt expanded the basis for those grounds, evidently relying on a combined reading of s 7(2)(a)(v) and 7(2)(a)(xi) of the Foreign Judgments Act. As already noted, s 7(2)(a)(v) provides that the court must set aside the judgment if the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings. Section 7(2)(a)(xi) provides that the court must set aside registration of the judgment if its enforcement would be contrary to public policy.
105. Mr Nyunt submitted that the failure to obey a procedural order and provide the evidence or identify the documents upon which the plaintiff relied in the Singapore proceedings “is an example of a procedural matter which offends against the expectation of fairness and natural justice of Australian law”.
106. The evidence relied upon by First Property in the present application reveals that the amended statement of claim and First Property’s list of documents were sent to Mr Nyunt by email. The question whether service would be accepted by email according to Singapore law was addressed in the expert evidence in the proceedings but I do not think it is necessary to have regard to that evidence in this context. The notion of “service” in circumstances where Mr Nyunt had chosen not to enter an appearance in the proceedings is beside the point. Mr Nyunt’s submissions on this issue tended to conflate a number of loosely defined concepts. The circumstance in s 7(2)(a)(v) which mandates setting aside the registration of a foreign judgment is where the judgment debtor did not receive notice of the proceedings in sufficient time. The section is not to be understood to import a requirement that, having been given notice of the proceedings, the judgment debtor be informed of every procedural step: Brockley Cabinet Co Ltd v Pears (1972) 20 FLR 333 at 337. The notion that enforcement of the foreign judgment would be contrary to public policy because, after the judgment debtor decided not to participate in the foreign proceedings, the judgment creditor failed to treat him as if he were participating in the proceedings is curious.
107. The ground based on s 7(2)(a)(v) was developed in different terms in Mr Nyunt’s closing submissions. Characterising the Singapore practice of which Mr Toh gave evidence as “surprisingly ruthless”, Mr Nyunt submitted that the question whether there was “sufficient notice” is a question to be determined by this Court. He submitted that the fact that the claim was served in accordance with the laws of the foreign jurisdiction is not determinative. So much is made clear by s 7(2)(a)(v), which requires the Court to be satisfied that the defendant did not receive notice of the proceedings in sufficient time to defend them, “whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court”; and see Barclays Bank Ltd v Piacun at 478.35.
108. However, the evidence in the present case (summarised above) establishes that Mr Nyunt did have actual notice of the proceedings and was aware of the time frame within which he needed to file an appearance in order to defend them.
109. In closing submissions, Mr Nyunt submitted that the Court should take into account “the apparent inducement to take no action created by the correspondence where the plaintiff by its solicitors is informing the defendant it is taking instructions as to the response and proposed resolution of proceedings but apparently without notice in those circumstances applying for judgment simultaneously without notice of that intention”.
110. The alleged inducement was said to be contained in the email dated 14 January 2016 from First Property’s solicitor to Mr Nyunt set out above.
111. Mr Nyunt did not give evidence to suggest that he was in fact induced to take no action by that correspondence. On the contrary, his evidence suggests that he made a deliberate choice not to defend the proceedings in Singapore. In his affidavit sworn 9 June 2017, he said at par 150 that he did not believe he was at risk by the Singapore litigation because of the failure of First Property’s claims in the Myanmar courts; because he had been advised by his lawyers in Myanmar that First Property’s claim in respect of Tarmway Plaza although not then formally dismissed was certain to fail and because the claim that he had borrowed USD 585,143.67 was “baseless”.
112. His affidavit continued at par 151:

“Nevertheless upon being served with the writ and the first statement of claim in December 2015 I sought legal advice from my lawyers in Myanmar and following advice that any judgment against me in Singapore could not be enforced in Myanmar the prudent course would be to seek a declaration that there was no financial settlement to be made by me in favour of [First Property].”

113. Mr Nyunt commenced proceedings in Myanmar against First Property seeking such a declaration. That application was dismissed on the grounds that the Court had no jurisdiction to hear the case. Mr Nyunt appealed against that decision. At the time of the hearing before me, he was awaiting the appellate court's decision.
114. Mr Nyunt relied in this context on decisions which establish that, if a defendant did not have sufficient notice to defend the proceeding, the existence of a later opportunity to have the judgment set aside in the foreign jurisdiction is irrelevant: see Barclays Bank v Piacun at 479.5; Bank Polska at [44].
115. The circumstances of the present case are different. It is accepted that Mr Nyunt had actual notice of the proceedings from 19 December 2015. I do not accept the inducement argument, for the reasons indicated above. I am satisfied that Mr Nyunt made a choice not to defend the Singapore proceedings, not on the strength of the contents of the response to his email dated 11 January 2016 but by reference to his own assessment and the advice of his lawyers.
116. Further, judgment was entered on the fiduciary claim (by default) on 14 January 2016. In my view, Mr Nyunt had notice of the proposed assessment in sufficient time to defend it but in any event, even if the assessment judgment were set aside, it would remain the case that there was judgment against Mr Nyunt (in the primary judgment) for damages to be assessed in respect of the claim pleaded at pars 36 to 39 of the amended statement of claim.
117. For those reasons, I am not satisfied that the registration of the judgment must be set aside under s 7(2)(a)(v) of the Foreign Judgments Act.

Fraud ground

118. Section 7(2)(a)(vi) of the Foreign Judgments Act provides that the court must set the registration of the judgment aside if it is satisfied that the judgment was obtained by fraud.
119. Mr Nyunt invokes that section in par (d) of the notice of motion. For convenience, the points raised are repeated here:

“The judgments were obtained by fraud in the High Court of Singapore by the false evidence of [Mr Chang] that:
a. monies had been advanced to the Defendant or to TCC in the sum of USD8,185,143.67 which had not been paid to the defendant or to TCC. The alleged debenture funds were never delivered and no other funds were received by the defendant from the plaintiff.
b. the joint venture continued notwithstanding the failure to advance or provide the monies contemplated by the joint venture agreement, the debenture and the loan agreement.”

120. First Property submitted that Mr Nyunt must be kept to that case. As already noted, on 7 March 2017, Mr Nyunt was directed by Campbell J to provide full particulars of the evidence relied upon in support of the notice of motion. In response to that direction, he served his affidavit sworn on 17 March 2017 referred to above. In that affidavit, the fraud claim was articulated in essentially the same terms as in paragraph (d) of the notice of motion (par 37 of the affidavit); the allegation is that Mr Chang’s evidence was fraudulent because it was the fact that no funds were advanced by First Property to Town and City or Mr Nyunt at all. As submitted by First Property, that allegation (made in the notice of motion and Mr Nyunt’s first two affidavits) is inconsistent with the case put by Mr Nyunt in his affidavit sworn 19 September 2017 where he alleged that the funds received were his own monies and were merely being “repatriated” to Myanmar through accounts held in Singapore.
121. First Property submitted that the principles governing an application to set aside registration of a foreign judgment for fraud under s 7(2)(a)(vi) are essentially the same as those governing the setting aside of a domestic judgment for fraud at common law, citing the discussion in Quarter Enterprises at [122]-[126].
122. In Quarter Enterprises at [74], the Court noted the differing views of Rogers CJ Comm D in Keele v Findley (1990) 21 NSWLR 444 and Dunford J in Yoon v Song [2000] NSWSC 1147; 158 FLR 295. Chief Justice Bathurst said:

“The view of Rogers CJ Comm D in Keele v Findley supra was to the effect that to set aside a foreign judgment on the ground of fraud it was necessary to rely on evidence not reasonably discoverable at the time of the original hearing, this being the position which applies in respect of setting aside a domestic judgment on the ground of fraud. However, Dunford J in Yoon v Song supra followed the approach adopted in the United Kingdom that it was not necessary to show such fresh facts. The primary judge expressed a preference for the views of Rogers CJ Comm D, but concluded that on either ground fraud was not established.”

123. The Court of Appeal in Quarter Enterprises did not need to choose between those differing views but stated that there are “powerful reasons” for preferring the approach in Keele v Findley: at [136]-[137].
124. First Property submitted that this Court must accordingly adopt the approach in Keele v Findley. It was submitted that Mr Nyunt’s fraud ground is not based on newly discovered facts or evidence not reasonably discoverable at the time of the original hearing because Mr Nyunt was aware, when he received the statement of claim, that First Property was alleging it had advanced the monies identified to Town and City under the joint venture. There is much force in that submission. Further, as submitted by First Property, the Court of Appeal’s endorsement of the Keele v Findley approach is consistent with the principle that this Court should not become embroiled in a review of the merits of the foreign decision. On that basis alone, I consider that the fraud ground should be rejected.
125. However, in case that is wrong, it is appropriate to consider the other arguments raised.
126. The consideration of this ground was complicated by the lack of clarity in the case as brought forward and the abandonment of part of the ground. In Mr Nyunt’s opening submissions, it was noted that he denies that monies were advanced to Town and City or him pursuant to either the debenture or the loan agreement. However, he submitted that, although that is his case, it is not necessary for him to establish that he did not receive monies or that they were his monies. Rather, the fraud ground was said to be based on the proposition that, whatever the source of the monies, the payments were not made as alleged in the court in Singapore when judgment was obtained. On that basis, it was submitted that: “the plaintiff having obtained judgment by advancing a set of facts which it now has to accept do not accord with its claim cannot retry the litigation here in an attempt to uphold the judgment obtained elsewhere”.
127. The submission misconceives the task for Mr Nyunt on the present application. It is of course not for First Property to “retry the litigation here” but for Mr Nyunt to satisfy the court that the judgment was obtained by fraud.
128. In his closing submissions, Mr Nyunt accepted that fraud could not be established in respect of the source of the USD 7.6 million said to have been advanced under the debenture but maintained his claim to set aside the primary judgment for the liquidated sum on that basis.
129. The effect of that concession was to abandon the substance of the ground advanced in the notice of motion, which accused Mr Chang of giving false evidence that monies had been advanced to Mr Nyunt or to Town and City in the sum of USD 8,185,143.67. The falsity was said to lie in the fact that the debenture funds were never delivered and no other funds were received by Mr Nyunt from First Property. Mr Chang was also accused of having given false evidence that the joint venture continued notwithstanding the failure to advance or provide the monies contemplated by the joint venture agreement, the debenture and the loan agreement.
130. The argument (as qualified by the concession in closing submissions) was based on Mr Chang’s affidavit sworn 1 July 2015 which it was alleged was made with reckless indifference to its truth. First Property submitted the judgment could not be said to have been obtained by fraud on that basis because the affidavit was only relied upon for the purposes of the application for leave to serve the writ outside of jurisdiction. However, service of the writ on Mr Nyunt was a necessary premise of obtaining default judgment and accordingly I do not think the affidavit may be disregarded on that technical basis.
131. The affidavit said at par 3:

“On 3 March 1990, the [First Property] further entered into a loan agreement with [Mr Nyunt] by which [First Property] agreed to extend a maximum loan of USD 850,000 to TCC, which monies were to be used for the purposes of TCC's property projects and investments, and for the benefit of the joint venture.”

132. A copy of the loan agreement was annexed.
133. Paragraph 4 of the affidavit stated that, in total, First Property contributed an aggregate sum of about USD 8,185,143.67 being the sum of USD 7,600,000 extended under the debenture to Town and City plus a sum of USD 585,143.67 drawn down under the loan agreement towards the joint-venture.
134. For the purpose of establishing that the affidavit was sworn with reckless indifference to its truth, Mr Nyunt relied on his own affidavit denying that there were any drawdowns made under the loan agreement at any time. That evidence is significantly undermined by the concession.
135. Mr Nyunt also relied on the following matters:

“(a) no such amount referable to such a loan appears in any of the audited accounts of the plaintiff;

(b) the attribution of the monies to the March loan agreement came about apparently as the result of a simple deduction of the amount specified under the debenture and the amount alleged to have been advanced to Town and City and not any identified process of consideration;

(c) the claim was based upon a view of Mr Chang that the monies advanced by the plaintiff were borrowed by the defendant including any monies in the debenture or in excess of it.”

136. After much agitation in cross-examination and submissions of point (a) concerning the audited accounts, it appeared to be put to bed by an explanation of the accounts.
137. As to points (b) and (c), the evidence in these proceedings included evidence of 66 payments referred to in Ms Lim’s affidavit alleged to make up the monies paid to the plaintiff. Mr Nyunt asserts that a number were not requested by him at all and that they were not paid pursuant to any loan agreement but were simply claimed by First Property as a “cost overrun” paid by the plaintiff to Town and City “for which for some reason it holds the defendant responsible”. Mr Nyunt submitted that the true facts concerning those payments could not have been known by him at the time the primary judgment was entered. I do not accept that submission. The way in which the sum was calculated existed and was discoverable at that time; had an appearance been entered in the proceedings, First Property could have been compelled to provide those particulars.
138. Mr Nyunt submitted alternatively that it is open to this Court to consider that evidence, even if it was discoverable at the time of the proceedings in Singapore, adopting the approach in Abouloff v Oppenheimer (1882) 10 QBD 295 followed in Yoon v Song. As already explained, in light of the discussion of that issue by the Court of Appeal in Quarter Enterprises, the appropriate course for me sitting as a puisne judge is to reject that submission. But even adopting the approach approved in Yoon v Song, I am not satisfied that the allegation of fraud is made out.
139. The sum claimed in respect of the loan in the primary judgment is precisely the sum of the 66 payments addressed in the evidence of Ms Lim. I accept, as established in the cross-examination of Ms Lim and Mr Chang by Mr DeBuse, that the approach appears to have been to charge a number of payments made to various entities to Mr Nyunt’s loan account but it is not clearly established that that was not the course contemplated by the dealings between the parties.
140. Mr Nyunt submitted that the claim appeared to have been calculated based on a decision to claim the monies from him regardless of his liability. It was contended that Mr Chang had conceded that in his evidence at Tcpt, 5 October 2017, p 223(1) as follows:

“Q: You didn't have any real or proper regard to whether or not he had any legal liability in respect of any amount of money above the $7.6 million referred to in the convertible performance debenture, is that correct?
A: Yes.”

141. It is unclear to me whether Mr Chang intended by that answer to accept or reject the proposition put in the question.
142. In any event, as submitted by Mr Colquhoun, this issue is ultimately a question of the proper characterisation of the payments. The evidence in these proceedings did not persuade me that the evidence given by Mr Chang in support of the application for leave to serve outside jurisdiction was false, let alone deliberately or recklessly so. It reflected the case put against Mr Nyunt based on the arrangements as First Property contends them to be.
143. In light of that conclusion it is not necessary to address the additional points made by First Property at pars 151-153 of its closing submissions.

Abuse of process (public policy) ground

144. As noted at the outset of this judgment, the proceedings in Singapore were commenced after many years of litigation between First Property and Mr Nyunt in Myanmar.
145. The notice of motion specified two grounds in respect of that litigation, being grounds (b) and (c) as follows:

“(b) Pursuant to section 7(2)(b) of the Foreign Judgments Act 1991 the Courts of Myanmar had prior to the judgment of the High Court of Singapore given a final and conclusive judgment in respect of the matters in dispute.
(c) The registration of the judgment was an abuse of the process of this Court because:

(i) the Courts of Myanmar had or were still in the process of determining claims the subject of the same dispute and the same subject matter sought to be litigated in Singapore, and
(ii) the previous choice of forum by the Plaintiff was Myanmar which at its election and as a fact was the appropriate or more appropriate forum and the Plaintiff has engaged in forum shopping contrary to the public policy of this Court.”

146. Although not identified in the notice of motion, the submissions indicate that ground (c) alleging abuse of process was intended to invoke s 7(2)(a)(xi) of the Foreign Judgments Act, which provides that the court must set the registration of the judgment aside if it is satisfied that the enforcement of the judgment would be contrary to public policy.
147. First Property submitted that, given that the section was not specified in the notice of motion despite an order of Campbell J (also made on 7 March 2017) requiring Mr Nyunt to do so, he should not be permitted to rely on it now. The shifting grounds in this case have certainly been a frustration. However, a more prudent approach is to determine the ground, now that it is raised, on its merits.
148. Unfortunately, the treatment of grounds (b) and (c) was not consistent in the submissions made in support of them. In his opening written submissions, Mr Nyunt addressed “res judicata, Anshun estoppel and abuse of process (public policy)” purportedly invoking ss 7(2)(b) and 7(2)(a)(xi) of the Foreign Judgments Act.
149. The approach of addressing two separate grounds under the statute within the same section of the submissions made for confusing reading. Paragraph 41 of the written submissions simply restated section 7(2)(b). Paragraph 42 of the written submissions stated that the principles relating to abuse of process in relation to proceedings between multiple jurisdictions have been considered in Telesto and also Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5; 341 ALR 415 (with no point references provided).
150. In his closing written submissions, Mr Nyunt addressed public policy and abuse of process as a separate topic evidently invoking s 7(2)(a)(xi) alone. This section of the judgment addresses that ground, including the opening written submissions on this point. The ground under s 7(2)(b) (final and conclusive judgment) is addressed separately below.
151. One further preliminary point is to observe that it is by no means clear that the ground under s 7(2)(a)(xi) was intended to address abuse of process, at least in the sense argued here. The complaint is that the proceedings in Singapore were an abuse of process because the courts of Myanmar were seized of the same dispute and the same subject matter and because First Property had chosen Myanmar as the appropriate forum. Mr Nyunt’s case thus invites this Court to embark upon a lengthy analysis of competing proceedings in two foreign countries with a view to determining whether one of those proceedings falls within our domestic notion of abuse of process. It is important to be clear as to the “process” which it is alleged is being abused. Mr Nyunt’s submissions proceeded on the untested assumption that the enforcement by this Court of a foreign judgment would be contrary to Australia’s public policy if the foreign judgment was an abuse of the process of the foreign country. No authority was cited for that proposition and it is by no means self-evident. A further untested assumption was that the foreign country would share our domestic notion as to what constitutes an abuse of process.
152. First Property submitted that ground 7(2)(a)(xi) is intended to operate “within the same field as the concept of public policy at common law”. It was noted that the authors of Nygh’s Conflict of Laws in Australia (9th ed, 2014, LexisNexis Butterworths) note at [40.79] that the trend of authority supports the proposition that the public policy ground for refusal of enforcement should be narrowly confined. First Property’s closing submissions addressed a number of authorities establishing the proposition that s 7(2)(a)(xi) is concerned with cases of moral and ethical policy, fairness of procedure or illegality of a fundamental nature. Mr Nyunt’s submissions concerning abuse of process did not engage with that proposition.
153. I have concluded that there is much force in First Property’s preliminary objection to this ground. In my view, Mr Nyunt’s abuse of process argument misconceives the scope of that ground and might have been dismissed on that basis alone.
154. In case that is wrong, it is appropriate to address the parties substantive submissions on the assumption (the correctness of which I doubt) that s 7(2)(a)(xi) contemplates the setting aside of registration of a foreign judgment on the “public policy” basis that the proceeding in the foreign court offends Australian notions of abuse of process of the kind alleged by Mr Nyunt in ground (c). The decision of Sackar J in Telesto at [248]-[258] contains, with respect, a helpful and comprehensive summary of the principles relating to abuse of process. There is no need to repeat those principles in full. Of note in the present context is his Honour’s reference to the remarks of French J in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [66] that “the doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined”.
155. As I understood the way in which this aspect of the case was put, Mr Nyunt would invoke the second category described in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [15], namely, the use of the court’s procedures in a way that is unjustifiably oppressive to one of the parties. The argument may also have intended to invoke the third category, namely, that the use of the court’s procedures would bring the administration of justice into disrepute because it would permit First Property to relitigate a dispute already determined.
156. Mr Nyunt also relied on the decision of Jessup J in Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491; [2006] FCA 979 (again, no point reference was provided but the quote set out in the submissions is at [41] of the judgment). That was a case involving proceedings within Australia (as between proceedings in the Supreme Court of Victoria and multiple proceedings in the Federal Court). The degree of duplication in such a case is more readily judged. In any event, in the passage relied upon by Mr Nyunt, Jessup J referred to (but ultimately distinguished) the principle applied in Moore v Inglis (1976) 9 ALR 509 (also a case involving duplication of proceedings within Australia). In Moore v Inglis (as described by Jessup J at [37]), the plaintiff had commenced proceedings in the Australian Capital Territory alleging conspiracy and seeking damages. While those proceedings were pending, she had commenced separate proceedings in the original jurisdiction of the High Court seeking declarations and injunctions (but not damages) alleging essentially the same conspiracy or series of conspiracies. The parties in the two actions were different. Justice Mason granted the defendants a perpetual stay on the basis that it was prima facie vexatious to sue concurrently in different courts for the same thing.
157. In the passage at [41] relied upon by Mr Nyunt, Jessup J said:

“The important, perhaps critical, point was that the court in which the earlier proceeding was commenced had jurisdiction to deal with everything raised in the later proceeding and there was no reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceeding rather than seeking to amend the earlier.”

158. Those remarks rather highlight the difficulty for Mr Nyunt in the present argument. His application invites this Court to compare the jurisdiction of the courts in two foreign countries.
159. Before turning to the parties’ submissions as to the application of those principles, it is necessary to set out the detail of the litigation in Myanmar. As has already been noted, in around October 2000, Town and City transferred the Natmauk Lane properties to Mr Nyunt and his wife without the knowledge or consent of First Property. That marked the beginning of the breakdown in the relationship between the parties. First Property first became aware of the transfer in 2002.
160. First Property noted in passing that, in the correspondence that followed, Mr Nyunt did not deny that monies had been advanced by First Property. For example, in his first response to a letter of demand from First Property dated 10 October 2002, Mr Nyunt wrote that, with respect to the debentures, “substantial amounts are still due to [Town and City] by [First Property]”. In a further letter dated 28 November 2002 concerning the venture, Mr Nyunt asserted that, under Myanmar laws, the charge on uncalled capital under the debenture was void and, further, that Town and City’s obligation “to repay the money under the void [debenture] has become statute-barred”. That letter offered, “on without prejudice and ex gratia basis”, to issue a new debenture valid under the laws of Myanmar to cover various amounts (interestingly, including a USD 850,000 loan).
161. On 14 February 2003, First Property filed an application under ss 282 and 282A of the Burma Companies Act 1914 (Myanmar) and s 114 of the Penal Code 1861 (Myanmar) against Mr Nyunt and another person. Mr Nyunt contends that those proceedings sought proprietary relief. There was no evidence to support that contention. It appears to have been based on the language of the section, which allows relief of that kind to be sought in civil proceedings. However, it is clear enough that the proceedings commenced by First Property were in the nature of a private criminal prosecution. That was the effect of the evidence of Dr Min Thein, an expert on the law of Myanmar and a former judicial officer of the Supreme Court in the Republic of the Union of Myanmar, which I accept. In criminal proceedings, the available penalty would not include relief of the kind sought in any of the subsequent civil proceedings. Mr Nyunt was acquitted of those allegations at first instance and following an appeal. However, the significant consideration is that the proceedings were criminal in nature and had no overlap with the relief sought against Mr Nyunt in any civil action. In my view, the proceedings under the Burma Companies Act can be put to one side in the consideration of the abuse of process argument.
162. On 2 May 2003, First Property filed an application in Myanmar seeking a declaration under s 53 of the Transfer of Property Act 1882 (Myanmar) that the registered deed of sale and purchase between Town and City and Mr Nyunt and his wife transferring the Natmauk Lane properties to them was void as against First Property (referred to by the parties as the Myanmar declaratory relief proceedings).
163. On 19 August 2004, First Property, together with Major Myo Thant, brought proceedings against Mr Nyunt under section 9 of the Specific Relief Act 1877 (Myanmar) seeking possession of the Tarmway Plaza Property (referred to by the parties as the Myanmar possession proceedings). The Myanmar possession proceedings also sought an interlocutory injunction against Mr Nyunt to prevent the transfer of units in the Tarmway Plaza Property. That relief was granted by the Yangon Division Court on 25 February 2005 (25 February 2005 Injunction).
164. According to the evidence of Dr Min Thein, which I accept, the Myanmar declaratory relief proceedings were dismissed on the application of Mr Nyunt “on the basis that [First Property], its authorized representative and its attorney had been absent from the proceedings since the session scheduled for the date of 22 October 2014”. The evidence explained the technical nature of that ruling, which turned on the requirements of Myanmar law as to the right of appearance of foreign entities. It was not a question of First Property having abandoned the case.
165. On 6 February 2015, First Property applied to reinstate the Myanmar declaratory relief proceedings. That application remained unresolved at the time of the hearing before me.
166. Mr Nyunt submitted that the Court should have regard to considerations of comity not only with the courts of Singapore but also those of Myanmar. I intend no disrespect to the courts of Myanmar in saying that that is not the concern of the legislation under which the present application is brought. The need to consider the interests of reciprocity in this context arises from the fact that the Republic of Singapore is a country to which the Foreign Judgments Act extends based on the satisfaction of the Governor-General that substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in Australian superior courts: see s 5(1) of that Act.
167. Mr Nyunt submitted that the Myanmar declaratory relief proceedings pleaded the same facts as in the Singapore proceedings and that “although the relief varied it was in subject matter the same claim.” It was further submitted that the Myanmar possession proceedings in respect of Tarmway Plaza pleaded the same facts as in the Singapore proceedings although again it was acknowledged that different relief was sought (in that case, possession rather than damages).
168. The critical consideration, in my view, is the acknowledgment that different relief was sought. None of the proceedings in Myanmar sought damages against Mr Nyunt for breach of fiduciary duty. Those proceedings were concerned with proprietary remedies in respect of property located in Myanmar.
169. In Telesto at [259], Sackar J held that a factor weighing heavily against a finding of abuse of process was the availability of alternative (statutory) remedies in the proceedings in New South Wales. His Honour considered that the juridical advantage available to Telesto in New South Wales due to the availability of those remedies was a fundamental aspect of its case and on that basis was persuaded that its decision to maintain the proceedings could not be described as an abuse of process.
170. There was no evidence in the proceedings before me as to whether First Property could have pursued the remedies pursued in Singapore in any of the proceedings in Myanmar. Since Mr Nyunt bears the onus of proof on this application, that is a significant impediment in the establishment of this ground.
171. Further, as submitted by First Property, Mr Nyunt could have raised the abuse of process point by entering an appearance in the proceedings in Singapore and seeking a stay of those proceedings on the very basis now argued. As already indicated, the decision not to defend those proceedings was deliberate. The Singapore court would have been better placed to judge this issue.
172. It was submitted in Mr Nyunt’s closing submissions that there are a number of factors which taken together amount to an abuse of process sufficient to warrant the Court refusing to enforce the foreign judgment on public policy grounds. The submissions listed 10 matters ranging well beyond the matters specified in respect of ground (c) in the notice of motion. The list collected many of Mr Nyunt’s arguments on other grounds and sought to rely on those matters in combination under the rubric of the public policy ground. I do not propose to address ground (c) on that expanded basis.
173. First Property submitted that it would frustrate the purposes of the Foreign Judgments Act and undermine the recognition of Singapore as a country to be afforded reciprocity under that Act if this Court were to embrace the notion of “public policy” contended for by Mr Nyunt. I agree. The argument invited the court to embark upon merits review of the processes and laws of the Singapore court and the Myanmar courts. I do not think that is what the Act intended.

Final and conclusive judgment ground

174. Section 7(2)(b) of the Foreign Judgments Act provides that the court may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had 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.
175. This ground may be disposed of shortly. Ground (d) in the notice of motion parrots the language of the section, contending that “the Courts of Myanmar had prior to the judgment of the High Court of Singapore given a final and conclusive judgment in respect of the matters in dispute”. First Property submitted that s 7(2)(b) is not intended to have a scope of operation beyond the scope of the doctrines of estoppel and res judicata at common law. Mr Nyunt did not appear to contend otherwise and that is the basis on which I have proceeded.
176. Mr Nyunt submitted that, in each proceeding in Myanmar, “the court has conclusively determined that First Property’s claim should be dismissed”. That, however, does not address the question posed by s 7(2)(b). First Property relied on the evidence given by its expert, Mr Thien, that the dismissal of the Myanmar declaratory relief proceedings was not “final and conclusive” in the relevant sense, noting proceedings pending in that Court to have the dismissal order set aside. Mr Nyunt noted that Dr Thien’s evidence in cross-examination accepted, however, that the judgments in Myanmar were final and conclusive unless appealed or set aside.
177. First Property’s written submission addressed this issue at considerably greater length than the brief argument put on behalf of Mr Nyunt. Without derogating from that careful discussion of the issue, I do not think it is necessary to go to the detail of the arguments put. As the above discussion of the Myanmar proceedings reveals, the “matter in dispute” in the proceedings in Singapore was not the same as the matters in dispute in any of the proceedings in Myanmar.

Application to reopen

178. On 12 January 2018, Mr Nyunt filed a notice of motion seeking leave to reopen the proceedings to present evidence of a decree and judgment in his favour handed down by the Yangon Eastern District Court of Myanmar on 25 October 2017 and to make further submissions on that judgment. The decision sought to be tendered determined the Myanmar possession proceedings in which First Property and Major (Retired) Myo Thant sought recovery of possession of the Tarmway Plaza property. The judgment dismissed the suit with costs.
179. After an extended exchange of correspondence as to whether Mr Nyunt’s translation of that judgment was accepted, I relisted the proceedings in an effort to resolve that dispute and to fix a timetable to prepare the motion for hearing. The first mutually available date for counsel for the hearing of the motion was 23 April 2018, some six months after the hearing of the primary proceedings. On 30 April 2018, I dismissed the application for the following reasons.
180. There was no dispute as to the principles to be applied on such an application. Ultimately, the question is whether the interests of justice require that leave be granted or refused.
181. Mr DeBuse, who appeared with Mr Chatterjee on this application, noted that, as the Court’s decision was reserved when the application was made, the primary consideration is whether the reopening would cause prejudice to First Property. That of course assumes a favourable assessment of the importance of the evidence. That is considered below.
182. As to prejudice, Mr DeBuse submitted that the judgment “is not one which causes embarrassment or prejudice” to First Property because it concerns litigation which First Property “sought and contested”. With respect, that misconceives the test; the question is whether it would cause prejudice to re-open the proceedings.
183. At the hearing of the application, Mr DeBuse indicated that, if leave to reopen were granted, he would then also seek leave to amend the primary notice of motion so as to add a ground that the enforcement of the Singapore judgments would be contrary to public policy on the grounds of illegality. The consideration of that ground, if allowed, would have required further hearing including a further round of expert evidence as to foreign law.
184. The parties were in dispute as to the translation of an important part of the October 2017 judgment. The judgment records that “issue 1” in the proceedings was whether First Property advanced USD 5.1 million of the total construction cost of USD 6.3 million to Town and City. Mr Nyunt contended that the judgment further records that this issue was “dismissed” on 19 January 2005. First Property’s position based on its translation is that issue 1 was excluded from being taken into consideration on that date (that is, that it was never determined).
185. In opposing the application, First Property relied on the affidavit of Alexandra Lamont sworn 11 April 2018 as to the steps that would need to be taken if leave to reopen the proceedings were granted. Ms Lamont’s evidence indicated that First Property would contend that the judgment in respect of which leave was sought did not include any finding in relation to whether funds were advanced by First Property to Mr Nyunt (issue 1). The resolution of that issue would have required First Property to call its lawyer in Myanmar, who would have had to give his evidence through a translator.
186. Mr Nyunt’s written submissions on this application revealed that to grant the relief sought would again have expanded the grounds relied upon by him considerably (some were not pressed in oral submissions at the hearing of the motion but the expansion remained large). More pertinently, the submissions revealed that the application was to lay the path for a further invitation to embark upon a review of the merits of the Singapore proceedings and the Myanmar proceedings.
187. First Property submitted that the application should be refused for three reasons. First, it was submitted that the October 2017 judgment could not provide any support for the contention that the registration of the Singapore judgments should be set aside under s 7(2)(a)(xi) and 7(2)(b) of the Foreign Judgments Act. In support of that submission, First Property repeated the submissions considered above as to the proper scope of the public policy ground under the Foreign Judgments Act. First Property submitted that the October 2017 judgment would not assist, for the same reasons. I agree. I have already stated my reasons for rejecting Mr Nyunt's argument that the proceedings in Myanmar afford a basis for setting aside the registration of the Singapore judgments on the grounds of public policy.
188. As to the proposed argument based on s 7(2)(b) of the Foreign Judgments Act, Mr Colquhoun noted that the October 2017 judgment could not be relied upon under that section because it operates only if the allegedly “final and conclusive judgment” was delivered before the judgment that has been registered. The Singapore judgments were registered before the October 2017 judgment.
189. The second reason First Property contended the application should be refused was that none of the multitude of other issues sought to be raised by Mr Nyunt on the strength of the October 2017 judgment properly arises under s 7 of the Foreign Judgments Act. In order to answer those points, First Property necessarily also engaged with the underlying merits to some extent. The fact that it was required to do so illustrates the vice of the approach taken by Mr Nyunt in these proceedings and its inconsistency with the objects of the Foreign Judgments Act.
190. If Mr Nyunt had been allowed to agitate the further points raised, it would have been necessary for this court to determine whether there was any conflict between the Myanmar judgment and the Singapore judgment. Ironically, Mr Nyunt submitted that it should not be the role of this court to resolve any such conflict; that was said to be a reason for setting the registration of the Singapore judgments aside on the grounds of public policy. For the reasons submitted by First Property in the substantive hearing which I have already discussed, that argument inverts the proper construction of the Act. It is because this court should not embark upon a consideration of the competing merits of the decisions of the two foreign countries that the public policy ground should be more narrowly construed. All of the arguments sought to be put in this court could have been put in Singapore, had Mr Nyunt not chosen to ignore those proceedings.
191. Finally, First Property opposed the application on the basis of the further waste of time and costs that would result. I considered that was a powerful factor against granting leave.

Conclusion

192. For the reasons set out above, Mr Nyunt’s notice of motion dated 17 March 2017 must be dismissed with costs.

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