McCulloch v George [2013] NZHC 2561 (1 October 2013)

Last Updated: 21 October 2013

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2013-441-000355 [2013] NZHC 2561

In the matter of	The Reciprocal Enforcement of Judgments Act 1934
and in the matter of	a judgment of the Local Court of New South Wales
BETWEEN	HILTON LORNE McCULLOCH Applicant
AND	MICHAEL JOHN GEORGE First Respondent
AND	BERNADETTE MARY HARRIS Second Respondent

Hearing:	1 October 2013
Appearances:	H R Grayson for Applicant Respondents attending in person but not granted leave to appear
Judgment:	1 October 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to registration of judgment

_{pursuant to Reciprocal Enforcement of Judgments Act 1934]}

[1] The applicant, on 16 April 2008 obtained judgment against the respondents in the Local Court of New South Wales, General Division (“the judgment”). This is an application for an order that the judgment be registered under the Reciprocal Enforcement of Judgments Act 1934 (“the Act”).

[2] The respondents appeared in person at this morning’s hearing, having filed no opposition to this application. They explained that they take issue with the fact that the New South Wales judgment was obtained and they consider they may have

_{claims against the applicant. I explained to them that in the absence of any evidence}

McCULLOCH v GEORGE [2013] NZHC 2561 [1 October 2013]

to cast doubt on the validity of the judgment, the applicant was entitled to proceed today. I therefore did not grant the respondents leave to be heard. I explained to them that the order I would be making would have attached to it a condition setting a

30 day period for any setting aside application.

Application under s 4 of the Act

[3] The applicant invokes s 4 of the Act, which provides for application within six years after the date of the judgment, subject to proof of the prescribed matters and to the other provisions of the Act, for an order that the judgment be registered. The proviso to s 4(1) of the Act precludes registration if at the date of the application the judgment has been wholly satisfied or it could not be enforced in the country of the original Court.

[4] In support of the application, Hilton Lorne McCulloch (the applicant) has deposed that to the best of his information and belief that the judgment has not been satisfied and that at the date of the application the judgment was able to be enforced in Australia.

[5] The judgment in this case was expressed in Australian currency. The applicant has stated, pursuant to s 4(3) of the Act, that he wishes the judgment to be registered in the equivalent amount in New Zealand currency. Evidence has been provided pursuant to s 4(3)(b) as to the rate of exchange prevailing on the day of the application for registration. I am satisfied in relation to the orders which follow that the orders are for the New Zealand currency equivalent.

Proof of the prescribed matters

[6] By virtue of s 2 of the Act, proof of the “prescribed matters” means proof of

the matters prescribed by rules of Court, meaning in this case the High Court Rules.

[7] The directly applicable High Court Rules are contained in Part 23 of the

Rules.

[8] I turn to deal with proof of the matters there prescribed.

[9] Rule 23.4 – this application has been correctly made by originating application.

[10] Rule 23.6 – this application has been correctly filed in the Napier Registry, Napier being the residence or place of business of each respondent.

[11] Rule 23.7 – the application for registration has been supported by affidavit evidence.

[12] Rule 23.8 – a certified judgment of the Local Court of New South Wales has been produced. The copy of the judgment bears the seal of the Local Court of New South Wales and is therefore a matter for judicial notice.

[13] Rule 23.10 – the deponent has identified the rate of interest carried by the judgment by the law of New South Wales as applying pursuant to Regulation 36.7 of the Uniform Civil Procedure Rules 2005 (NSW) in accordance with s 101 of the Civil Procedure Act 2005 (NSW), and that the amount of interest which was due under the judgment up to the time of the application, expressed in New Zealand dollars, was $93,968.33.

[14] Rule 23.11 – in compliance with r 23.11(1) the deponent states to the best of their information and belief that –

(a) the applicant is entitled to enforce the judgment;

(b) at the date of the application, the judgment had not been satisfied;

(c) at the date of the application, the judgment was able to be enforced in

Australia;

(d) if the judgment were registered, the judgment would not be, or be liable to be, set aside under s 6 of the Act;

(e) the full names, and other prescribed details of the debtors, are set out in the affidavit.

(f) in compliance with the requirements of r 23.11(2), the source of information is stated. The grounds of belief are a combination of written information which has been obtained from the deponent’s solicitors who acted for him in obtaining judgment in the Local Court of New South Wales and from interest rates published by the Reserve Bank of Australia.

Discussion

[15] In these circumstances, I am satisfied that the applicant has proved the prescribed matters and is entitled to registration of the judgment.

[16] There will be the usual, related orders as to the period for any application to set aside the registration and as to prohibition of enforcement until after that period.

Orders

[17] I order:

(a) The judgment of the Local Court of New South Wales, Sydney Downing Centre, under case no. 2008/00323919, dated 16 April 2008, as between Hilton Lorne McCulloch (Plaintiff) on the one hand, and Michael John George and Bernadette Mary Harris (nee George) (Defendants), on the other hand shall be registered.

(b) Any application to set aside the registration shall be made within 30 working days from the date of service of notice of registration of the judgment.

(c) The judgment is not to be enforced until the expiration of the period referred to in paragraph 16(b) above.

Copy of orders

[18] I direct the Registrar to forward a copy of this Judgment to the respondents at their residential address.

Associate Judge Osborne

Solicitors:

Carter Kirkland Morrison Lawyers