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Barrett v Fulivai [2022] TOSC 8; CV 36 of 2022 (8 March 2022)

IN THE SUPREME COURT OF TONGA CIVIL JURISDICTION

NUKU'ALOFA REGISTRY

CV 36 of 2022

IN THE MATTER OF: the Reciprocal Enforcement of Judgment Act CAP 3.14 ("the Act") and the Reciprocal Enforcement of Judgement Rules CAP 3.14.02 ("the Rules")

AND: an application by CHRISTOPHER SEAN BARRETT ("Applicant"), pursuant to section 4 of the Act and rules 3 and 4 of the Rules, to register judgment CIV-2021-404-000278 [2021] NZHC 2569 issued by the High Court of New Zealand against David Fulivai and Helen Fulivai ("Judgment Debtors")

RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

To: Mrs D. Stephenson KC for the Applicant The Judgment Debtors

Date: 8 March 2022

1. By ex parte application filed on 4 March 2022, and supported by his affidavit sworn 21 December 2021, the Applicant seeks registration of a judgment in his favour obtained in the High Court of New Zealand on 30 September 2021 in the sum of NZD$253,370.60 which is equivalent to TOP$407,777 ("the judgment"), together with the costs of the application claimed in the sum of TOP$765.
2. Section 3 of the Act provides:

Application of this Part

(1) If the Cabinet is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to judgments given in the superior court of any country, substantial reciprocity of treatment will be assured as respects the enforcement within that country of judgments given in the Supreme Court of Tonga, it may by Order direct —

• (a) that this Part of this Act shall extend to that country; and
• (b) that such courts as are specified in the Order shall, for the purposes of this Part of this Act, be deemed superior courts of that country.

(2) Any judgments of a superior court of a country to which this Part of this Act extends, other than a judgment of such court given on appeal from the

court which is not a superior court, shall be judgments to which this Part of this Act applies, if —

(a) it is final and conclusive as between the parties thereto;
(b) there is payable thereunder a sum of money, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty; and
(c) it is given after the coming into operation of the Order directing that this Part of this Act shall extend to that country.
(3) For the purposes of this section a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.
(4) The Cabinet may by a subsequent Order vary or revoke any Order previously made under this section.

3. The principal provision within section 3 permits any judgments of a superior Court of a country listed in the Order to be registered in this Court, provided they satisfy the criteria set out therein.
4. Ground A of those relied upon by the Applicant asserts that the judgment is one of a superior court of New Zealand "as specified in the Reciprocal Enforcement of Judgments (Extension to Countries and States) Order” ("the Order").
5. Clause 2 of the Order specifies New Zealand as one of the countries to which Part II extends. However, only the Supreme Court and Court of Appeal of that country are specified as being deemed to be superior courts for the purposes of Part II of the Act.
6. The deeming provision is ss3(1)(b), by its terms, and having regard to its context and purpose, is not intended to be exhaustive or restrictive. It therefore does not preclude the possibility of another court, such as the High Court of New Zealand, being included within the class of superior courts.
7. Virtually from its first establishment in 1841, the High Court had conferred on it all the legal (or common law), equitable, and probate jurisdiction which the superior Courts had in England at that time: Ryder v Hall (1905) 27 NZLR 385 (SC and CA) at 411 and 424. The original jurisdiction of the High Court of New Zealand derives from the provisions of the Judicature Act 1908. That Act declared that the High Court is to have all the jurisdiction it had on the coming into operation of the Act, and all judicial jurisdiction which may be necessary to administer the laws of New Zealand. The jurisdiction thus conferred is general, extending to all causes of action, except where expressly excluded, and is unlimited in amount. The conferment on the High Court of all judicial jurisdiction necessary to administer the laws of New Zealand gives the Court inherent jurisdiction to enable it to act effectively in the administration of the law: Quality

Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 (CA). Inherent jurisdiction is possessed only by a superior Court of general jurisdiction. The High Court is a superior court of general jurisdiction: Nakhla v McCarthy [1978] 1 NZLR 291 (CA).¹

8. Accordingly, I am satisfied that the subject judgment of the High Court of New Zealand is a judgment to which Part II of the Act applies.
9. Section 4 of the Act provides:

4 Application for, and effect of, registration of foreign judgment

(1) A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the Supreme Court at any time within 6 years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the Supreme Court, and on any such application the said Court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered:

Provided that the judgment shall not be registered if at the date of the application —

(a) it has been wholly satisfied; or
(b) it could not be enforced by execution in the country of the original court.
(2) Subject to the provisions of this Act with respect to the setting aside or registration —

• (a) a registered judgment shall, for the purposes of execution, be of the same force and effect;
• (b) proceedings may be taken on a registered judgment;
• (c) the sum for which a judgment is registered shall carry the same interest; and
• (d) the Supreme Court shall have the same control over the execution of a registered judgment, as if the judgment had been a judgment originally given in the Supreme Court and entered on the date of registration:

Provided that execution shall not issue on the judgment so long as, under this Part of this Act and the rules of court made thereunder, it is competent for any party to make an application to have the registration of the judgment set aside, or, where such an application is made, until after the application has been finally determined.

(3) Where the sum payable under a judgment which is to be registered is expressed in a currency other than the currency of Tonga, the judgment shall be registered as if it were a judgment for such sum in the currency of Tonga

¹ The Laws of New Zealand, Courts, PART III High Court Jurisdiction, by the Right Honourable Sir Michael Hardie Boys, former Judge of the Court of Appeal, revised and updated for reissue by the editorial staff of The Laws of New Zealand and published by LexisNexis.

as, on the basis of the rate of exchange prevailing at the date of the judgment of the original court, is equivalent to the sum so payable.

(4) If, at the date of the application for registration the judgment of the original court has been partly satisfied, the judgments shall not be registered in respect of the whole sum payable under the judgment of the original court, but only in respect of the balance remaining payable at that date.
(5) If, on an application for the registration of a judgment, it appears to the Supreme Court that the judgment is in respect of different matters and that some, but not all, of the provisions of the judgment are such that if those provisions had been contained in separate judgments those judgments could properly have been registered, that judgment may be registered in respect of the provisions aforesaid but not in respect of any other provisions contained therein.
(6) In addition to the sum of money payable under the judgment of the original court, including any interest which by the law of the country of the original court becomes due under the judgment up to the time of registration, the judgment shall be registered for the reasonable costs of and incidental to registration, including the costs of obtaining a certified copy of the judgment from the original court.

10. Rule 4 of the Rules provides, relevantly:

4 Affidavits in support

(1) An application for registration must be supported by an affidavit —

• (a) exhibiting the judgment or a verified, certified or otherwise duly authenticated copy thereof and where the judgment is not in either the Tongan or English language, a translation of it into one or other of those languages authenticated by an affidavit sworn by the translator in which he shall state his name, address and qualifications to translate and that he has correctly translated the judgment to the best of his ability;
• (b) stating the name and the usual or last known address of the judgment creditor and judgment debtor and their address for service if different;
• (c) stating to the best of the information or belief of the deponent and giving the source of information or grounds for beliefs —
  • (i) that the applicant is entitled to enforce the judgment and whether the enforcement is as to the whole or part of the judgment and if a part, which part;
  • (ii) that the judgment could be enforced by execution in the country of the original court;
  • (iii) that the registration is not liable to be set aside under the provisions of section 6 of the Act;

(d) specifying the amount of interest if any which, under the law of the country of the original court has become due under the judgment up to the time of registration;
(e) stating where the sum payable under the judgment is expressed in a currency other than that of the Kingdom of Tonga, the equivalent in Tongan

currency at the rate of exchange prevailing on the date the judgment was entered or perfected in the country of origin;

(f) that all the rules and orders of the Court relating to the registration have been complied with.

11. Having considered the application and affidavit in support, I am satisfied that the Applicant has fulfilled the requirements of s 4 and rule 4 for registration of the judgment. I also consider the applicant's claim for the costs of the application to be reasonable.
12. Accordingly, pursuant to Part II of the Act and rule 5 of the Rules, IT IS ORDERED THAT:
    • (a) Judgment CIV-2021-404-000278 [2021] NZHC 2569 issued by the High Court of New Zealand in favour of Christopher Sean Barrett against David Fulivai and Helen Fulivai, in the sum of NZD$253,370.60, being equivalent to TOP$407,777 be registered in the register kept by the Registrar in the Central Registry of the Supreme Court.
    • (b) The Applicant has leave to obtain from the Central Registry a Certificate of registration of the judgment stating the matters specified in rule 5(2) of the Rules.
    • (c) The Judgment Debtors are to pay the Applicant’s costs of this application in the sum of TOP$765.
      

NUKU’ALOFA

8 March 2022

M. H. Whitten QC

LORD CHIEF JUSTICE