AGO CATCHWORDS Bankruptcy - judgments obtained in Switzerland registered in Supreme Court of South Australia pursuant to Foreign Judgments Act 1971 (S.A.) - decision of Registrar of Federal Court refusing to issue bankruptcy notice except in respect of taxed costs of registration proceedings - application pursuant toa 5.14(5) Bankruptcy Act to review Registrar's decision - interpretation of 5.41(3)(c)(2). Bankruptcy Act, ss. 5, 14(5), 41(3)(c)(i) Foreiqn Judgments Act 1971 98.A.), 5.7(7) Re a Judgment Debtor (1939) 1 Ch. 601 No. 242 of 1986 Re: GORDON CAMPBELL McGILVRAY and Ex Parte FOREIGN COMMERCE BANK INC. and REGISTRAR IN BANKRUPTCY SOUTH AUSTRALIA, DISTRICT REGISTRY Forster, J. Adelaide 17 March 1986 IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION No. 242 of 1986 BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA Re: GORDON CAMPBELL McGILVRAY Debtor and: Ex Parte: FOREIGN COMMERCE BANK INC. Applicant and: REGISTRAR IN BANKRUPTCY SOUTH AUSTRALIA, DISTRICT REGISTRY Respondent JUDGE MAKING ORDER : FORSTER J. WHERE MADE 3 ADELAIDE DATE OF ORDER 17 MARCH 1986 THE COURT ORDERS THAT: i. The Registrar issue a bankruptcy notice in the form of Exhibit "6" to the affidavit of Grant Kingsley Feary sworn herein on March 1986. Note: Settlement and entry of order 1s dealt with in Bankruptcy Rule 124. IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY) GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE No. 242 of 1986 www eww OF SOUTH AUSTRALIA Re: GORDON CAMPBELL McGILVRAY Debtor and: Ex Parte: FOREIGN COMMERCE BANK INC. Applicant and: REGISTRAR IN BANKRUPTCY SOUTH AUSTRALIA, DISTRICT REGISTRY Respondent REASONS FOR JUDGMENT FORSTER J. : This was an application by Foreign Commerce Bank Inc. for an order directing the Registrar of this Court to issue a bankruptcy notice directed to Gordon Campbell McGilvray. The application was made under 5.14(5) of the Bankruptcy Act to review a decision of the Registrar to refuse to issue a bankruptcy notice. At the conclusion of the hearing I made an order as asked and said that I would give written reasons later which I now do. 2. The applicant obtained in two courts in Switzerland judgments against McGilvray dated respectively, 16 November 1976 and 11 May 1977. Pursuant to an order of the Supreme Court of South Australia made by Master Teesdale-Smith on 25 July 1985 it was ordered that the judgments be registered in the Supreme Court pursuant to provisions of the Foreign Judgments Act 1971 of South Australia in the total sum of $168,295-06. Provision was made for the registered judgments to bear interest on part of the sun. Clause 4 of the Master's order provided that the time within which the defendant might appeal from the order be extended for a period of 14 days from 25 July 1985. The Master also ordered that the defendant pay, with some exceptions, the taxed costs of his order. Application was made to the Registrar in the ordinary way for the issue of a bankruptcy notice against McGilvray for a sum including the registered judgments, interest upon portion pursuant to the Master's order and the taxed costs of the application to register the judgment. The Registrar declined to issue a bankruptcy notice for any of the sum claimed except as to $7,440-11 being the taxed costs of the registration proceedings. The applicant asked the Registrar to issue a bankruptcy notice for the whole amount mentioned in the order of the Supreme Court, less the portion with respect to which execution was stayed. The Registrar declined to do any more than issue a bankruptcy notice with respect to the taxed costs. 3. The applicant asked the Registrar to give his reasons in writing for refusing to issue a bankruptcy notice with respect to the amount of the registered judgments less a smail portion. The Registrar gave three reasons for declining to issue the bankruptcy notice. The first was that he had no evidence as to whether or not the defendant McGilvray had exercised his right to appeal to a judge of the Supreme Court against Master Teesdale-Smith's order. It mow appears, as the Registrar concedes, that McGilvray did appeal to a judge and that his appeal was dismissed. This ground therefore is no longer valid. The second ground given by the Registrar was based on his interpretation of s.41(3)(c)(i) of the Bankruptcy Act which is as follows - "(3) A bankruptcy notice shall not be issued in relation to a debtor - (c) in respect of a judgment or order for the payment of money made by the Court in the exercise of the jurisdiction conferred on it by this Act if- (i) a period of more than 6 years has elapsed since the judgment was given or the order was made;". The Registrar contends that since more than six years had elapsed since the judgments were originally given in 4. Switzerland when application for the issue of a bankruptcy notice was made, they could not form the basis of a bankruptcy notice because of the provisions of the section and notwithstanding that the judgments had been registered in the Supreme Court of South Australia. With all respect to him I think the Registrar has mistaken the meaning of s.41(3)(c)(i). I point out that the section proscribes the issue of a bankruptcy notice "in respect of a judgment or order for the payment of money made by the court in the exercise of the jurisdiction conferred on it by this Act" if the judgment or order is more than six years oid. Section 5 defines "the court" as meaning "a court having jurisdiction in bankruptcy under this Act". It seems to me to be plain that the judgment or order for the payment of money was made either by the Swiss Courts or the Supreme Court of South Australia and certainly not by a court having jurisdiction under the Bankruptcy Act in the exercise of that jurisdiction. It is to such a judgment or order that s5.41(3)(c)(i) refers. Whatever precisely the section may mean and encompass it is clear that it has no relevance here. The third ground given by the Registrar as I understand it is that s.7(7) of the Foreiqn Judqments Act 1971 of South Australia does not permit the issue of a bankruptcy notice with respect to the amount of a foreign judgment registered pursuant to the Act. Section 7(7) 15 as follows - "Subject to this Act, a registered judgment shall, for the purposes of execution, be of the same 5. force and effect as a judgment of the Supreme Court recorded at the date of the registered judgment, its execution shall be subject to the control of the Court, and proceedings may be taken thereupon as if it were such a judgment." The Registrar considers that this sub-section means that the only execution or other proceedings permitted to be taken with respect toa registered judgment are execution or other proceedings under the control of the Supreme Court which the issue of a bankruptcy notice plainly is not. In this I consider that the Registrar is mistaken. No doubt execution properly s0 ealled such as the issue of a Writ of Fi. Fa. must be subject to the control of the Supreme Court. It is my view however that the final words of the sub-section "and proceedings may be taken thereupon as if it were such a judgment" (viz. a judgment of the ' Supreme Court) are unlimited in scope and mean for present Purposes that bankruptcy proceedings may be taken on the registered judgment in the same way as they may be taken on a Supreme Court judgment given in one of its own actions. Were it otherwise the efficacy of registering a foreign judgment would be considerably diminished. Not only would it not be possible to take bankruptcy proceedings but also in the case of a smaller debt it would not be possible to register the judgment in turn in the Local Court and take advantage of the cheaper and, in one respect at least, wider powers of enforcement. Iam fortified 6. in the view which I take of s.7(7) by the judgment of Sir Wilfrid Greene M.R. in Re a Judgment Debtor (1939) 1 Ch. 601. I certify that this and the S preceding pages are a true copy of the Reasons for Judgment of Mr Justice Forster. . Associate 7"<~% *"- oe € Dated: / 7 AVa-- & CELE