Lewis v Lamb [2004] NSWSC 322

New South Wales Supreme Court

CITATION : Lewis v Lamb [2004] NSWSC 322 HEARING DATE(S) : 8 & 21 April 2004 JUDGMENT DATE : 21 April 2004 JURISDICTION: Common Law JUDGMENT OF : Hamilton J DECISION : Stay of execution granted in respect of judgment registered under Foreign Judgments Act 1991 (Cth).

CATCHWORDS : PROCEDURE [516] - Judgments and orders - Enforcement of judgments and orders - Execution against property - Warrants of seizure and sale or writ of fieri facias - Practice - Other cases - New South Wales - Stay of execution - Judgment registered under Foreign Judgments Act 1991 (Cth) - Principles on which execution may be stayed. Foreign Judgments Act 1991 (Cth) s 6(7) LEGISLATION CITED : Judiciary Act 1903 (Cth) s 78B Supreme Court Act 1970 s 23 Supreme Court Rules 1970 Part 42 r 12, Part 44 r 5, Part 59A Australian Workers' Union v Pilkington (Aust) Ltd (2000) 101 FCR 35 CASES CITED : Philip Morris (Aust) Ltd v Nixon [1999] FCA 1281 The State Bank of Victoria v Parry [1989] WAR 240 Ritchie's Supreme Court Procedure [6.1.7] PARTIES : Peter Lawrence Lewis (P) Russell William Lamb (D) FILE NUMBER(S) : SC 10911/04 COUNSEL : N A Cotman SC & J T Johnson (P) S J Motbey (D) SOLICITORS : Kemp Strang (P) Lyons & Lyons (D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HAMILTON J

WEDNESDAY, 21 APRIL 2004

10911/04 PETER LAWRENCE LEWIS v RUSSELL WILLIAM LAMB

JUDGMENT 1 HIS HONOUR: This is an application for a stay of execution of a judgment. The judgment concerned results from the registration in this Court of a judgment in the High Court of New Zealand at Auckland. The registration was effected under the provisions of the Foreign Judgments Act 1991 (Cth) ("the FJA") and Part 59A of the Supreme Court Rules 1970 ("the SCR"). The judgment is a judgment in favour of Peter Lawrence Lewis ("Lewis") against Russell William Lamb ("Lamb"). The amount of the judgment is some $NZ400,000. These gentlemen and entities associated with them are also involved in internecine strife in Australia. That takes the form for present purposes of proceedings in the Equity Division of this Court, the hearing of which has occupied more than 70 days before me. Oral submissions in those proceedings are at an end. Some written submissions are outstanding. It is hoped those written submissions will be received before and judgment will be able to be reserved on 4 May 2004. Lamb, against whom the judgment in these proceedings has been entered, is not himself a party to the claim in those proceedings, but he is the controller of Lamru Pty Limited ("Lamru"), which is the principal player on his side of the record. Kation Pty Limited ("Kation") is the corresponding player on the other side of the record, but Lewis himself is also a party. 2 At one stage it was suggested that a constitutional issue would arise on the hearing of this application and that it would be necessary to give notice of the proceedings to the Attorneys General of the Commonwealth and the States pursuant to s 78B of the Judiciary Act 1903 (Cth). This was on the basis that the FJA, being Commonwealth legislation, somehow or other interfered or could be argued to interfere with or diminish or constrain the exercise of the jurisdiction of this Court in its determination of this application. That contention has been abandoned and I think rightly so. Section 6(7) of the FJA provides that a "registered judgment has, for the purposes of enforcement, the same force and effect, and the registering court [namely, this Court] has the same control over the enforcement of a registered judgment as if the judgment had been originally given" in this Court. It seems clear that the policy of the FJA is to preserve intact the powers of the registering courts to control the enforcement of registered judgments in the same way as they would control the enforcement of their own judgments. 3 Lamb originally moved for a stay of execution under Part 42 r 12 of the SCR, which requires, for the power to be exercised, the establishment of some matter occurring after the judgment takes effect. However, on the argument of the application he has relied as well on Part 44 r 5 of the SCR, which provides simply that the Court "may, on terms, stay execution of a judgment or order". He has also relied on the inherent power of this Court to control its own judgments, which still exists, and in terms as wide as the power conferred by Part 44 r 5: see Ritchie's Supreme Court Procedure [6.1.7]. He even mentioned s 23 of the Supreme Court Act 1970 as a possible source of power. 4 The judgment entered in the High Court of New Zealand was a consent judgment entered pursuant to a settlement of those proceedings among Lewis and Lamb and various other parties who were involved in their affairs in New Zealand. The agreement is embodied in a deed which bears date 15 August 2003 ("the settlement deed") and the judgment was entered shortly afterwards. So far as the settlement deed deals with matters as between Lewis and Lamb, by clause 14 it provides that Lamb accepts that Lewis "is entitled to judgment against him in the total sum of $400,000 ('the Lamb Judgment')". By clause 15 Lamb consents to judgment being entered against him in the stipulated sum "subject to paragraph 19". By clause 16, Lamb accepts that he has no defence to a claim by Lewis in the amount for which judgment is to be entered. The settlement deed then proceeds as follows: "17 Mr Lamb agrees that the Lamb Judgment may be registered and enforced by Mr Lewis in New Zealand and/or Australia and/or anywhere else. 18 Mr Lamb agrees not to take any steps to set aside, appeal and/or reopen the Lamb Judgment in New Zealand and/or Australia and/or anywhere else. This agreement is subject to paragraph 19. 19 Mr Lewis shall not to [sic] take any steps to enforce the Lamb Judgment before 5pm on 31 March 2004. It is acknowledged that this Deed does not prevent Mr Lamb seeking to stay the enforcement of the Lamb Judgment after 31 March 2004 and before the delivery of the judgment of Hamilton J in the Australian Proceedings."