Sywak v Sywak [2009] NSWSC 1393

New South Wales Supreme Court

CITATION : Sywak v Sywak [2009] NSWSC 1393

HEARING DATE(S) : 3 December 2009

JUDGMENT DATE : 18 December 2009

JUDGMENT OF : Schmidt J

CATCHWORDS : PROCEDURE - judgments and orders - amending, varying and setting aside - setting aside the registration of a foreign judgment - whether there is a discretion to extend time to apply to have registration of judgment set aside - construction of s 6(5) of the Foreign Judgments Act 1991 (Cth) - application to extend time granted - registration set aside - costs

Acts Interpretation Act 1901 (Cth) LEGISLATION CITED : Foreign Judgments Act 1991 (Cth) Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 546 CASES CITED : Karam v ANZ Banking Group [2003] NSWSC 866 Ramanathan v Naidu [2007] NSWSC 693

PARTIES : Plaintiff - Helen Sywak Defendant - Simon Sywak

FILE NUMBER(S) : SC 11139 of 2009

COUNSEL : Plaintiff - Mr K Metlej, solicitor Defendant - Mr D Ash, counsel

SOLICITORS : Plaintiff - Craddock Murray Neumann Lawyers Defendant - Horowitz & Bilinsky

- 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SCHMIDT J Friday, 18 December 2009

11139/09 SYWAK v SYWAK

JUDGMENT 1 HER HONOUR: By a notice of motion filed in November 2009, the defendant Simon Sywak seeks orders under s 6(5) and s 7(2)(a)(x) of the Foreign Judgments Act 1991 (Cth) ('the Act'), firstly extending the time within which an application to set aside the registration of a UK judgment may be made and secondly, setting that registration aside. The issue lying between the parties turns on the proper construction of that legislation. 2 There is no dispute about the facts. The UK Brighton County Court gave judgment against Mr Sywak in November 2008, in the sum of £84,328.69. On 7 April 2009, this Court ordered the registration of that judgment in accordance with s 6 of the Act, the amount specified being $191,008.74. That sum was calculated in accordance with the provision made in s 6 for the calculation of the judgment debt in an equivalent amount in Australian currency, on the 'conversion day', namely the second business day before the day on which the application for registration was made (s 6(11)(b)). 3 On 29 May 2009, notice of the registration was served on Mr Sywak. On 9 June, he made an application to have the registration set aside, within the time specified in s 6(5) for the making of such an application. On 20 August that application was dismissed by consent. 4 On 2 September 2009 a bankruptcy notice claiming $191,008.74 was served on Mr Sywak. A creditor's petition was presented in October. On 20 November 2009, Mr Sywak paid £94,309.51 into Mrs Sywak's bank account in the UK. There is no issue between the parties that this payment satisfied the Brighton County Court's judgment. On 23 November, Mr Sywak filed the motion seeking that the registration of the UK judgment now be set aside by this Court. 5 Mrs Sywak opposes such an order being made. It is not in issue that as the result of currency movements since the conversion day, the payment made in the UK is not sufficient to satisfy the judgment registered in Australia in Australian dollars. It is also common ground that this is a separate debt from the debt arising under the UK judgment. Mrs Sywak claims that she was entitled to apply the payment made to the debt flowing from the Australian registration, with the result that while she accepts that the UK judgment has been satisfied by the payment, there is still over $20,000 due in respect of the Australian judgment, which she is entitled to pursue in the bankruptcy proceedings which she has brought against Mr Sywak. 6 Mr Sywak's case is that the UK judgment having been satisfied, his application that the Australian registration of that judgment be set aside, should be granted, s 7 of the Act making mandatory proven in that regard. That section relevantly provides: