Yee v O’Dea [2015] NSWSC 1752

Supreme Court New South Wales

Medium Neutral Citation: Yee v O'Dea [2015] NSWSC 1752 Hearing dates: 28 August 2015 Date of orders: 26 November 2015 Decision date: 26 November 2015 Jurisdiction: Common Law Before: RS Hulme AJ Decision: (1)The Defendant's Notice of Motion of 10 July 2015 is dismissed. (2)The Defendant is to pay the Plaintiff's costs of and incidental to the Notice of Motion Catchwords: Foreign judgments registration – debtor having no connection with jurisdiction of registration Legislation Cited: Foreign Judgments Act 1991 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Brenda Li Kwan Fung Lee (Plaintiff) Peter John O'Dea (Defendant) Representation: Counsel: CD Freeman (Plaintiff)

Solicitors: RE Barros & Company (Plaintiff) Peter John O'Dea (in person) File Number(s): 2015/142532 Publication restriction: No

Judgment 1. By Notice of Motion filed on 10 July 2015, the Defendant seeks to set aside the registration of a foreign judgment in favour of the Plaintiff effected in this Court on 16 June 2015 pursuant to Part 2 of the Foreign Judgments Act 1991 (Cth). The order for registration was served on the Plaintiff on 28 June 2015. (The Notice of Motion mis-states the date of registration as 8 June 2015. However, there is only one relevant judgment and the mis-statement is immaterial.) 2. The foreign judgment was of the High Court of Hong Kong Special Administrative Region Court of First Instance (Proceedings 1683 of 2008) on 8 June 2011. Although the Defendant may have been represented in the Hong Kong litigation until about April 2011, the judgment recites that ultimately he failed to appear. 3. The ground upon which the Defendant seeks that the registration be set aside is the principle forum non conveniens. 4. The facts relied on in support of that contention are that the Defendant resides in Victoria, has never conducted business in New South Wales, he is unemployed, his only income is $571 per fortnight from Centrelink and he is not in a position to obtain legal services in NSW. He says Legal Aid NSW has refused to assist him as he does not reside in NSW. Mr O'Dea complains that in combination, the circumstances amount to a denial of natural justice. 5. It also appears that Mr O'Dea has been made bankrupt in Hong Kong and that proceedings were taken by the trustees there appointed in the Federal Court of Australia in relation to Mr O'Dea's bankruptcy in Hong Kong. Those proceedings were commenced in the Victorian registry and the solicitor for the Plaintiff here acted for those trustees and caused Mr O'Dea to be served at his current residential address. In the course of the Federal Court proceedings Mr O'Dea has undertaken to provide notification of any change of address and asserts that there has been no change. 6. Section 7 of the Foreign Judgments Act sets out the grounds that a registered judgment can be set aside. It relevantly provides: 1. A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992 , to have the registration of the judgment set aside. 2. Where a judgment debtor duly applies to have the registration of the judgment set aside, the court: 1. must set the registration of that judgment aside if it is satisfied: